Legislative Issues & Policies - Immigration: Temporary Worker Programs

Introduction
For some time, there has been a shortage of entry-level workers to satisfy the agricultural and non-agricultural employment needs of the horse industry.

• Horse breeders, ranchers, training facilities, horse shows, trainers and others depend on seasonal and long-term foreign workers to fill labor demands not filled by American workers.

• Many employers in the horse industry are also concerned that without comprehensive immigration/guest worker reform that will allow them to legitimize their current workforce and meet their labor demands, the industry could be put in an untenable situation economically.

For these reasons, the issue of comprehensive immigration and guest worker reform is important to the horse industry.

The U.S. Citizenship and Immigration Service, 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. This is a long, time-consuming and expensive process currently.

H-2A Temporary 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 do seasonal labor in the horse industry. The current immigration laws do not completely satisfy the employment needs of the horse industry and make it very difficult and cumbersome to employ alien workers.

The drawbacks to the current H-2A Agricultural Worker program are many. The admission process is long and cumbersome. A streamlined process would be beneficial and less costly.

Another concern is the wage rate required to be paid and how it is determined. Only the H-2A agriculture worker program sets the required wage based on the “Adverse Effect Wage Rate” (AEWR). 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.

In addition, many in the industry are concerned that they would lose some alien workers during any transition period if existing workers prove to have documentation that is insufficient.

Finally, the H2-A program permits a worker to stay in the United States temporarily, which is defined in the law as up to ten months. Some agricultural jobs in the horse industry are for a longer period and many would like to have alien workers for a longer period.

H-2B Temporary Worker Programs
The H-2B worker program is used for lesser-skilled, non-agricultural workers employed in many industries, including the horse industry. It is for “temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.”

In the racing industry individual trainers and horsemen’s associations have organized, on-going programs to employ and bring aliens into the country to work on the backstretch or at horse shows under H-2B visa programs.

Unfortunately, there is a cap of 66,000 on the number of H-2B visas that can be issued annually. Each year, once it has received enough petitions to meet the year’s Congressionally-mandated cap of 66,000, the U.S. Citizenship and Immigration Services (USCIS) announces that it will not accept any more petitions for H-2B foreign workers for the Fiscal Year. This has seemed to occur earlier each year.

This affects foreign workers in many industries, including those in the horse industry who work in semi-skilled jobs at racetracks, horse shows, fairs and similar non-agricultural activities. Last year it prevented them from being issued H-2B visas after January 3.

These programs can be affected each year by the cap, depending on when the admission period for the workers ends, whether it involves new workers or the extension of existing H-2B visas and other factors for particular workers.

House Action - The Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005
On December 16, 2006, the House of Representatives passed “The Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005” (H.R. 4437), introduced by the Chairman of the House Judiciary Committee, Representative James Sensenbrenner (R-WI). This legislation focused mainly on an “enforcement first” approach to immigration and foreign workers in an effort to tighten our borders and implement strict enforcement policies against illegal immigrants and American employers responsible for hiring them.

While the horse industry supports border security, there is concern that an “enforcement first” approach without needed, broader immigration reform could have severe affects on the horse industry.

This bill provides for heavy restrictions and penalties on U.S. employers who do not comply with the new enforcement policies. The key provisions of the bill that would affect U.S. employers in the horse industry are:It contains no guest worker or adjustment of status provision for undocumented workers, which could result in a labor shortage and the loss of many experienced employees.

After two years, all U.S. employers would be required to use a telephonic and electronic verification system to determine a worker’s employment eligibility. This system would be costly and burdensome to implement and use.

Under the new system, no later than 6 years after enactment, employers would have to re-verify all alien employees, regardless of when they were hired.

Employer penalties for hiring and continuing to employ undocumented workers, as well as failing to use the new telephonic and electronic verification system, would be substantially increased. Fines could be implemented with a maximum of up to $50,000 penalty per illegal alien for knowingly hiring or continuing to employ illegal aliens or failing to use the new verification system.

Definitions regarding recruiters and referrers important to the horse industry would be changed in a manner that would be very difficult to follow, including requiring U.S. employer to travel to a foreign country and interview all prospective employees face-to-face. Failure to verify potential employees electronically prior to recruitment or referral would result in the minimum fine of $5,000 per worker.

Senate-Passed Bill
Before the Memorial Day, recess the Senate passed broader immigration reform legislation on a vote of 62 to 36. The Senate bill is much broader than the legislation that passed the House. It includes strict enforcement provisions, like hiring more border patrol agents, funding for national guard troops, the use of new technologies, tamper-proof identification cards to replace social security cards and increased penalties of up to $20,000 on employers who hire illegal aliens, and also reform legislation.

