Day At The Track

IMMIGRATION & HARNESS RACING

06:24 PM 03 Jul 2006 NZST
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Courtesy Of Chris E. Wittstruck, Esq. and The United States Trotting Association

The care, training and breeding of racehorses is extremely labour-intensive. Even a domesticated, non-racing equine requires constant and unabated care. Left to themselves, stabled horses ingest food, evacuate waste and breathe.

Everything they accomplish is completely dependant upon humans, including providing access to the food ingested and removing the waste created. Though mature and healthy by animal standards, the racehorse’s ability to “function” in human terms is most closely associated with that of an infant or a nursing home patient.

Grooms and caretakers, farriers and vets, dentists and therapists, (hot walkers and exercise riders for thoroughbreds) are indispensable supporters of the steed’s very existence. This is in addition to trainers, transporters, feed suppliers, breeding farm staffers and related employees.

The 2005 economic study done by Deloitte Consulting LLP for the American Horse Council Foundation, an adjunct of our industry’s chief lobbying group, concluded that our nation’s horse industry in general directly employs 701,946 people. Since some are part-time or seasonal workers, the study adjusts this figure and concludes that the industry provides 453,612 full-time equivalent jobs.

Of these, close to 150,000 are specifically related to the racing industry. A large percentage of these people provide direct care for the over 844,000 racehorses in America. As harness racing experiences a resurgence, especially in new “racino” states like New York and Pennsylvania, the need for horses, and thus horse-related employment, can be expected to increase.

Hands-on work with horses requires a modicum of skill and a measure of physical agility, not to mention a proper temperament. Those folks who think that anyone can muck out a stall, put on a harness or give a headstrong horse a bath are the ones who have never tried it. True, for those who undertake caring for horses as a vocation, the work can be both emotionally and spiritually rewarding. Of course, the reality is that the typical caretaker receives little in the way of financial reward. Nobody reading this article is preparing his or her child for a career as a groom. That’s especially true if the reader is a groom! That statement is not meant to demean in any way the good, honest work of career horsepersons. Simply, it is a recognition that the job is a difficult and dirty engagement for which the employee is relatively poorly compensated. The same can be said for nannies, housecleaners and low-end maintenance workers. In America, nobody strives to attain these jobs.

Where do domestic farms and trainers find labor to fill unattractive positions? Ascertaining the answer requires nothing more than a brief stroll down the backstretch of any American racetrack. The chatter, whether in heavily-accented English or a Spanish dialect, readily discloses that horse care is performed in large part by an immigrant population. The ease by which an employer may hire foreign help, and the legal status of that help, is critical to the proper maintenance of a professional stable operation. Accordingly, immigrations laws that both serve a rational purpose and allow for a streamlined procedure for sponsorship of a prospective employee are important. Unfortunately, the lines of Emma Lazarus’ poem at the base of the Statute of Liberty ensuring entrance of the tired, poor and “huddle masses yearning to breathe free” have in recent years been rendered more idealistic than realistic.

A foreign national who wishes lawful entry into this country as a permanent resident has two main options. One is to marry an American citizen, a procedure known as “spousal adjustment.” Obviously, this vehicle excludes married individuals, and requires a “legitimate” marriage, and not one trumped up solely to obtain status and/or employment. The other is to seek what is known as “labor certification,” a long, drawn-out process with several pitfalls, not the least of which is the government’s desire to permit entry to only highly skilled individuals or those where the government feels a true need for permanent foreign laborers exist. Obviously, neither of these approaches is of much help to the equine industry. Thus, the industry is relegated to seeking “band-aid” approaches to satisfy its labor requirements.

Presently, trainers and farm managers rely on a guest worker plan known as the H-2A Agriculture Worker Program to fill their employment needs with temporary, non-immigrant laborers. First, the prospective employer must obtain a Temporary Labor Certification from the U.S. Department of Labor, proving that there are no U.S. workers available for the proposed work. The H-2A visa can be issued to an alien worker only if the employer has engaged in an expensive and cumbersome positive recruitment effort for U.S. workers through newspaper and radio advertising, setting out only those job specifications essential to carrying out the activity. Independent of the employer, the Department of Labor circulates the job offer around the country seeking U.S. workers.

Essentially, the employer must time and again convince the government of the obvious; that U.S. workers don’t want the jobs. This recruitment must go on through the first half of the contract period after alien laborers are admitted. Additionally, the rate of pay must be the applicable Adverse Effect Wage Rate (“AEWR”), an hourly amount substantially higher than the federal or state minimum wage rate and the applicable Prevailing Wage Rate (“PWR”).

