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DHS Authorizes Additional 15,000 H-2B VIsas for FY2018

Considerations for filing an H-2B petition per the new regulation.

 

Following several weeks of tense discussions between Congress and the Trump administration, the Department of Homeland Security published a final rule May 31 in the Federal Register authorizing issuance of 15,000 additional H-2B visas for the remainder of fiscal year 2018.

As reported this spring, Congress authorized the DHS to raise its cap on H-2B temporary worker visas from the current cap of 66,000 to 129,500 visas for FY2018 within the context of the omnibus appropriations law passed in late March. DHS states that by issuing 15,000 extra H-2B visas—significantly below the additional 63,500 authorized by the FY2018 omnibus—the agency will prioritize employers who demonstrate that they would suffer “irreparable harm” to their business unless they are able to hire additional seasonal workers during the summer and fall 2018 seasons. DHS further states that it seeks to avoid possible abuse of the H-2B program by limiting the pool of extra visas to 15,000.

According to the rule, DHS punted the broader temporary worker shortage issue to Congress, urging lawmakers to reform the Immigration and Nationality Act, which establishes the H-2B visa program. During the course of the extended back-and-forth discussions between the legislative and executive branches this spring, DHS claims that only congressional action can provide long-term certainty with respect to the issuance of more guest worker visas. According to federal regulators, addressing worker shortages through the annual appropriations process fails to create certainty, undercutting the ability of the business community to plan long-term.

Since moving forward with a limited cap increase, DHS’s United States Citizenship and Immigration Service has outlined some practical considerations for filing an H-2B petition per the new regulation:

  • An employer “must meet all existing H-2B eligibility requirements,” which includes receipt of “an approved Temporary Labor Certification from the Department of Labor that is valid for the entire employment period stated on the petition.” DHS reminds employers that “the employment start date on the petition must match the employment start date on the TLC, even if that date has passed.”
  • Employers must also “conduct a fresh round of recruitment for U.S. workers if the TLC contains a start date of work before April 15, 2018.”
  • A business must “submit an attestation on Form ETA 9142-B-CAA-2 in which the petitioner affirms, under penalty of perjury, its business will likely suffer irreparable harm if it cannot hire all the requested H-2B workers before the end of the fiscal year.” The agency provides Form ETA 9142-B-CAA-2 Instructions to properly complete the attestation.
  • DHS further states that it “will not accept” an “expired ETA 9142-B-CAA from fiscal year 2017.”  The agency will reject any “petition that does not include the new ETA 9142-B-CAA-2 attestation form for fiscal year 2018.”

Recognizing the time constraints associated with the application process, DHS states that it will “adjudicate” applications within 15 calendar days for employers opting for “premium processing,” and 30 days for standard applications. To learn more about how to fast-track an H-2B visa application, please go to: https://www.uscis.gov/forms/how-do-i-use-premium-processing-service.

The unprecedented demand for guest worker visas this year will create a narrow time frame in which to submit an application.

As details unfold related to practical considerations associated with the new rule, American Horse Council will continue to inform members about developments and helpful notes for members who are considering moving forward with summer applications.

As a reminder, AHC will be conducting a panel discussion featuring congressional and industry experts June 12 in Washington as part of the association’s annual meeting. To view a copy of the final rule, go to: https://www.gpo.gov/fdsys/pkg/FR-2018-05-31/pdf/2018-11732.pdf.

Farm Labor Reform: A Never-Ending Chore

By T. D. Thornton

http://www.thoroughbreddailynews.com/farm-labor-reform-a-never-ending-chore/#.WVZPDfNkCE4.email

This is the first in a two-part installment about labor problems facing Thoroughbred farm owners.

When America’s food growers want to hammer home the point that United States agriculture is facing an ever-worsening labor crisis because there aren’t enough workers to tend our nation’s fields, they illustrate the plight by providing photographs of row upon row of unpicked crops dying in the dirt.

Dairy farmers, dealing with the same trouble, have begun repeating the dire threat that if America doesn’t figure out a way to import more workers, the country will soon have to resort to the unthinkable practice of importing milk instead.

And in the stabling areas of Thoroughbred racetracks all across the nation, it’s become an all-too-familiar tale how trainers can’t find and retain capable, reliable hands-on horse workers, let alone entry-level laborers willing to shovel manure and scrub water buckets.

There is anecdotal evidence that willing foreign workers are avoiding Thoroughbred-related employment because of the palpable vibe that U.S. Immigration and Customs Enforcement (ICE) officials could swoop in for a raid at any moment–an uneasy feeling validated by the fact that ICE is reportedly arresting 400 undocumented foreigners daily nationwide.

Such a crackdown (16 arrests) just happened in Saratoga Springs, New York, in early June, a little more than a month before the country’s highest-profile Thoroughbred race meet is scheduled to begin in that city. According to the Washington Post, the nationwide haul of 41,318 immigrants taken into custody over the first 100 days of President Donald Trump’s administration represents a 37.6% increase over the same period last year.

