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Tuesday, January 11, 2011

Horsemen's Alert: ICE Stepping Up Enforcement of Employer Immigration Regulations

Special Agent Guevara of the Immigration and Customs Enforcement (ICE) Agency met with Louisiana horsemen at the Fair Grounds earlier last week. Essentially, he gave horsemen fair warning that if they did not comply with the E-Verify or I-9 requirements – requirements which hold that employers must file reports that any foreign workers in their employ carry the required documentation – they (the employers) will now be held responsible under the new immigration laws. Employers who do not comply with verification requirements can be subject to fines and/or jail time.

Special Agent Guevara’s message was consistent with the approach that the ICE agency is taking nationwide in holding employers accountable instead of employees. Recently, there have been numerous indictments and convictions of employers who have been given notice that their employees lack proper legal authorization to work in the United States.

Will Velie of Horseman Labor Solutions (an adviser to the National HBPA) spoke with Robert Deasy, Chief Liaison of the American Immigration Lawyers Association, and Deasy was adamant in expressing that the fair warning the trainers were given will not be the final action that ICE will take in relation to the recent meeting.

The H-2B program is once again workable and fairly consistent. Many trainers Will and Horseman Labor Solutions (HLS) have been/are working with are receiving certification from USDOL, approval from USCIS, and getting visas issued by the State Department Consulates in Mexico and Guatemala. Many of the difficulties encountered in workers obtaining H-2Bs in past years have largely been resolved due to the changing of the H-2B regulations and the active engagement of the National HBPA, American Horse Council (AHC) and National Thoroughbred Racing Association (NTRA) with the agencies to better forge understandings between the agencies and associations.

However, as regards the recent enforcement efforts, the most direct course of action to proactively work with agents of the ICE will be to:
  • Take part in the H-2B program for foreign workers.
  • Demonstrate HBPA members are actively seeking interested qualified Americans for available jobs.
  • Paying prevailing wages, and;
  • Attempting to meet the spirit of immigration regulations designed to protect American workers.

The process is fairly straightforward. Horsemen must follow the criteria established by three separate agencies: USDOL (U.S. Department of Labor), USCIS (U.S. Citizenship and Immigration Services), and the State Department. While this may seem daunting, the burden is manageable.

The one difficult issue that does not have a clear solution is the case of foreign workers currently in the U.S. without legal authorization to work. This is a problem all over the United States  - not just Louisiana, nor is it limited to only the racing industry.

The illegal presence of the worker in the U.S., once proven, renders that worker ineligible to change his or her status to “legally authorized to work in the U.S." Therefore – even if the employer is approved by USDOL and USCIS to have H-2B visas – often the employer’s best workers are ineligible to change status to H-2B status.

The law requires a person who is not currently in legal status to return to his or her home country to apply for a new visa to enter the US.

Unfortunately, to further complicate matters, a separate provision of the law establishes that a person in the U.S. without legal authorization for more than one year may not return to the U.S. for ten years.

Possible Solution(s) Proposed by Horseman Labor Solutions

A waiver does exists to allow the person to return on a non-immigrant visa such as an H-2B. The waiver, called a INA 212(d) (iii) waiver (click here to see), is a broad waiver provision that allows applicants for admission as non-immigrant’s to overcome almost any ground of inadmissibility.

The Section 212(d)(3) waiver is thus available to the vast majority of inadmissible individuals. The 212(d)(3) waiver must be anchored to a non-immigrant visa, such as a tourist, student or H-2B visa.

For example, an individual who has been deported from the United States because of a criminal conviction but has since returned to his or her home country and now has an offer of employment from a U.S. company can petition for an H-2B visa, and it is within the discretion of the Attorney General to grant or deny the waiver.

The waiver approach as described above, may provide the solution that the horsemen need to be granted a one-time large scale approach to getting a fresh start.

Horseman Labor Solutions proposes that if horsemen who have not done so already would commit to enrolling in the E-Verify program (online USCIS database of individuals authorized to engage in employment) and actively comply with the U.S. worker protections of the H-2B visa program and then provide the right presentation by the horsemen associations to the State Department, then USCIS, ICE and CBP (Customs and Border Protection) might agree to allow the workers to go to their home country, gain issuance of their visas (State Department jurisdiction), and then be admitted back into the United State by CBP on new H-2B visas.

The new H-2B visas could be petitioned for, and the workers could remain in status in the U.S. in ten month increments for up to three years at a time before being required to return home for a three month period – after which a new three-year eligibility period will open for the worker.

The key would be the willingness of the State Department and the CBP to work with the racing industry and recognize the waivers.

There would also need to be a commitment from horsemen that workers already here in the U.S. illegally do not present a threat to public safety. So long as these employees’ only violation was/is being in the U.S. illegally, and so long as they return to Mexico for visa processing and are honest in their interviews with State, we could solve an enduring, widespread, and until now intractable problem for the horse racing and breeding communities.

We have natural allies in Congress and other associations, and we have a fairly good case to make to enforcement that the horsemen are taking definitive steps to comply with immigration law.

The first step should be to meet confidentially with the trainers to diagnose the extent of the problem, put together a timeline for implementing the H-2B process, and coordinating the presentation of the proposal to State and USCIS to gain 212(d)(iii) waiver assurances.

If we can gain assurances that this is a feasible plan, then the same plan could be executed in other states that have not yet been confronted with the new enforcement regime that is coming.

One thing is certain – based on conversations with immigration specialists, there is a new cooperative effort between the current administration and Congress to step up enforcement against employers. And, unfortunately, the horse racing and breeding communities are an easy target.

On Friday, January 7th, National HBPA will meet via conference call with representatives of Horseman Labor Solutions, officers of the Louisiana HBPA, and racing/breeding industry representatives from Washington D.C. (NTRA, American Horse Council). Our goal will be to evaluate all possible approaches – including the solution proposed by HLS above – aimed at mitigating the current situation.

In the meantime, the National HBPA strongly recommends that any horsemen wanting to enroll in the E-Verify program or who need more detailed guidance, should contact Horseman Labor Solutions at (405) 922-3210.

If you haven't already, we also recommend you click here read the article "The HBPA at Work Helping Horsemen Adapt to Immigration Change" from the Winter 2010 issue of The Horsemen's Journal.

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