Catch-22 Keeps Track Workers From Applying for Immigration Amnesty

Benjamin Equihua Garcia would like to apply for amnesty under the new immigration law. Although he says he has lived in the United States since 1979 and outwardly appears to qualify for legalization benefits, the 27-year-old native of the Mexican state of Michoacan has a serious problem.

He is caught in a kind of Catch-22 of the new immigration law, and it may cost him his bid for permanent legal residence.

Equihua, currently employed as a groom at the race track in Del Mar, is one of several hundred track workers in California who are in the ironic predicament of having endangered their amnesty claims by becoming legal. Last year, according to the Horsemen’s Benevolent and Protective Assn., an industry group, Equihua and 486 other Southern California race track workers were granted legal visas under a U.S. immigration initiative known as the H-2 program--which is also referred to as the “guest-worker” provision. Another 253 workers at Bay Area tracks also received H-2 visas, according to the horsemen’s group, which assisted the track employees in preparing their applications and encouraged them to apply.

Before getting the H-2 visas, the workers, most of them Mexican nationals, resided and worked in the United States illegally. As far as amnesty is concerned, they would have been better off remaining illegal.

Legal Position

Under the new immigration law, amnesty applicants must demonstrate that they have lived illegally in the United States since Jan. 1, 1982. Hence, Equihua and other track workers who interrupted their illegal status by obtaining H-2 visas last year are out of luck--even if they have been living in the United States since before 1982.

The workers’ legal position would improve greatly if they could obtain amnesty, which can lead to permanent legal residence. By contrast, track officials noted that the H-2 visas can generally be extended for up to a maximum of 33 months. An H-2 visa is a temporary document--and not a route to permanent legal residence in the United States.

“We feel terrible about this,” said Robert A. McAnally, secretary-treasurer of the horsemen’s group.

Equihua and the other workers aren’t happy about it either.

“It doesn’t seem right,” said Equihua, a thin, soft-spoken man, as he bandaged the legs of a thoroughbred in a Del Mar stable.

The California horsemen decided to attempt to obtain H-2 visas for track workers at the urging of the U.S. Immigration and Naturalization Service, which conducted a series of well-publicized raids at the tracks in 1985 and demanded that the tracks hire legal residents. The H-2 program was seen as a stopgap solution.

In retrospect, it might have behooved some workers to wait for passage of the new immigration law before applying for the H-2 visas. But the law’s prospects remained cloudy until its passage.

“We couldn’t just wait for a bill that we weren’t sure would pass,” said McAnally. “We needed workers.”

About half of the 486 H-2 workers at Del Mar would probably qualify for amnesty if it were not for their H-2 visas, according to a horsemen’s survey. At the Bay Area tracks, the horsemen say, about one-fifth of the 253 H-2 workers would qualify for amnesty.

Wide Category

The track workers now find themselves amid a wide category of undocumented foreigners who, for one reason or another, were legal for some period of time since 1982--and consequently cannot qualify for amnesty. Others affected include foreigners who were in the United States for periods of time on visas issued to students, tourists, businessmen and others.

Despite the protestations by horsemen and track workers, the INS says there’s nothing that can be done.

“The basic philosophy of the bill was to provide legalization (amnesty) for people who were here illegally,” said Duke Austin, a spokesman for the U.S. Immigration and Naturalization Service in Washington. “The law is very specific in saying that you must have resided in a continuous illegal status since January, 1982. . . . They want to go back and argue the very philosophy of the bill.”

The H-2 program has traditionally been used to fill specific regional labor needs, mostly in agriculture--and mostly on the East Coast. In fiscal 1986, Austin said, 28,014 foreign workers were admitted into the United States on H-2 visas. Since most H-2 laborers work with perishable crops, many may have a chance to qualify for temporary legalization under the more liberal special agricultural worker section of the new immigration law; that provision only mandates that applicants have completed 90 days of field work during the year that ended May 1, 1986.

But track workers don’t qualify as agricultural laborers. The Catch-22 again.

Despite the bleak scenario, Harold Ezell, western regional commissioner for the INS, said he would look into the matter.

“That’s a tremendous question,” Ezell said when informed of the dilemma.

For Equihua, it could be a crucial question.

“I hope I can get amnesty,” said Equihua, as he continued work on the horse. “Who ever thought that this would happen?”