Agricultural Provisions in Senate Bill. Importantly, the bill includes the so-called AgJOBS bill, introduced by Senator Larry Craig (R-ID) and Congressman Chris Cannon (R-UT). The AgJOBS provisions have been supported by the agriculture industry for some time and which would be helpful to the horse industry. The provisions would:

• Replace the current labor certification process it with an expedited labor condition application.

• Streamline and reduce advertising and other domestic recruitment costs.

• Eliminate the open-ended “adverse affect” wage criteria.

• •Mandate expedited processing of H-2A petitions.

• Provide immediate work authorization upon filing petitions for extension of stay.

• Mandate removal of aliens who violate their visas.

• Provide a secure identity and work authorization document for H-2A aliens.

Summary of the Earned Adjustment of Status of Agricultural Worker Provisions. The bill would also create a means for aliens who have made a substantial commitment to agricultural work in the United States, but do not have valid documentation, to earn adjustment to legal status by meeting specific pre- and post-enactment agricultural work requirements, a benefit important to the horse industry.

The adjustment provisions would provide an opportunity for agricultural employers, including horse farm workers, to retain an experienced workforce while they anticipate future participation in a reformed H-2A program. They key provisions are as follows:

• To qualify for temporary resident status (called “blue card” status), a worker must prove performance of agricultural employment in the U.S. for 150 work days or 863 hours during the 24-month period ending on December 31, 2005.

• Blue card visas must contain an electronic identification strip unique to the alien, contain biometric identifiers and be tamper-proof.

• To adjust to permanent residency, blue card holders must prove that they have performed at least 5 years of agricultural employment in the U.S. for at least 100 work days during the 5-year period beginning on the date of enactment or, alternatively, 3 years of agricultural employment in the U.S. for at least 150 work days per year after enactment. A work day can be no less than 5.75 hours.

• Workers failing to meet the prospective work requirement or who fail to pay taxes during the adjustment of status period are removable.

• Adjusting workers must pay fines prior to obtaining blue card and permanent resident visas.

• Workers convicted of specified felony or misdemeanor crimes cannot participate in the program.

• Workers and employers who participate in and comply with the requirements of the earned adjustment program are not subject to legal liability.

Spouses and minor children of blue card visa holders under the program may remain legally in the U.S. while the qualifying alien maintains such status.

Non-Agricultural Workers. The bill also includes provisions that would allowed undocumented aliens to apply for temporary visas based on how long they had been in the U.S. Specifically, the bill provides that:

• An undocumented alien who had been in the country less than two years would have to leave and apply for a visa from his home country, just like any new applicant.

• An undocumented alien who had been here two to four years would have to return to a port of entry, be fingerprinted, meet all the usual requirements for a temporary worker, pay a penalty of up to $2,000 and back taxes, and pass a security and criminal background check. Once these requirements were satisfied, the alien could apply for a green card with priority over future immigrants entering as temporary workers.

• An alien who had been in the U.S. for five years or more would have to pay a penalty of up to $3,250 and back taxes, pass a security and criminal background check, have worked for at least three out of the last five years in the U.S., speak English and have a knowledge of U.S. civics. Once these requirements were satisfied, the alien could receive a renewable work visa, work for an additional five years and then apply for permanent resident status and eventually U.S. citizenship.

Under scenarios two and three the alien could continue to work during the process.

New H-2C Program. The legislation also would initiate a new guest-worker program for H-2Cs. These would be year-round workers who could be admitted for three years. Although this program is primarily for non-agricultural workers, it is possible it could be used for jobs in agriculture that are not seasonal or temporary.

Extension of the H-2B Program. The bill includes a three-year extension of the current H-2B program through 2009, which is used by many horse trainers and facilities to employ non-agricultural alien workers. That program was amended last year to provide that returning foreign workers, who had been admitted previously under the H-2B program, would not be counted against the mandated cap of 65,000 annually.

Final Congressional Action
Comprehensive immigration reform legislation could not be agreed to in the waning days of the 109th Congress. The H-2B provisions in the Senate-passed bill were, however, passed as part of one of the last bills past by Congress before adjourning for the November elections. The change exempts from the 66,000 H-2B visa cap any alien who received an H-2B visa in the past three years. The provision is effective through 2009.

AHC Position
The AHC supports broad, comprehensive reform of both the H-2A and H-2B requirements of our immigration laws.

The Horse industry does not oppose stricter enforcement or tightened border security as long as the legislation includes broader reform making it possible to hire legal alien workers and hold on to current workers who are so valuable.

Immigration reform legislation has been debated through the last several Congresses. It is complicated legislation that generates a great deal of emotion. Immigration reform, and particularly what to do with the estimated 12 to 15 million illegal and undocumented workers in the U.S., may be the most contentious issue that Congress has tried to deal with in many years.