Mott Goes To The Mat For Assistant Denied Immigration Visa
Apr 15, 2015 20:27:10 GMT -5
Post by Evelyn on Apr 15, 2015 20:27:10 GMT -5
Can the dumb Gov influence immigration?!!
Mott Goes To The Mat For Assistant Denied Immigration Visa
by Natalie Voss
Bloodhorse
U.S. District Court judge handed down a decision last week in a case brought by Hall of Fame trainer Bill Mott against government officials related to an employee’s visa denial. Judge Reggie Walton rejected Mott’s preliminary injunction requesting a stay of assistant trainer Rodolphe Brisset’s visa denial while Mott continues to pursue a complaint against four federal government employees. The complaint, filed by the stable in March, concerns last October’s denial of a O-1B visa renewal for four-year Mott employee Brisset. Walton also hinted that he doubted the complaint, which has yet to be briefed, would go far.
Jennifer Cook of Benach Ragland LLP, Mott’s attorneys, called the stay denial “disappointing.”
Mott’s complaint names Leon Rodriguez, director of U.S. Citizenship and Immigration Services, Jeh Charles Johnson, secretary of the Department of Homeland Security, Ron Rosenburg, chief of U.S. Citizenship and Immigration Services, and Carrie Selby, director of U.S. Citizenship and Immigration Services.
Mott’s argument is that the U.S Citizenship and Immigration Service office approved at least two nearly identical visa extension applications from French native Brisset over the past few years. Without an explanation as to the change in the government’s position, the action could be viewed as “arbitrary” and “capricious.”
“It’s a tough situation for a lot of trainers because they don’t fit squarely into any of the categories of visas that are available,” said Cook.
The action is intended to compel the defendants to review Brisset’s application again.
Judge Walton was skeptical that the agency failed to consider Brisset’s circumstances adequately and said Mott failed to demonstrate that he would lose significant revenue from the stable without Brisset. In his time working for the stable, Brisset has ridden, trained, and/or saddled some of Mott’s best runners in top-level races, including Emollient, Royal Delta, and To Honor and Serve.
Experts in the immigration field say the case is one of many examples of a fundamental misunderstanding between federal immigration officials and the horse racing industry.
There are three types of visa categories that apply to workers in the Thoroughbred industry: The P1 category for professional athletes, the H-2B category for grooms and other barn help, and the O-1 category for “outstanding people.” None of the three categories were engineered with racing in mind, and all three present a slightly different challenge to the applicant.
Perhaps surprisingly, it’s not difficult to get federal officials to see jockeys as athletes for the P1 visa, but it can be challenging to have them seen as professionals who have received national or international acclaim in their field.
“The problem is you get these apprentices in some of these Latin American countries like Panama and Peru, they may have won four or five races before they come here, so sometimes it’s difficult to establish national or international acclaim,” said attorney George Crimarco. “We try to establish that with affidavits and things like that.”
Crimarco estimated he has represented about half of the top 100 jockeys who have come into the U.S. from foreign shores to ride, and he has also dealt with cases of grooms and assistant trainers.
The H-2B category exists for “temporary, non-agricultural workers.” The petitioning employer for an H-2B program must demonstrate that there are not enough workers already in the country to satisfy the operation’s needs, the hiring of H-2B workers won’t adversely affect wages of similarly-employed U.S. workers, and that the need for H-2B workers is one-time, intermittent, short-term, or seasonal. Trainers can frame the request as a seasonal one, but since most barns operate year- round at different tracks, immigration officials sometimes disagree that there is seasonal change in worker requirement. Crimarco said it’s easier to make a case if the stable migrates between several states and has to hire a few more people each time the operation moves.
The O-1B visa waiver program is reserved for non-immigrants with “extraordinary ability or achievement,” specifically those in the arts or motion picture/television industry. O-1B holders have to demonstrate “extraordinary ability” in their field, or national/international acclaim or awards (animal training is included in this category as an “art”).
Jockeys such as Frankie Dettori and Kieren Fallon have an easy time making a case for international acclaim for their P1 visas, as their jobs are very public. For those on the ground whose work is largely unseen, like assistant trainers, the “acclaim” angle can be more difficult to argue.