The AEWR, unlike the PWR is a flat rate that is paid across the country and is an average of all workers in a specific industry, as opposed to a specific occupation within the industry. In essence, equine industry employers availing themselves of the H-2A visa program pay a wage penalty for hiring foreign laborers. This is in addition to the requirement that the employer provide the worker free room and board. Moreover, the “temporary” nature of the visa permits a work status for less than a year. In sum, horsemen are required to engage in an expensive, intensive, hyper-technical legal process in order to gain the possibility of some short-term help.

Many backstretch jobs are filled via the H-2B Non-Agricultural Visa Program. In addition to domestic recruitment and other burdensome requirements, there is a stringent 66,000 per year limit on the number of foreign workers who may receive H-2B status, with some very limited exemptions. This is the nationwide cap, meaning that backstretch employers must compete for the finite visas with similarly needy employers in all endeavors. Even if successful, the job must be for less than one year. As with its agricultural counterpart, the importation of seasonal labor through this visa subjects both employer and employee to a high degree of scrutiny, the lack of willing domestic labor for the positions notwithstanding.

Recognizing that immigration laws don’t work well in general, the present Congress decided to tackle the numerous existing problems through widespread reform and overhaul of the entire system by which aliens are admitted, regulated and expelled from our country. This effort resulted in the creation of two divergent pieces of legislation and a firestorm of protest, the likes of which haven’t been seen since the Civil Rights Movement of the 1960s.

In December 2005, the U.S. House of Representatives passed The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (“H.R. 4437”). As the title implies, this bill is geared almost completely towards enforcement. The legislation establishes a 700 mile fence along the Mexican border, declares illegal presence in this country a felony and criminalizies the act of merely aiding illegal aliens. Its purported “reform” provisions are clearly an attempt to curtail entry of immigrant workers, and enhance the ability to deport those already here. Passage of the bill led to the well-organized nationwide protest on May 1 of this year known as “A Day Without Immigrants,” where undocumented aliens were encouraged to boycott school, work and consumer purchases. Whether or not a supporter of increased vigilence due to the threat of terroism or otherwise, it is undeniable that adoption of H.R. 4437 would spell disaster for the alien employment prospects of the horse industry.

Luckily, the United States Senate failed to follow the House’s harsh lead. On May 25, S. 2661, The Comprehensive Immigration Reform Act was adopted. S. 2661 attempts to strike a balance between concerns regarding illegal immigration enforcement and our country’s manifest need for foreign labor.

In addition to proposing an increase in border patrols, the bill adopts the provisions of agricultural immigration reform legislation previously introduced by Senator Larry Craig (R-ID). The Agricultural Job Opportunity, Benefits, and Security Act, known as the “AgJOBS Bill,” reforms the H-2A visa process by allowing mere employer attestation of need for immigrant workers to replace the presently required Department of Labor certification. Additionally, AgJOBS freezes the applicable AEWR for three years at its 2003 level and, assuming no further action, replaces it with the PWR. Further, the AgJOBS portion of S. 2661 establishes a so called “Blue Card Program” which allows temporary agricultural workers qualifying based upon length of employment to apply for adjustment to permanent resident status. Other provisions of S. 2661 permit certain illegal aliens to obtain permanent resident status as well. It is for these and other provisions that S. 2661 is referred to by some as an “Amnesty bill.”

When the House and Senate versions of the same piece of legislation conflict, the respective leadership of the two bodies appoint from among their ranks members of a joint conference committee to hash out differences. As of this writing, the conferees for H.R. 4437 / S. 2661 have yet to be selected. Given that this is a congressional election year, the likelihood of such appointments being made soon for such a controversial issue are slim. This fact, coupled with the numerous convergent provisions contained within the bills themselves, make it a distinct possiblity that both versions may simply die a slow, quiet death, thus frustrating any chance for meaningful immigration reform.

The American Horse Council supports S. 2661, and especially its AgJOBS provisions. James J. (“Jay”) Hickey, President of the Council since 1993, states it plainly, “The horse industry is not against immigration law enforcement, but it will be devastating if we can’t form a process to legally hire foreign workers when we can’t find Americans to do the jobs.” As one prominent but anonymous horseperson stated, “Harness racing is very big in many countries, much bigger than here. If we have jobs for foreign workers, and prove that we advertised the job titles in this country for the same salaries, we should be able to easily hire people from foreign countries to do the jobs Americans don’t want.”

Immigration, always a hot-button issue, has been a source of severe division since 9-11. The debate rages on, from the halls of congress to the water cooler in the hall of the office. There appears to be no end in sight to the controversy. From our perspective, there is one very consistent thread that runs through the entire debate: Tomorrow morning, over 800,000 racehorses in this country are going to need a bath. If you aren’t going to wash them, who will? That’s the bottom line.

Chris E. Wittstruck, an attorney and Standardbred owner, is the founder and coordinator of the Racehorse Ownership Institute at Hofstra University, New York and a charter member of the Albany Law School Racing and Gaming Law Network

ourtesy Of Chris E. Wittstruck, Esq. and the United States Trotting Association

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