It's no secret that the Thoroughbred world – on both the racetrack and the farm – has been suffering from the same labor shortage that's been squeezing many other industries in the last year. The racing world has long relied on an immigrant labor force to take care of racing and breeding stock, and navigating the legalities of immigrant labor is becoming ever-more complicated.
Will Velie, an Oklahoma-based immigration attorney who often assists the National Horsemen's Benevolent and Protective Association in immigration matters, provided an update on the current climate at the recent University of Kentucky National Conference on Equine Law.
Here are a few of the takeaways:
-The crunch we're feeling now on immigrant visas began years ago, and predates the current presidential administration.
“The changes really started in 2017,” Velie said. “During the previous administration, there was a full-scale, sustained attack on immigration. It wasn't just changes in policy that were widespread, it was the diminishment of the operational capabilities of the agencies, where the people that did the daily work were either phased out or not replaced.”
The drastic reduction in staffing has resulted in ballooning wait times for the processing of standard paperwork. Velie said there was a time when certain parts of immigration cases could be completed in 90 days; now, he has some wait times stretch past 18 months.
-There may be as many as 11 million people in the United States without legal status, according to lawmakers. Velie said there are typically three paths to acquiring legal status for someone who is already here.
If the person came to this country when they were 16 or younger, they would normally qualify for Deferred Action for Childhood Arrivals (DACA), but since there are constitutional law questions related to that now, Velie said that pathway is blocked for the moment. If someone filed for amnesty for the person prior to 2001, the person may be able to pursue that. The third way is the person could show they have a qualifying relative who's a U.S. citizen or permanent resident who would suffer “substantial hardship” if the person was forced to leave.
-Velie has seen cases where the delays and existing regulations are combining to give clients very limited choices in how to pursue legal status. If an immigrant is here in an H2-A visa, for example, and has turned in an application for a green card, they're not permitted to leave the country while the case is pending, or else their immigration case is considered abandoned. However, in order to work legally, they have to get work authorization. Because of the delays, Velie has seen situations where someone's work status expired before a new one was issued, so they could not work here legally but also could not leave without abandoning their immigration case. If the person is found to have worked illegally, they forfeit their case then, too.
“About a month ago, I got a request for evidence that said, 'Your client filed in October 2020. He does not have work authorization. Tell us how he is supporting himself while he's in the United States,'” said Velie. “That's real. I'm not making that up … that's the kind of attack on immigration I think was intentionally designed to make immigration so difficult and so onerous people would just give up and go home.”
-COVID-19, predictably, made it even more difficult for people using a work visa program.
“There's a significant number of people on the ground who don't have proper documentation … especially on some of the farms,” said Velie. “The labor shortage in the U.S. was acute, it was acute for many years, but since COVID it has really dried up.
“Trainers say people used to come to our barns and ask for work, and now there's just nobody.”
For a period of time after the start of the pandemic, all U.S. consulates were closed. Then they reopened, and eventually the borders became more open to people with legal status who had been vaccinated against COVID-19, but vaccines are not as readily available in all countries as they are in the United States. Velie said the vaccination rate in Mexico at the time those regulations came out was only about 15%. Vaccination also only counts if it's from a vaccine recognized by the U.S. Food and Drug Administration, which means some vaccines may not apply. These factors bottlenecked the arrival of workers even after domestic restrictions began lifting and life began looking a little more normal for Americans.
-Velie believes that intense work from lobbyists on behalf of the racing and sport horse industries have helped give those industries a better footing when navigating the current immigration climate. The Groom Elite program has proved a useful tool in demonstrating to immigration authorities that racing is serious about looking for workers already in this country and is willing to train them, but also that the number of people willing to undergo that training is not enough to meet the overall labor need on the track.
Racing relies heavily on H-2B visas, which are for seasonal work, while H-2As are used for agricultural labor. Trainers who migrate between racetracks are able to divide the life of their business into two “seasons” – spring and fall. In the spring, there's much more competition for seasonal worker visas as resorts gear up for the summer season, but horsemen who apply in October for fall/winter visas have a better shot at getting through. H-2B visa holders can work for 10 months, return home for two months, and come back.
Returning workers do not count toward the annual cap on H-2B visas.
Unfortunately, H-2B is one of the more burdensome visas in terms of the required recordkeeping, including timecard information and overtime payment, compared to other types of visas. This, Velie said, has contributed to some of the headlines racing has seen in recent years as high-profile trainers have been hit with fines and back wages.
– Velie emphasized it's far easier to help a trainer take part in the appropriate visa programs and help them connect with future employees than it is to help someone navigate the process when they're already in the states and have either fallen out of legal status or never attained it.
Velie said that through his affiliation with the NHBPA, he regularly visits tracks across the country and holds meetings on the backstretch where people can ask questions and seek advice confidentially. He estimates he's able to help people about a third of the time, depending on their circumstances.
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