Feds on Brink of Helping–or Hurting–Industry Employers

The inclusion–or not–of about 20 words in a massive stopgap federal funding bill this week could have far-reaching consequences for United States Thoroughbred industry employers who rely on foreign workers for hands-on, day-to-day horse care at racetracks, training centers, and breeding farms.

At issue is the reinstatement of the H-2B visa “returning worker” exemption that lawmakers recently allowed to lapse into inactivity.

The need for the H-2B exemption is by no means limited to the Thoroughbred industry. It affects numerous other industries in which the work is hard, the hours are long, and the pay is traditionally low.

Without the exemption, federal law caps at 66,000 the total number of foreign nationals who can be issued an H-2B visa during a fiscal year for the purpose of coming into the country to work for up to 10 months provided they then return to their home countries.

However, under the proposed reactivation of the H-2B exemption that is backed by both the National Thoroughbred Racing Association (NTRA) and the National Horsemen's Benevolent and Protective Association (NHBPA), if employers are able to demonstrate that a worker has qualified for the H-2B program in any of the three previous years, that worker does not count against the 66,000 federal cap.

So put another way, if the exemption goes back into effect, it will make it much easier for trainers and farm managers to hire or re-hire workers from other countries for jobs that might otherwise go unfilled by American workers.

“The detrimental cause that could come into play should the H-2B exemption not be included could be very problematic for our industry as a whole,” said NHBPA chief executive officer Eric Hamelback. “I think we all know that our labor force is very dependent on migrant workers, and having these individuals continue to be here obviously is something that we as an industry need to push for and continue to ring the bell for in Washington to let people know how important this is to us.”

NTRA and NHBPA officials are jointly underscoring the urgency for horse industry employers to let elected officials know how important the H-2B exemption is to them. That's because lawmakers are attempting to avoid a government shutdown prior to Dec. 9 by passing stopgap spending legislation to fund numerous federal agencies and programs before adjourning the 114th Congress, and the language that reinstates the H-2B exemption is in danger of not making it into that bill.

NTRA president Alex Waldrop said that without an exception to the H-2B cap, the Thoroughbred industry will face an onslaught of competition from other industries for the very limited number (66,000) of available visas that are available in fiscal year 2017.

“Keep in mind, these are not immigrants. These are not people who are trying to get a green card. These are not people who are asking to come to the U.S. permanently,” Waldrop explained. “These are people who are coming as temporary workers. They have to return [to their home country] at least two months out of the year, and [their jobs] have to be seasonal in nature. These are simply foreign workers who are allowed to come and work the jobs that Americans don't want and that employers can't fill.”

Waldrop said the H-2B exemption had been in effect through the 2016 fiscal year, which ran through Sept. 30. But when federal lawmakers failed to pass a budget for the 2017 fiscal year, they instead relied on a “continuing resolution” (CR) to fund the federal government. That CR (not a federal statute) only ran through Dec. 9, and didn't include the H-2B exemption. With that deadline looming this week, lawmakers are under the gun to pass another CR to keep the government afloat through at least March 31, and Waldrop (like the leaders of many other organizations representing myriad industries) wants the H-2B language put back in.

Not having the H-2B exemption in place for the past eight weeks hasn't brought about an adverse impact on the Thoroughbred industry because it's a slow time in the sport for hiring workers, Waldrop said. But life could get a lot more difficult for trainers and farm managers come Jan. 1 when hiring traditionally picks up if that language isn't included in this week's CR.

“If [a horse industry employer] can't take advantage of the exemption between [Jan. 1] and Mar. 31, you're effectively out of luck,” Waldrop said, because the 66,000 quota is quickly filled. “[The H-2B extension] needs to be done now, otherwise we won't have the workers we need.”

Neither Waldrop nor Hamelback could cite a ballpark number of H-2B workers that have traditionally been covered by the exemption.

“I don't have that number,” Waldrop said. “All I know is that trainers say that a large number of their employees that they hire are eligible for the H-2B program. What we don't know is how many are here under the program, and how many are here without documentation. And frankly, that's just not something that people talk a lot about.”

Waldrop continued: “The best case scenario is that the House appropriations committee, which is meeting this week, will decide to put the exemption language back in the CR, the language that has been in place the entire 2016 fiscal year…and the industry could continue to rely on that exemption when recruiting foreign workers. It's about 20 words that they need to include. There's no mystery about what that language is, it's just whether they will do it or not.

“The worst case is that they will not put it in, and decide that they will not ever go back to an exemption program for these returning workers. It's conceivable that we could lose this battle [but] maybe come back in March and convince them to put it into the next CR that will fund until through the end of September next year, but that's unlikely. It's one of those situations where we need to win now, or we're probably going to be out of luck for the entire fiscal year.”

When asked if he thought that not having the H-2B exemption would trigger a federal crackdown (ie backstretch raids targeting illegal employees), Waldrop said, “I don't think it would be much of a change in terms of enforcement, but what it will do is it will deplete or dry up the H-2B program for trainers who want to be in compliance with the law, and they're going to be forced into the very bad decision to either hire undocumented workers or not have the staff to handle the horses.”

To assist Thoroughbred industry employers who want to express support for the H-2B exemption, the NHBPA is circulating a flier with instructions on contacting federal lawmakers. It reads, in part:

“Call Senate Majority Leader Mitch McConnell at (202) 224-2541 and House Appropriations Committee chair Rep. Hal Rogers at (202) 225-4601….Once connected to the office, ask to speak to the person who handles H-2B issues. Tell them Congress must understand that a failure to reinstate the H-2B returning worker exemption before March of next year will hurt the horse-racing industry and will result in the loss of jobs.

“If you can't get through, leave a message on the lines of 'Failure to reinstate the H-2B returning worker exemption before next March will cost the horse industry jobs. We need the exemption reinstated now.' Leave your name, your job title and a contact number.

“If you have a Twitter account, please tweet #saveH2B to @SenateMajLdr and @RepHalRogers with a message on the lines of 'Include returning worker exemption to H-2B program in CR–jobs are at stake!' Another to tag is @HouseAppropsGOP. Don't assume someone else will do this for you. Please share this message.”

@thorntontd