Editor’s Note:
This article is the sixth in our series relative to federal issues affecting the horse industry. This week’s article deals with the use of temporary alien workers in the horse industry.

Temporary Worker Programs and the Horse Industry

For some time, there has been a shortage of entry-level workers, such as farm and training center workers, grooms, hot walkers, and similar employees in the horse industry. This has forced the industry to rely on alien workers.

The Immigration and Naturalization Service (INS) as well as State and Federal Departments of Labor must approve the admission of any alien to the U.S. for employment. Applications are filed with both agencies. The U.S. Consulate in the alien’s country is also involved.

Background-Current Farm-Worker Programs
To satisfy the need for workers, horse owners and breeding or training facilities use the “H-2A Agricultural Worker” program to bring aliens into the country as temporary, non-immigrant workers. This program allows agricultural workers to enter the United States to harvest crops or do seasonal labor. The primary problem is workers at breeding and training farms are generally needed for longer periods of time, and the H-2A program only permits a worker to stay in the United States for less than one year.

For this reason, the “H-2A program” does not fully satisfy the specific needs of the horse industry for workers. The current immigration laws do not fit the employment needs of the horse industry and make it very difficult and cumbersome to employ alien workers. Since the industry can expect the shortage of entry-level workers to continue, if not worsen, resolution of the immigration problems is an important issue for the horse industry.

Problems with Current H-2A Temporary Program’s Wage Rate
One of the horse industry concerns is over the wage rate and how it should be determined. Currently only H-2A workers use the Adverse Effect Wage Rate. This is a flat rate that is paid across the country and is an average of all workers in a specific industry. All other temporary worker programs use the Prevailing Wage Rate which is determined state by state and region by region. The Prevailing Wage Rate is also based on each individual industry and specific occupation. Officials in the regional office of the Department of Labor will consider each of these different factors and determine what the rate of pay should be for each job.

Background-Current Backstretch Programs
Alien workers at racetracks are not considered agricultural workers and do not qualify for the H-2A program. Rather, grooms, hot-walkers and other stable workers employed by trainers at tracks, are admitted to the U.S. for temporary employment as H-2B temporary, non-immigrant workers in a specialty occupation. Individuals admitted into the U.S. as H-2B workers are permitted longer stays than agricultural workers.

A number of state horsemen’s associations have organized on-going programs to employ and bring aliens into the U.S. to work on the backstretch under what might be termed “groom visa” programs. These have worked fairly well, although they can be expensive. In addition, there is often a problem with these alien employees moving from state-to-state because different state and regional offices of the Department of Labor are involved. This might require additional approvals for these workers from such offices.

Congressional Action
Senator Larry Craig (R-ID) has introduced the “AgJOBS Act” (S. 1161). This bill is designed to simplify and streamline the application process for temporary worker programs. If enacted it would provide for a standard prevailing wage rate instead of the adverse wage rate. Under the Craig measure, transportation would still be required as would housing unless the Governor of each states certifies that there is adequate HUD housing available. This measure would also increase the amount of time that a worker would be allowed in the country from 8 to 10 months. It would require workers to work for a longer period before they would be eligible for legal permanent status.

In addition, Senator Edward Kennedy (D-MA) has introduced the “H-2A Reform and Agricultural Worker Adjustment Act of 2001” (S. 1313). This bill is also designed to revamp current temporary worker programs. The bill would also address the contentious issue of status adjustment.

While both the Craig and Kennedy bills are similar, the major difference between the bills is the wage rate. Under the Kennedy provision, a commission would be established to study whether the Adverse Effect Wage Rate is the appropriate wage standard or whether alternative wage protections such as the prevailing wage should be adopted.

Another bill that was introduced was the “Wage Equity Act of 2001” (S.1442), introduced by Senator Zell Miller (D-GA). This measure is similar to H.R. 2457, the “Wage Equity Act of 2001” by Reps. Chris Cannon (R-UT) and Sanford Bishop (D-GA). Both provisions would change the minimum wage requirement for the H-2A program to the prevailing wage in the area and occupation of intended employment, a reform users of the program have sought for a number of years.

There is speculation in the Agriculture community that there will be another attempt at a compromise between these pieces of legislation before the end of this Congress. Specifically, a new bill may be introduced that would encompass all of these aspects and compromise on the wage rate.

AHC Position
The current H-2A program does not fully satisfy the alien employment needs of the horse industry. The labor certification process is very cumbersome and expensive. The wage rate is out of reach for many farmers and only H-2A users must provide housing and transportation for workers. None of the bills specifically addresses the needs of the horse industry.

Temporary Worker Reform and Extension of Section 245(i)

The events of September 11, 2001 caused the Bush Administration to push aside immigration related issues. After months of relative inaction on immigration issues and motivated by the President's early March 2001 meeting with Mexican President Vicente Fox, the Bush Administration has begun actively working again to extend Section 245(i).

The House of Representatives has voted to extend Section 245(i) as part of the Border Security Bill. Earlier this Congress, the House already voted on the issue of border security. The only difference between this border security bill and the one already passed is that an extension of Section 245(i) is included in this version. At this point, it is unclear if and when the Senate will take up this measure.

Section 245(i) is a provision that would allow people who are already eligible to apply for permanent residency based on a close family member or employer sponsor. The eligible individuals must also pay a fine and obtain their immigrant visas in the United States.

Section 245(i) offers an alternative to people having to leave the country to pick up their visas and be separated from their families and employers for three or ten years. Without Section245(i), individuals must leave the United States and go to a U.S. consulate abroad to obtain the immigrant visa needed to reenter as an immigrant.

Under the most recent extension of 245(i), passed last Congress, eligible immigrants were required to show that they had resided in the United States prior to December 21, 2000.

Only certain prospective lawful permanent residents, under close and careful scrutiny of Federal authorities, can use Section 245(i). People using Section 245(i) must be otherwise eligible to become permanent residents.

For opponents of this extension, the issue is not whether these immigrants are eligible or not, nor when they could adjust their status, but rather from where they could apply to become permanent U.S. residents. Some of the people who use 245(i) include people who were not inspected and admitted at the border, who were in transit without a visa, who came in as crewmen, or who worked without authorization or otherwise violated their non-immigrant status, even if the violation was technical.

Current Extension Proposal
Under the provision passed in the House, by a margin of 275 to 137, some illegal immigrants will be allowed to stay in the country while their residency paperwork is being processed. More than 600,000 illegal immigrants were eligible for this extension under the Legal Immigration and Family Equity Act to apply for visas without leaving the country, but it expired last April. However, under this extension those illegal immigrants must be able to prove they are spouses or relatives of U.S. citizens, legal residents or employees sponsored by employers before Aug. 14.

This provision extends the deadline to November 30th, or four months after the regulations are issued, whichever comes first, giving illegal immigrants the chance to apply for residency without leaving the United States. Many of those immigrants are here on work visas that have expired, but they did not leave the country.

Horse Industry Concerns
One of the issues that concerned the horse industry involved the possibility that local INS field offices may use these applications against farm owners and workers. In April 2001, Senator Mitch McConnell (R-KY) wrote a letter to the Department of Justice asking the department to address this concern. In response the INS has instructed INS field offices not to "initiate removal proceedings against an individual who is an alien eligible for adjustment under section 245(i)." However, it is still unclear as to whether an immigrant can work while his application is being processed. Unfortunately, this bill does not address this issue.

AHC Position
The AHC supports this bill and provision. This extension is a step in the right direction, in helping secure a reliable work force for the horse industry.