To further complicate matters, holders of these types of permits have to reapply to legally stay in the country, but there’s no system for sending their extension applications back to the same immigration reviewer consistently. This means there’s no way for applicants to know if they will pass muster with the next reviewer, even if they’ve been approved before—as the Brisset case demonstrates.
Cook said the government’s position is that immigration reviewers don’t have to follow their agency’s past precedent if they believe previous extension approvals were given in error, which has a lot of trainers and assistants wondering about the fate of upcoming visa extensions. Cook’s practice began seeing a lot of O-1B visa denials for horse trainers in 2014, despite their having been approved in that category for years. No one is sure why the government has changed its position on horse trainers’ eligibility for the category, or where they’re supposed to apply instead.
Crimarco said this phenomenon of an application being approved by one reviewer and denied by another is not uncommon, and it sends a lot of people packing. It’s rare that visa holders or their employers are able to put out the cash for a court case if they are denied an appeal from the immigration office. If there is a threat to bring a case to federal court, which Crimarco estimates costs $35,000 to $40,000, Immigration Services will often settle the case without going to trial.
“What they don’t want is for precedent to be set in a federal context,” said Crimarco. “If it’s in a client’s interest to settle it, I go ahead and do it.
“The problem with my practice is there are no rules. We’re operating mostly in the Wild West here. On a scale of 1 to 100, the number of people who understand horse racing in the government is probably 1.5. And horse racing doesn’t do much to better the situation, by trying to get immigration laws passed that would benefit the industry. They just take punches to the belly and don’t do anything about it.”
The problem with trying to change the laws is the length of the learning curve—by the time legislators grasp the way the industry works, their terms are often over.
“The change in course has many horse trainers very concerned,” said Cook. “You’ve got guys who had their O’s approved through 2015 or 2016 and they’re going to have to renew them. This decision on the preliminary injunction has them very concerned. They don’t know what they should be doing now, and really it seems to suggest that only U.S. workers will be able to apply for these positions.”
Now that a stay of Brisset’s application denial has been turned down, he is without a visa and in limbo until the judge makes a final decision on Mott’s complaint.
Mott Goes To The Mat For Assistant Denied Immigration Visa
by Natalie Voss
Bloodhorse
U.S. District Court judge handed down a decision last week in a case brought by Hall of Fame trainer Bill Mott against government officials related to an employee’s visa denial. Judge Reggie Walton rejected Mott’s preliminary injunction requesting a stay of assistant trainer Rodolphe Brisset’s visa denial while Mott continues to pursue a complaint against four federal government employees. The complaint, filed by the stable in March, concerns last October’s denial of a O-1B visa renewal for four-year Mott employee Brisset. Walton also hinted that he doubted the complaint, which has yet to be briefed, would go far.
Jennifer Cook of Benach Ragland LLP, Mott’s attorneys, called the stay denial “disappointing.”
Mott’s complaint names Leon Rodriguez, director of U.S. Citizenship and Immigration Services, Jeh Charles Johnson, secretary of the Department of Homeland Security, Ron Rosenburg, chief of U.S. Citizenship and Immigration Services, and Carrie Selby, director of U.S. Citizenship and Immigration Services.
Mott’s argument is that the U.S Citizenship and Immigration Service office approved at least two nearly identical visa extension applications from French native Brisset over the past few years. Without an explanation as to the change in the government’s position, the action could be viewed as “arbitrary” and “capricious.”
“It’s a tough situation for a lot of trainers because they don’t fit squarely into any of the categories of visas that are available,” said Cook.
The action is intended to compel the defendants to review Brisset’s application again.
Judge Walton was skeptical that the agency failed to consider Brisset’s circumstances adequately and said Mott failed to demonstrate that he would lose significant revenue from the stable without Brisset. In his time working for the stable, Brisset has ridden, trained, and/or saddled some of Mott’s best runners in top-level races, including Emollient, Royal Delta, and To Honor and Serve.
Experts in the immigration field say the case is one of many examples of a fundamental misunderstanding between federal immigration officials and the horse racing industry.
