DOS Cable on Revision to FAM on Horse Racing Employees
UNCLASSIFIED STATE 178837
R 271830Z SEP 05
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
SUBJECT: INA 101(a)(15)(B): REVISION OF 9 FAM 41.31 N6.8:
HORSE RACE-RELATED EMPLOYEES
REF: (A) INA 101(A)(15)(B)
(B) 9 FAM 41.31 N6.8
(C) DHS/CBP INSPECTORS FIELD MANUAL, CHAP. 15.4(B)(1)(B)(16)
(D) DHS OPERATIONS INSTRUCTIONS 214.2(B)(10)-E- 04 TORONTO 2715
1. Summary. To make Department and DHS guidance consistent, 9 FAM 41.31 N6.8 has been revised to remove the requirement that horse race-related employees have the same nationality as their employers to be eligible for B-1 NIV classification. End Summary.
2. 9 FAM 41.31 N6.8 states that, "An alien coming to the United States to perform services on behalf of an employer OF THE ALIEN'S NATIONALITY as a jockey, sulky driver, trainer, or groomer" is eligible for B-1 NIV classification. (Emphasis added.) Neither the DHS/CBP Inspectors Field Manual (IFM), Chap. 15.4(b)(1)(B)(16) nor DHS Operations Instruction (OI) 214.2(b)(10) contains the requirement that the employee and the employer be of the same nationality. Both extend B-1 NIV classification to, "An alien coming temporarily to perform services on behalf of a foreign based employer as a jockey, sulky driver, trainer, or groom." (The IFM does not use the word "temporarily;" otherwise the IFM and the OI are identical.)
3. We have researched the history of 9 FAM 41.31 N6.8 and conferred with DHS but cannot determine the origin of or reason for the FAM's same nationality requirement. The only references to horse-race related employees in VO's precedent files, dating from 1981 and 1982, quote the OI, which then, as now, did not contain the same nationality requirement. Nor can we now identify a rationale for keeping the requirement or for continuing to have guidance different from DHS.
4. Absent any identifiable reason to retain the same nationality requirement, and in the interest of the uniformity of treatment of visa applicants and applicants for admission, 9 FAM 41.31 N6.8 is amended to read as follows:
9 FAM 41.31 N6.8 Horse Races An alien coming to the United States to perform services on behalf of a foreign-based employer as a jockey, sulky driver, trainer, or groomer.
RICE