But while racetrack-related labor woes have been spotlighted in recent months (read TDN’s most recent take on the subject here), there are parallel problems with different consequences playing out on the nation’s Thoroughbred farms.

Over the past several weeks, as the breeding and foaling seasons morphed into the yearling prep season, TDN surveyed a selection of owners and managers of different-sized farms around the country and spoke with elected and appointed officials to find out what long- and short-term help they can offer constituents. This article will attempt to give a snapshot of the varying degrees of problems articulated by owners; Part 2 in Friday’s edition will examine potential solutions.

“Look, this is the worst-kept secret, both on the farm on the backstretch,” said Chauncey Morris, executive director of The Kentucky Thoroughbred Association/Kentucky Thoroughbred Owners and Breeders organization. “The labor issue is challenging. We needed immigration reform in this country probably five years ago, but we don’t have that. So is there a labor shortage currently? Yes, there is, because the economy has increased in a lot of places, including here in central Kentucky where the unemployment rate is very, very low.”

Morris–like everybody interviewed for this story–was adamant that the day-to-day, basic needs of Thoroughbreds are not what gets compromised when there is a shortage of farm labor. “As far as reducing the level of care on horses where it becomes a welfare problem, that’s not an issue,” he said.

What generally happens is that maintenance and upkeep suffers, and non-horse components that are vital to running a successful farming operation slide to the bottom of the to-do list, fueling a mentality of workplace triage.

Fred and Nancy Mitchell’s Clarkland Farm in Lexington compensates for the labor shortage in the heart of the Bluegrass by taking an all-hands-on-deck family approach. The Mitchells have a more vested interest than most owners in the future of their broodmare farm, because the property has been in their family since the 1700s.

A staff of seven cares for the 70 to 75 horses that reside on the Clarkland property. Fred Mitchell said that number includes the Mitchells themselves, (“but we’re getting up there in years”), a “workaholic daughter,” a triathlete son-in-law who handles all the mowing when he’s not in training for or competing in Ironman races, and three Mexican guest workers (two who live on the property, with the other housed nearby).

“It’s not easy to find good workers anymore,” Mitchell said. “The best hands that we can get now are the Mexicans. And if you can get a good one, you’ve really got a good one. But anyone local? You might as well just forget about it. They don’t want to work. They don’t have to work. The government is taking too good care of them.”

The foreign guest workers have either been employed at Clarkland a long time, Mitchell said, or different workers rotate to Lexington from the same small Mexican community as the seasons change. If one of them has to remain at home for whatever reason, Mitchell added, they are quick to send another family member or friend. Mitchell said he does not handle the Clarkland bookkeeping, but he believes they are all paid above $10 hourly.

McMahon of Saratoga Thoroughbreds, located five minutes away from the Saratoga Race Course backstretch, is another husband-and-wife founded breeding farm. Joe McMahon knows the employment totem pole from the bottom up: He began working as a groom, hotwalker, and exercise rider at age 16; met his eventual wife, Anne, on the backside several years later when she was a Skidmore College student, and the two started with 100 acres (the property has since quadrupled) and a couple of broodmares in 1971.

When TDN cold-called to ask about the employment snapshot in his region last week, Joe McMahon immediately cited figures that showed the farm was down to only 15 employees at a time of year when they usually carry 20 to care for their 260 broodmares, foals, and yearlings. Yet the farm’s payroll has spiked upward in 2017 compared to the last two years.

“We’re paying more, and that’s a conscious thing we’re doing to keep our better people,” McMahon said. “Pretty much anybody you talk to, that’s the first thing they say is they’ve got labor problems. It’s hard to get good people who are responsible and they show up. We have to pay up, is what I think. And it’s hard to do when you get a shrinking participation level from [horse] owners.

“But to pay up, you’ve got to raise people’s board,” McMahon continued. “Who wants to raise board when [the industry] is in kind of a contraction mode? So we’re trying to do other things. We want to keep everybody that’s already in the business in business. We don’t want to drive anybody away. We want to do other things better. In fact, we want to run the whole place better, more efficiently. That’s our answer to it, because we feel we have to pay up. So we’re willing to do that if we can get the money out of the business [in other ways]. It’s just working smarter, I guess. But it sure isn’t easy.”

McMahon cited the overall Thoroughbred marketplace as a factor in his business decisions.

“Yearling sales have been pretty tough the last couple of years, even though they’ve been fairly good here in New York,” McMahon said. “That’s probably part of the problem. There aren’t as many people buying inexpensive horses as there used to be. You look at the 2-year-old sales, the stratification is incredible. I mean there’s nothing in the middle or the bottom, although this year was maybe slightly better across the board. So that affects it.”

McMahon said that for entry-level workers, he pays on par with what convenience and fast-food stores pay around Saratoga, which is about $15 hourly.

“We have one girl at $10 an hour, but she gets housing with it,” McMahon said. “So she gets a home, and she gets a contribution towards her [health insurance], 50%. It’s hard to get good people, plain and simple. We’re fortunate that we’ve had some people who have been with us for a long time, and they’re kind of filling the gaps. But for just labor people? It’s real tough.”

