Article on Equestrian Immigration
IMMIGRATION “PAPERS” FOR WORKING IN THE UNITED STATES
By Susan E. Hill, Partner at Hill & Piibe, Immigration Attorneys
Originally published on ProEquest.com, 2014
The equestrian industry often uses workers who are noncitizens of the U.S., and must navigate the sometimes complicated U.S. immigration laws. Aside from reviewing the available documentation (commonly referred to as “papers”), this article addresses salient points that will help both employers and workers understand how the laws may apply, and to spot potential trouble issues.
- AMERICAN JOBS ARE PROTECTED BY IMMIGRATION LAWS
The U.S. Citizenship and Immigration Services agency (“USCIS”), formerly known as “INS,” works with the Department of Labor to preserve jobs for Americans, especially in today’s sluggish economy. This has resulted in a system of labor categories designed to target only those areas where American workers historically have not been available to fill the jobs. Thus, employers/workers must select the appropriate category and demonstrate both the job and the worker meet the category’s requirements.
- WHO MUST OBTAIN IMMIGRATION AUTHORIZATION TO WORK?
Both U.S. citizens and those holding green cards may work at any job they please, and do not need authorization to work. All other foreign workers will require proper authorization; once obtained, the foreign worker will have either a temporary “nonimmigrant” authorization to work, or s/he will become a permanent resident.
- “WORKING” COVERS ALMOST EVERYTHING
Immigration authorization is required for “work,” meaning any task that is performed in the U.S. that normally would be performed by an American worker, and which results in some kind of award, whether the “award” is: money, salary, wages, profits, exchange of services (horse boarding/training/riding lessons), food/lodging, clothing, or anything to compensate the worker for his/her effort and time. Therefore, “work” includes grooming/braiding at shows, managing and operating a business, working students, and farmsitting/child care. A common exception is when foreign competitors at horse shows bring their own grooms/riders/nannies with them—these workers are not taking a job that an American worker normally would perform, because the job exists outside the U.S. and the employees are merely accompanying their employers during travel.
- THERE IS NO STAND-ALONE “WORK PERMIT”
A common misconception is that a foreign worker need only apply for a general permit or “papers” to work in the U.S. While generalized “work permits” do exist, they are not available as a stand-alone document; they are issued only in conjunction with filing an application for some kind of major immigration benefit, such as the final stage of applying for a green card. Moreover, the generalized “work permit” is only valid inside the U.S. and cannot be used at the U.S. border to obtain admission into the country. This leaves the majority of foreign workers requiring a document with a two-fold purpose: (1) gain entry into the U.S. at the border; and (2) authorization to work inside the U.S. Such documentation takes the form of a temporary (“nonimmigrant”) visa, or a green card (“permanent residency”). Both are subject to the aforementioned category system.
- THE FOREIGN WORKER MUST HAVE A CLEAN IMMIGRATION RECORD AND NO SIGNIFICANT CRIMINAL RECORD
The technicalities surrounding this aspect of the law are almost dizzying, but here are some basic concepts that often must be addressed in a case:
- ANY PRIOR ENTRIES TO THE U.S. MUST HAVE BEEN LAWFUL, AND NO VIOLATIONS THEREAFTER
The foreign worker’s prior immigration record will be examined, and it cannot include any incidents of entering the U.S. without permission (sneaking across the border or presenting false documents), violating the terms of a visa (such as working at a different job without immigration permission), or simply being present inside the U.S. without permission, such as “overstaying a visa.”
- “OVERSTAYING A VISA” AND THE I-94 PERIOD OF ADMISSION
Contrary to popular belief, the expiration date printed on the actual visa does not control how long a person may remain inside the U.S. once the visa is used to gain admission to the country. The visa is similar to a ticket or season pass, and only indicates the purpose for entering the country; it must be used before its expiration date. But once inside the U.S., the “I-94 Period of Admission” date controls how long a person may remain. This date is stamped into the noncitizen’s passport when admitted to the U.S. at the border or port of entry (i.e., international airport), and is recorded electronically; printouts of the I-94 are available on the U.S. Customs and Border Patrol website. Canadians are not given visas, but will still be given a passport stamp in most cases.
- ORDERS OF REMOVAL/DEPORTATION, VOLUNTARY DEPARTURE OR IMMIGRATION APPREHENSIONS
These incidents involving immigration officials (such as Immigration Court or U.S. Immigration and Customs Enforcement (USICE))could create problems for the foreign worker and should be analyzed by an experienced attorney.
- WAIVERS ARE AVAILABLE IN LIMITED CASES
If any of the above issues apply, a waiver may be available under limited circumstances, but it will delay processing of the case and it is decided on a case-by-case discretionary basis with no certainty of outcome.
- COMMON CATEGORIES OF JOBS FOR OBTAINING IMMIGRATION CLASSIFICATION
Equestrian industry occupations may be broken down into (1) Horse Trainers/Coaches; (2) Competition Riders; (3) Exercise Riders/Assistant Trainers; (4) Regular Grooms; (5) Head Grooms; and (6) Entrepreneurs/Business Owners/Investors. These occupations are addressed in each type of immigration classification below. Every employment situation varies, and there may be other options aside from these common classifications.
- TEMPORARY “NONIMMIGRANT” CLASSIFICATION
- H-2B SEASONAL WORKER – All Occupations. Employer must advertise the job opening and interview qualified candidates to demonstrate a shortage of American workers. Limited to seasonal jobs, such as on a horse show competition circuit, and generally allows the worker to be in the U.S. for 9 months maximum per year. Cap of 33,000 granted every 6 months.
- P-1 PROFESSIONAL RIDER – Competition Riders only, must have qualifying show record in USEF, EC, or other major shows open to international competition. Up to 5 years authorization, capped at 10 years total.
- P-1S SUPPORT PERSONNEL (MUST ASSIST A P-1 RIDER) – All Occupations, but must have prior experience assisting the P-1 Rider. *Note: Grooms used to be able to obtain P-1 authorization without an accompanying rider, but this policy has been suspended. Same authorization time as P-1 Rider.
- O-1 EXTRAORDINARY ABILITY – All occupations except Regular Grooms. USCIS is very stringent with these, and the applicant should have extensive documentation (newspaper articles, awards, etc.) demonstrating outstanding national or international acclaim for his/her achievements. Up to 3 years at a time, unlimited.
- E-1 “TRADER” OR E-2 “INVESTOR” AND ESSENTIAL EMPLOYEES– All occupations. Limited to certain countries with U.S. trade treaties. Commonly used for entrepreneurs investing in a U.S. business, or conducting substantial trade (such as horse sales) with the U.S. Also for “essential” employees with critical/specialized knowledge or skills. Up to 2 years at a time, unlimited.
- GREEN CARD/PERMANENT RESIDENCY: These categories are similar to the temporary “nonimmigrant” categories above and are available for all occupations, although investors follow a different procedure. Most categories require an employer, except for investors and those with extensive, documented achievements/awards, who may proceed as self-employed. For those requiring an employer, the employer must place an ad and attempt to recruit American workers, to demonstrate a shortage. Some categories may have a waiting list; at the time of this writing, the longest waiting list is 3 years and the foreign worker will need to obtain temporary “nonimmigrant” work authorization while waiting.
- PROCESSING TIMES VARY
Any of the above have different processing times and procedures, plus unexpected government delays often occur. Expedited government processing is available for most cases at a premium fee of $1,440. Some cases may require several weeks to amass, therefore it is recommended to plan ahead and start early.
This article is very generalized and it is recommended that the employer/foreign worker consult an attorney if there are questions about the above, or to plan a strategy.