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Horse racing fans held their breath this week over potential triumph and disaster – I’ll Have Another was poised to take the Belmont Stakes on Saturday to become the first Triple Crown champion since 1978, but the local chapter of the International Brotherhood of Electrical Workers , the union that represents 280 members at Belmont Park racetrack, including the starters who set the horses running when the gates open, was poised to shut down the race by striking over a contract battle with the New York Racing Association: no starters, no race.  But even though the racing industry’s hopes for a Triple Crown champion were crushed on Friday when I’ll Have Another withdrew from the Belmont Stakes with early stage tendinitis, the strike was averted and the race will go on, albeit without its brightest star.

After the crowds have placed their bets, cheered, collected their winnings, and left Belmont Park, the racetrack and those whose horses train and race there have a longer-term labor problem than negotiating with union-backed starters: no horses, no race.  Horse training – and the specific tasks of thoroughbred groomers, exercise riders, and hotwalkers – is tough, dirty, and often dangerous work, with low pay, early morning hours, and seven-day work weeks during the racing season.  Extensive knowledge of horses is essential.  New Yorkers rarely respond to trainers’ advertisements for such challenging seasonal jobs, and the positions are most often filled by Mexican and South Americans steeped in horse culture.  These temporary workers form the backbone of the racing industry, and their temporary worker petitions have been approved routinely for years.

However, last fall, several horse trainers based at Belmont Park – represented by Benach Collopy LLP partners Thomas Ragland and Jennifer Cook, at their former firm Duane Morris LLP – filed suit in federal district court seeking to overturn denials of H-2B (temporary non-agricultural worker) visas for their thoroughbred stablehands.  U.S. Citizenship and Immigration Services denied the visas, which previously had been routinely granted, on the ground that the stable work was not truly “seasonal” since the labor shifts to horse trainers’ stables in Florida during the non-racing winter.  USCIS and the trainers – whose suit was supported by the New York Thoroughbred Horsemen’s Association – ultimately reached a settlement, and the stablehands were permitted to continue working with the horses that run at Belmont Park this racing season, to the delight of New Yorkers and racing fans around the country.

But H-2B visas continue to pose challenges.  On April 26, 2012, a federal district court in Florida enjoined the Department of Labor from enforcing new rules revising the H-2B program, which would have imposed various bureaucratic filing and paperwork requirements on employers and decreased the number of months an employer may employ an H-2B worker – a negative factor for long-season (but clearly “seasonal”) work such as horse training.  These rules also would have required employers to pay round-trip airfare and subsistence costs of H-2B employees – a distinct benefit for stablehands, but not if trainers could no longer afford to hire stablehands and groomers from South America.

Until regulations governing nonimmigrant workers are revised to recognize seasonal industries dependent on specific skills found most often in workers outside the U.S., employers in those industries must continue to challenge those regulations and their interpretations in federal court.  As racing fans gear up to watch the Belmont Stakes this afternoon, let the horses themselves serve as a reminder that the unique skill sets that form everyday life – and special occasions like a horse race – in the United States are often performed by those whose livelihood hangs on a common-sense interpretation of our immigration laws and regulations.