WKYT Investigates | H-2B help wanted

Pausing permits for foreign workers was supposed to help unemployment. Instead it hurt one of Kentucky’s signature industries.
Published: Aug. 27, 2020 at 5:30 PM EDT
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LEXINGTON, Ky. (WKYT) - It has been a year full of changes, forcing everyone to adjust to a new way of living life and doing business - a whole slate of new patterns, procedures and rhythms that even already seem commonplace, almost normal.

Social distancing. Curbside pickup. Virtual learning. Working from home. Wearing a mask in public.

The changes - too many to mention - have touched nearly every industry across the commonwealth and country, sometimes to their detriment. Many businesses have not survived. Many more could fail in the near future.

With a widespread shutdown and the ensuing economy hurting, layoffs and closures put millions of Americans out of work.

So in June, President Donald Trump signed an executive order suspending several programs that provide permits for foreign workers to come into the United States.

It was a step designed to help American unemployment. But WKYT Investigates found that it is actually making things harder for one of Kentucky’s signature industries and one of the state’s key economic drivers.

“We’re just kind of in survival mode right now,” said Ben Colebrook, a graded stakes-winning thoroughbred trainer. “Everyone’s kind of just hunkered down.”

Colebrook was standing outside of his barn at Keeneland’s Rice Road training center on a breezy morning in July. Rain clouds threatened. Trucks and trailers passed by in the parking lot.

The backside of Keeneland - or any race track really - is almost always a bustling place. But this year, many barns in many places are quite a bit quieter than horsemen are used to.

“We are lucky that we’re at least going,” Colebrook said. “Somewhat on a scaled-down basis, but at least we’re going.”

Fewer horses in the stable, the result of a reduction in racing. Fewer workers, the reality of the COVID economy.

Scaled down, but not out.

But also not without its difficulties, especially with much of the usual help locked out of the country.

A “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” issued by President Trump in late June, suspended several permit programs for foreign workers in response to high unemployment rates.

The president had previously suspended immigration into the U.S., but the proclamation states that “the present admission of workers within several nonimmigrant visa categories also poses a risk of displacing and disadvantaging United States workers during the current recovery.”

Among the visas suspended was the H-2B program, which allows an employer to hire non-immigrant workers as temporary (one-time occurrence, seasonal need, peak load need or intermittent need) workers as long as the employer meets certain requirements.

The H-2B visa program is for seasonal workers in what are classified as non-agricultural industries like construction, landscaping, hospitality and the equine industry.

Even in a normal year it can be hard for businesses to get the workers they need through the H-2B program.

Congress has set the cap for H-2B workers in an ordinary year at 66,000, split into a 33,000 visa cap for each half of the fiscal year (Oct. 1-March 31; April 1-Sept. 30), for all industries that rely on them across the country.

Some experts say that number is already not high enough, with demand often doubling the number of available visas and the cap sometimes being met months before the workers’ visas are even active (especially for summertime workers, when the demand for seasonal help is even higher).

Data from the U.S. Department of Homeland Security’s Citizenship and Immigration Services shows that the first half cap for 2020 visas (starting October 1, 2019) was met in November, while the second half cap (for visas starting April 1, 2020) was met in February.

“It’s a disaster. It’s disastrous,” said Elizabeth Buckley, an immigration attorney based in Lexington who also lobbies lawmakers on Capitol Hill. “We had made such a strong push to get a higher number, and Congress was supportive of that. So we were excited. And then...”

And then came the coronavirus, and the president pausing the visa program entirely.

“Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy,” President Trump’s proclamation reads. “But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers.”

The proclamation cites more than 17 million U.S. jobs lost in industries in which employers are looking to fill positions with H-2B visas.

But many people in or close to Kentucky’s thoroughbred industry do not see the action helping American unemployment; instead, they say, it just makes things harder for employers.

“I don’t see it helping at all,” Buckley told WKYT investigative reporter Garrett Wymer. “If anything, it’s worse for our economy because the businesses that want to keep their doors open, Americans are not coming to them, not taking their positions. They’re having to shut down or cut back.”

Under the H-2B program, employers always have to make their posted jobs available to Americans first before they can offer it to a foreign worker getting a visa.

But experts say, for the most part, U.S. workers do not want these positions.

Instead, open jobs have been sitting empty, and some businesses or employers have been scrambling to get work done with the people they have.

“You can’t say with million-dollar horses, ‘Oops, I don’t have a groom. No big deal,’” Buckley said. “‘Just stay there, horse. Be hungry.‘”

Many employers, Buckley says, would rather hire Americans anyway, because the costs of the H-2B program quickly pile up with the need to pay for attorneys, federal government filing fees, travel to the U.S. and consular fees. Employers also have to make sure they remain compliant with the federally-mandated program.

At the outset of the pandemic, Buckley and others in a coalition of immigration attorneys and H-2B agents across the country put together a job bank to try to fill some open positions with American workers while they figured out where things stood.

The job bank contained 89,000 postings, Buckley said. Roughly 19,000 people checked it. No one applied.

“Almost every one of my clients would do anything right now for an American worker,” Buckley said. “And they’re not showing up.”

The current system, then, incentivizes employers to hire illegal immigrants or workers, Buckley said.

On the other hand, H-2B workers are vetted and have employment authorization, driver’s licenses and car insurance while they are here. Many return each year, as is the case at Colebrook’s stable.

“They are safe, they don’t have to look over their shoulder, their employers are keeping a crew that is lawful, and they’re not protecting or hiring illegal workers,” Buckley said.

“The guys that work for me have worked for me for years,” Colebrook said. “They know how things need to be done and how to get things done.”

For all the glamour of race day or a garland of roses in the winner’s circle, a lot of hard work goes on behind the scenes and in the barns to get a horse ready for its moment. Much of that work is often done by grooms and others here in the U.S. thanks to H-2B visas.

“There’s just not a lot of people that are based in America that want to do this kind of work,” Colebrook said. “It’s kind of tedious. It’s early mornings. I don’t want to say it’s thankless work, but you’ve got to have a passion for it more than just as a job.”

At Colebrook’s barn it has been a slower than usual spring and summer season. That means he has not needed as many grooms and other workers as he typically does. But that is changing as things begin to pick back up.

After weeks of the program being suspended, earlier this month federal officials released guidance for some exemptions, opening the door for some employers to get the H-2B workers they need. At the time, less than 5,000 visas remained available, Buckley said.

Meanwhile, with high unemployment rates expected to linger, the future of the program remains uncertain. It is unclear whether the suspension of the visa program might continue as an effort to open up more jobs for Americans - even though, largely, they do not want them.

“We’ll make do,” Colebrook said, “but it’s something that needs to be fixed not only for our industry but a lot of industries.”

The decision could have far-reaching consequences for an industry that has become a major economic driver for the region and commonwealth as a whole.

The thoroughbred industry generates $115 million annually in tax revenue for the state, according to the Kentucky Thoroughbred Association, or KTA.

In all, the equine industry generates roughly $6.5 billion in economic activity each year and provides more than 60,000 jobs across the state, according to the KTA.

That means the decision could impact not just owners and trainers, but all the support industries as well, and the ripple effect of many other industries they touch, as the commonwealth tries to bounce back from the economic hit it has taken during the pandemic.

“Horses and Kentucky go hand in hand,” Colebrook said. “So a healthy industry is good for everybody.”

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