Asked if the shortage is constraining his operation’s growth, McMahon said, “We don’t want to grow any more. We’re as big as we want to be. But I guess this spring we’re just noticing that we’re farther behind on those maintenance kinds of jobs–painting, weed whacking, and mowing and fixing fences. We seem to have a harder time getting those sorts of things done. And that’s because everybody who works here has horse skills, and we can’t take them away from the horse part of it to do stuff that we used to have abundant people to do.”

In Ocala, Florida, Roger Brand, the vice president and general manager of the Double Diamond Farm stallion facility and training farm, said that while his operation is not in as desperate an employment position as farms in other geographic areas, he sees a different delineation between the availability of skilled horse help versus general laborers than McMahon does in New York.

“Getting people that have horse experience, I think there’s a shortage of that,” Brand said. “I don’t know that it’s a shortage of people that come in to apply for jobs, but [there is a shortage of] people who are qualified to work with horses. I think most of those people who are familiar with the business are gravitating towards the track, not farms. It used to be easier to get people with horse experience. But from the labor side of mowing and things like that, I don’t think there’s a shortage.”

Brand’s opinion is reflected by his employees-to-horses ratio, which is lower than other interviewees for this story: He said he has between 42 and 46 workers on the payroll for a farm that usually houses 100 horses, depending on the season.

“I think the horse business itself–you know, you’re either in or you’re out of the world of horses,” Brand said. “I think the amount of people in the horse business is not what it used to be. If you grew up in it and your family was in it, you probably are still involved. But I don’t think other people are gravitating to it.”

Brand said that he pays hands-on horse workers $12-15 hourly and riders get $12-15 per mount. Yet he believes in paying unskilled laborers roughly the same amount, “because, believe it or not, you get what you pay for.”

That wage breakdown contrasts with what Pete and Evelyn Parrella of Legacy Ranch in Clements, California, pay their workers. But it’s important to consider that north-central California horse farms are located in an ultra-competitive agricultural jobs market.

“Right now it’s difficult,” Pete Parrella said. “Up here, at this time of year you’ve got cherry-picking and grapes, and those operations pay piece work. It’s sometimes difficult for us to keep employees because they can make more money on piece work than they can hourly, so that’s been a challenge for us.”

Legacy Ranch offers breaking, training, lay-ups, sales prep, breeding, and foaling. Parrella said a staff of 35 tends to the

400 horses, and that he pays $11-15 hourly to lure general laborers, but will go above $20 hourly to retain skilled horse workers.

“To keep people we’re having to pay well over the minimum wage for physical labor for stall cleaners and manure pickup and stuff like that. It’s a problem for horse farms. I don’t know how you can hold [boarding] rates. Rates are going to have to go up, and some of the clients are going to have to pay new rates for us to keep employees,” Parrella said.

“Finding qualified people in the horse industry is a challenge. But there are people out there, and if you’re fortunate enough to find them, then you have to pay the price. If you’re looking for quality over quantity, your clientele has to appreciate that, and clients have to make a choice where they want to go,” Parrella said. “We’re really not looking for bodies. We’re looking for people in the industry that have a concept of what a good horseman is. That’s what we look for.”

The farm operators interviewed from Kentucky, Florida, California, and New York represent the top four Thoroughbred producers by state. But drift farther down that list, and it seems evident that the more removed you are from the top of the breeding hierarchy, the more difficult it gets to find qualified horse farm workers.

Barbara and Ron Rickline founded Xanthus Farm in Gettysburg, Pennsylvania, in 1983. The full-service breeding farm, which bills itself on its website as “one of Pennsylvania’s leading commercial stallion establishments,” usually houses 150 horses, and about half of them are new foals each year.

Yet Barabara Rickline said she only is able to retain four or five full-time employees and a handful of rotating part-timers. Her best staffers are older locals in their 50s who are life-long horse handlers, and one intensely equine-enthused 15-year-old girl who is a tireless worker. The average starting wage, she said, is $8-9 hourly.

“We start them out kind of cheap because most of them don’t stay anyway,” Rickline said. “I’ve already tried paying people more money, and it just doesn’t help. I know that sounds kind of cheap, but that’s the reality of it.

“This area is big for apple farming. We used to always have available help that would do both kinds of work, in the orchards and then they’d pick up work on the horse farms. But now that the immigration thing got kind of tough, everybody has disappeared. I used to always rely on a couple of Mexicans who did good work and liked to be with horses. But they all went back to Mexico. They’re too afraid they’re going to get picked up.”

Rickline continued: “I hate to say it, but [American] kids don’t want to do this stuff. They don’t do physical labor. You can’t even get people with horse experience. You have to teach them everything. The basic horse stuff gets done on my farm. But the extra seasonal upkeep things don’t get done as much as you’d like. It’s making me want to cut my business back. I’m even trying to reduce my number of horses because you can’t find good help.

“And when I say ‘good help,’ I mean people that just show up,” Rickline emphasized. “It doesn’t mean that their work is good. And that’s bad, when their best quality is they just show up.”

@thorntontd

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