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As I write this article, the Saratoga thoroughbred racing season is just days away from its opening day. The trainers, veterinarians, farriers and jockeys can all be seen milling around the barns and training track. Downtown, the community is buzzing with visitors from all over the world, and the restaurants and other hospitality-based businesses are filled to capacity.
Meanwhile, in Washington, D.C., our president is planning large-scale enforcement actions and raids, apparently in ten major cities across the country. Media outlets are reporting that the raids will take place in Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco.
Although not a major city (size-wise anyway), the President’s proposed actions have people and businesses worried in my own hometown of Saratoga Springs. Unfortunately, it is now common to see U.S. Immigration and Customs Enforcement (“ICE”) conducting enforcement actions in our community. It started in earnest in the Spring of 2017, and it continues today. It is having a real impact on service-industry businesses. This time of year, it also impacts the race track’s back stretch workers.
The back stretch workers are absolutely essential to the horse racing industry. They do all of the little things to make our track experience enjoyable (and candidly they perform jobs that most U.S. workers don’t want to do.). A great many of these workers are foreign workers. And although most of these workers are here lawfully, certainly some are not. Likewise, in our restaurants and hotels, many of the back-of-the-house workers that you rarely if ever see are also foreign workers. And yes, I am sure some of them are not here lawfully.
President Trump’s enforcement actions and raids are happening amid a very tight labor market nationally. Saratoga Springs is fortunate to have very low unemployment. But with that comes issues associated with hiring and retaining enough workers to fill year-round labor needs, including the bump that employers need during track season.
Some reports suggest that President Trump’s immigration raids will focus on migrant family units with final orders of removal. Other reports have indicated that targeted individuals will be minors who came into the U.S. without their parents and have since turned 18, individuals who were ordered removed in absentia, and individuals who missed a court hearing and did not thereafter respond to letters mailed to their homes by the Department of Justice. The common theme seems to be the mass round-ups of vulnerable families from Central America who have fled to the United States to seek asylum and have since been ordered removed.
In this era of enforcement actions and raids, it is critically important that we remember that every person living in the United States, including those individuals who are undocumented immigrants or otherwise here unlawfully, have certain rights under our Constitution, whether they be in public, in their workplace, or in their home.
If you know someone who is undocumented or otherwise present in the United States unlawfully, and an ICE officer stops them on the street or in a public place, they have rights. First, they have the right to remain silent. They do not need to speak to the immigration officers or answer any of their questions. Second, they may refuse a search. If they are stopped for questioning but are not arrested, they do not need to consent to a search of themselves or their belongings. (An officer may “pat down” an individual’s clothes, however, if he or she suspects an individual has a weapon.) Finally, every individual has the right to speak to a lawyer. If an individual is detained or taken into custody, then he or she has the right to immediately contact a lawyer.
If an individual is in their home, and an ICE officer knocks on their door, in addition to all of the above rights, they do not have to open the door or let the officers into their home unless they have a valid search warrant signed by a judge. Finally, if an ICE officer comes to someone’s work place, they again must have a valid search warrant or the consent of the employer to enter non-public area.
The President’s enforcement plans are a monumental waste of time and resources and, as always, grounded in politics. We should all remain focused on real solutions to the immigration problem that has plagued our country for longer than I care to remember. The members of our community who are being arrested, detained and deported are mothers, fathers and children. They’re our neighbors. They’re the people who make your summer in Saratoga experience all that you want it to be for you and your families. Let’s stop playing games and starting working on real solutions. It’s about time.
I am very fortunate to live in Saratoga Springs, New York. Last Friday was opening day at the Saratoga Race Course, and the weather cooperated. As a result, the crowds were out to watch racing at what I would argue is the country’s finest racing venue.
Friday morning, at about 5:30 AM, the line outside the track was all the way down Union Avenue, with thousands of patrons trying to be the first ones through the gates. About a month or so ago, I saw a similar line, but this line was filled with hundreds of people hoping to get summer jobs at the track. Those jobs are for what I will call “front of the house” positions, like gate attendants who take your money, people who sell programs, and food and beverage providers. Of course there are many more.
Those who weren’t in that line, however, were the back stretch workers who do all of the little things to make our track experience enjoyable. These are the trainers, exercise riders, jockeys, grooms, farriers, veterinarians, muckers, jockey agents, and all the other positions associated with horse racing.
While many of these workers are U.S. citizens, quite a lot of them are foreign nationals from Central America. Many of them enter the United States annually on an H-2B nonimmigrant visa. Quite frankly, these are positions that U.S. workers do not want to fill, and unfortunately for those in the horse racing industry, they are stuck trying to navigate the incredibly cumbersome (and expensive) process of obtaining an H-1B nonimmigrant visa for these workers on an annual basis… and in 2012, it got a lot worse.
The H-2B nonimmigrant worker classification allows foreign nationals who are citizens of certain named countries (with some limited exceptions) to accept temporary non-agricultural employment in the United States, after the employer has obtained a temporary labor certification from the U.S. Department of Labor by establishing that there were no willing, able, and qualified U.S. workers available during the period of recruitment.
The H-2B classification allows foreign nationals to provide “temporary or seasonal” services or labor, provided the employment does not displace U.S. workers “capable of performing such services or labor” and as long as the H-2B employment will not adversely affect the wages and working conditions of U.S. workers.
The temporary job may be professional, skilled, or unskilled, and there must be a seasonal, peakload, intermittent, or one-time need for the temporary services or labor. Therein lies part of the problem with using the H-2B nonimmigrant visa for backstretch workers. Employers need to clearly show that their need is short-term; that is, regardless of whether or not the position by itself can be explained as not being a permanent one, the employer has to have only a temporary need for the worker (i.e., a seasonal, peakload, intermittent, or one-time need for the temporary services or labor).
This was not a particularly big issue until 2012, when the government changed its interpretation of the law, effectively making a program that is vital to the horse racing industry, and to our enjoyment of it 40 days a year in Saratoga Springs, that much more difficult. The government used to say that workers met the standards of “seasonal” and “temporary” because the same owner or trainer needed them in different locations at distinct times of the year. In 2012, however, the government’s interpretation changed, and its position now is that these backstretch workers are essentially year-round employees. Now, owners and trainers must file separate visa applications for each worker at each meet. Perhaps the larger stables can afford this, but the smaller ones cannot.
This is yet another example where immigration reform could be useful. Unfortunately, things in Washington are not looking promising. When our government cannot even resolve the current humanitarian crisis affecting all of the children arriving at our borders, what chance do the owners, trainers and backstretch workers have?