There are three types of visa categories that apply to workers in the Thoroughbred industry: The P1 category for professional athletes, the H-2B category for grooms and other barn help, and the O-1 category for “outstanding people.” None of the three categories were engineered with racing in mind, and all three present a slightly different challenge to the applicant.
Perhaps surprisingly, it’s not difficult to get federal officials to see jockeys as athletes for the P1 visa, but it can be challenging to have them seen as professionals who have received national or international acclaim in their field.
“The problem is you get these apprentices in some of these Latin American countries like Panama and Peru, they may have won four or five races before they come here, so sometimes it’s difficult to establish national or international acclaim,” said attorney George Crimarco. “We try to establish that with affidavits and things like that.”
Crimarco estimated he has represented about half of the top 100 jockeys who have come into the U.S. from foreign shores to ride, and he has also dealt with cases of grooms and assistant trainers.
The H-2B category exists for “temporary, non-agricultural workers.” The petitioning employer for an H-2B program must demonstrate that there are not enough workers already in the country to satisfy the operation’s needs, the hiring of H-2B workers won’t adversely affect wages of similarly-employed U.S. workers, and that the need for H-2B workers is one-time, intermittent, short-term, or seasonal. Trainers can frame the request as a seasonal one, but since most barns operate year- round at different tracks, immigration officials sometimes disagree that there is seasonal change in worker requirement. Crimarco said it’s easier to make a case if the stable migrates between several states and has to hire a few more people each time the operation moves.
The O-1B visa waiver program is reserved for non-immigrants with “extraordinary ability or achievement,” specifically those in the arts or motion picture/television industry. O-1B holders have to demonstrate “extraordinary ability” in their field, or national/international acclaim or awards (animal training is included in this category as an “art”).
Jockeys such as Frankie Dettori and Kieren Fallon have an easy time making a case for international acclaim for their P1 visas, as their jobs are very public. For those on the ground whose work is largely unseen, like assistant trainers, the “acclaim” angle can be more difficult to argue.
To further complicate matters, holders of these types of permits have to reapply to legally stay in the country, but there’s no system for sending their extension applications back to the same immigration reviewer consistently. This means there’s no way for applicants to know if they will pass muster with the next reviewer, even if they’ve been approved before—as the Brisset case demonstrates.
Cook said the government’s position is that immigration reviewers don’t have to follow their agency’s past precedent if they believe previous extension approvals were given in error, which has a lot of trainers and assistants wondering about the fate of upcoming visa extensions. Cook’s practice began seeing a lot of O-1B visa denials for horse trainers in 2014, despite their having been approved in that category for years. No one is sure why the government has changed its position on horse trainers’ eligibility for the category, or where they’re supposed to apply instead.
Crimarco said this phenomenon of an application being approved by one reviewer and denied by another is not uncommon, and it sends a lot of people packing. It’s rare that visa holders or their employers are able to put out the cash for a court case if they are denied an appeal from the immigration office. If there is a threat to bring a case to federal court, which Crimarco estimates costs $35,000 to $40,000, Immigration Services will often settle the case without going to trial.
“What they don’t want is for precedent to be set in a federal context,” said Crimarco. “If it’s in a client’s interest to settle it, I go ahead and do it.
“The problem with my practice is there are no rules. We’re operating mostly in the Wild West here. On a scale of 1 to 100, the number of people who understand horse racing in the government is probably 1.5. And horse racing doesn’t do much to better the situation, by trying to get immigration laws passed that would benefit the industry. They just take punches to the belly and don’t do anything about it.”
The problem with trying to change the laws is the length of the learning curve—by the time legislators grasp the way the industry works, their terms are often over.
“The change in course has many horse trainers very concerned,” said Cook. “You’ve got guys who had their O’s approved through 2015 or 2016 and they’re going to have to renew them. This decision on the preliminary injunction has them very concerned. They don’t know what they should be doing now, and really it seems to suggest that only U.S. workers will be able to apply for these positions.”
Now that a stay of Brisset’s application denial has been turned down, he is without a visa and in limbo until the judge makes a final decision on Mott’s complaint.