SPORTS AND ENTERTAINMENT IMMIGRATION: Buy American and Hire American? It’s Not That Simple.

NYSBA Entertainment, Arts and Sports Law Journal

Summer 2017 | Vol. 28 | No. 2


Previously, we discussed what we know, what we do not know, and how to answer the bevy of questions that were coming about from international artists, entertainers, athletes, and the like. We dove into the concerns that many folks have in light of the new administration and its ever-changing positions, specifically with respect to immigration.

In this installment of Sports and Entertainment Immigration, we take up a newly signed Executive Order titled, “Presidential Executive Order on Buy American and Hire American,”¹ and look at its potential impact, specifically as it could relate to entrepreneurs, as well as some other recent happenings in the world of sports and entertainment immigration. Fans of sports or those who represent athletes, trainers or the like will be most interested in this installment.


“These three paragraphs amount to little more than blustery language designed to be something more: They call for the issuance of reports, the coordination of brainstorming sessions, and the requirement for the heads of four departments to make reformatory suggestions to the H-1B visa program.”


Executive Order: Buy American and Hire American

Between the two aspects—buying American and hiring American—we are more concerned with the latter, due to its direct and potentially immediate impact on those entering the U.S. from outside its borders. We have seen that the Trump administration (as well as many representatives in Congress) is not fond of the H-1B visa program. It has demonstrated this by terminating premium processing² for H-1B petitions that have been submitted as of April 1, 2017,³ as well as the array of commentary about the program both before and after the election.⁴ However, there are only three paragraphs in the Executive Order that pertain to hiring American, none of which are particularly worrisome. They read as follows:

Sec. 2. Policy. It shall be the policy of the executive branch to buy American and hire American.

[…]

(b) Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).

[…]

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

These three paragraphs amount to little more than blustery language designed to be something more: They call for the issuance of reports, the coordination of brainstorming sessions, and the requirement for the heads of four departments to make reformatory suggestions to the H-1B visa program. As described by Glenn Thrush, Nick Wingfield, and Vindu Goel in the New York Times, “The order was a means to end the ‘theft of American prosperity,’ which he said had been brought on by low-wage immigrant labor. Yet the order calls for a series of relatively modest steps.”⁵


“We have a legitimate cause for concern with this based upon, once again, the historical precedent provided from our current President and Attorney General, as well as the Secretary of Homeland Security.”


However, the one line from which we can attempt to draw a conclusion is that the goal of the H-1B visa program is to allow businesses to employ “the most-skilled or highest-paid” individuals available, which the New York Times article does not hesitate to do. By quoting a venture capitalist, the CEO of GoDaddy, and the CEO of a start-up in Silicon Valley, who conclude, respectively, that the Executive Order will maintain the status quo, enhance the workforce, or harm the workforce, the article drowns the words of Senator Schumer, who stated, “This does nothing. Like all the other executive orders, it’s just words—he’s calling for new studies. It’s not going to fix the problem. It’s not going to create a single job.” On this point, I think that Senator Schumer is absolutely correct.

Nonetheless, the Executive Order is neither terrible, nor good. It does not move to terminate the H-1B visa program, but it also does not move to make any real change to the program, which needs significant reforms for it to be useful.

To the former, it is not terrible that the program is still around and that Mr. Trump is seeking input about how to modify the H-1B visa program from the heads of the divisions that have roles in administering and enforcing it. The concern, obviously, is that those individuals will make recommendations that will make the program less functional, rather than more so. We have a legitimate cause for concern with this based upon, once again, the historical precedent provided from our current President and Attorney General, as well as the Secretary of Homeland Security,⁶ and to a far lesser extent than the others, the current Secretary of Labor.⁷ It is also not terrible that those recommendations are intended to make the H-1B visa program more applicable to “the most-skilled or highest-paid petition beneficiaries,” though this must be done so with great care, sincere consideration, and a real sensitivity for the needs of U.S. employers and value added by H-1B workers.

To the latter, it is not good that the Executive Order leaves both proponents and opponents of the visa program in limbo, wondering what to make of its future viability and functionality, and how the order may apply to other, non-H-1B programs.

The International Entrepreneur Rule and the Executive Order

For example, with respect to § 2(b), there is concern that this could cause harm to the International Entrepreneur Rule. Though presently suspended due to the Administration’s freeze on any and all new or pending regulations,⁸ the International Entrepreneur Rule has been pending implementation since it was published in the Federal Register in January 2017 and scheduled for enactment this July. As § 2(b) of the Order indicates that, “the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate,” there is cause for concern that those new rules could extinguish the International Entrepreneur Rule, which would be a potential alternative for the individual who might otherwise pursue an H-1B visa.


“The one area in which the H-2B is and has been of particular value is horse racing or, simply, at the track(s).”


Yet all of this is concerned with the H-1B visa or those who might otherwise benefit from the H-1B visa program. What about other issues in the world of sports and entertainment?

Other Developments in Immigration: H-2B and Horse Racing

This brings us to the H-2B. Though we touched upon it only once way back in our first installment of Sports and Entertainment Immigration,⁹ wherein we indicated that it served no value for us (which was valid at that time and remains so for many in the sports and entertainment industries), since then, changes have been made with respect to its processing, thus making it more noticeable to an increasing number of areas or industries.

The one area in which the H-2B is and has been of particular value is horse racing or, simply, at the track(s). Taken directly from the United States Citizenship and Immigration Services (USCIS), the fundamentals of H-2B classification are that the entity seeking to employ the non-U.S. citizen demonstrates that:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work;
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a:

» Seasonal need—A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:

– Traditionally tied to a season of the year by an event or pattern; and
– Of a recurring nature.

Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:

Unpredictable;
Subject to change; or
Considered a vacation period for permanent employees;

OR

» Peakload need—A petitioner claiming a peakload need must show that it:

– Regularly employs permanent workers to perform the services or labor at the place of employment;
– Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
– The temporary additions to staff will not become part of the employer’s regular operation.¹⁰

Dissecting these provisions is not pertinent to our brief discussion here, but what is pertinent is that we must take into consideration that a majority, if not nearly all, of the workers in the stables at the tracks are immigrants and that the visa classification they benefit most from is inextricably linked to the H-1B.


“It also does not help matters that the jobs at hand often consist of cleaning the stalls and catching urine, neither of which is glamorous, and both of which are often odious and not so enticing to most.”


It is unsurprising then, that as with the H-1B, the H-2B requires a labor certification for approval and has a cap on the quantity of visas issued in any given fiscal year.¹¹ It is also similar to H-1B classification, in that those who had been granted H-2B status during a particular period of time and entered the U.S. under H-2B status thereafter were not counted against the cap; that is, until September 30, 2016, when Congress did not reauthorize the program. Of course, this action pre-dates the current administration, but taking its attitude toward immigrant labor, it is understandable that a considerable number of workers are concerned about their status within the U.S.

Primarily from South and Central America, these individuals “have become indispensable at Churchill Downs and other tracks, people in the industry say. Now, [however], fear is spreading that a Trump administration crackdown on immigration will be a calamity both for the tracks and for many of their workers.”¹² Furthermore, while immigrant workers are concerned about their stability within the U.S., employers are also greatly concerned about the ability to obtain workers for the jobs that become available.

As indicated from the Associated Press’s reporting, there is a significant staffing shortage due to a combination of fear and tightening of the program.¹³ It also does not help matters that the jobs at hand often consist of cleaning the stalls and catching urine, neither of which is glamorous, and both of which are often odious and not so enticing to most. In the words of Gary Patrick, a veteran trainer, when he tries to hire locally, “[h]e rarely gets a response, and those that show interest do not last long. ‘Two of them did show up and I got about three days out of them.’”

The real question from all of this is whether the administration will go after the H-2B program as it has vowed to go after the H-1B visa program. We do not know, and have no indication that it will, although considering that the H-2B program is rarely addressed due to its limited application and the array of problems with its processing over the years, it is possible that changes to the H-2B program could be made without many ever realizing it.

Conclusion

We are in a current state of fluctuation where it is important to read closely and stay objective. There are plenty of harmful actions that have been taken by the administration, but the Executive Order discussed above is not one; to the contrary, it is more puffery than anything else. Additionally, what happens to the H-2B program—whether it is overhauled, revised or simply terminated—remains to be seen, but it is important to stay mindful of its application, no matter how limited it may be. We can likely learn a good amount about the administration’s future impact on immigration from its efforts with respect to either H-visa program.

Endnotes

  1. https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american
  2. Premium Processing is expedited processing that is available for certain visas, and provides for a guaranteed initial response within 15 calendar days of United States Citizenship and Immigration Services’ (USCIS) receipt of the paperwork. In the event that USCIS does not provide a response within 15 calendar days, then the premium processing fee ($1,225) will be refunded to whichever entity or individual made the payment. Worth noting is that the period of 15 calendar days is inclusive of weekends and holidays.
  3. https://www.uscis.gov/archive/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions
  4. https://www.theverge.com/2016/11/11/13594172/donaldtrump-immigration-silicon-valley-innovation-h1b-visas (Trump and Trump campaign statement); https://web.archive.org/web/20161109145149/ http://www.sessions.senate.gov/public/index.cfm/news-releases?ID=CE7914BD-1F49-46A2-80E6-630EFF3449F1 (Sessions).
  5. “Trump Signs Order That Could Lead to Curbs on Foreign Workers,” NY Times, (April 18, 2017), available at https://www.nytimes.com/2017/04/18/us/politics/executive-order-hire-buyamerican-h1b-visa-trump.html?_r=0.
  6. https://www.washingtonpost.com/news/monkey-cage/wp/2017/05/03/this-is-how-trumps-deportations-differ-from-obamas/?utm_term=.0cbe7f5360e3
  7. https://www.nytimes.com/2017/04/27/us/politics/r-alexander-acosta-labor-secretary-confirmed.html
  8. http://www.cnn.com/2017/01/20/politics/reince-priebus-regulations-memo/?iid=EL; http://money.cnn.com/2017/01/23/technology/startup-visa-regulatory-freeze/.
  9. Cataliotti, Michael, The Intersection of Immigration and Entertainment Law, Volume 24, Number 2 of the Entertainment, Arts and Sports Law Journal (Summer, 2013), a publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association.
  10. https://www.uscis.gov/working-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers. Worth noting here is that I have omitted two other categories—One-time occurrence and Intermittent need—which though applicable to a large number of stables or tracks, because we are considering the three tracks that make up the Triple Crown, demonstrating the temporary nature of the position by way of Seasonal or Peakload need is often the best fit.
  11. https://www.uscis.gov/working-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers.
  12. Bruce Schreiner, Associated Press reproduced and available at http://abcnews.go.com/Sports/wireStory/immigrant-workers-fear-deportation-churchill-downs-47114339.
  13. http://abcnews.go.com/Sports/wireStory/immigrant-workersfear-deportation-churchill-downs-47114339.

Article originally written in Entertainment, Arts and Sports Law Journal and is republished here with permission from NYSBA.

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