Mr. Wildes

Hospitality Law

The H-2B Visa: A Solution to Your Busy Season

By Michael Wildes, Partner , Wildes & Weinberg

Is your hotel one of the many subject to seasonal demand? Whether it’s winter in Vail or Mardi Gras in New Orleans, many hotels are in the same boat when it comes to meeting their staffing needs during high season. Fortunately, the H-2B visa was designed with exactly that in mind. The H-2B visa is a non-agricultural worker’s visa meant to fill an employer’s need on a temporary basis, defined as either a one-time, seasonal, peak-load, or intermittent need. Lucky for those in the hotel industry, qualifying positions include food servers, front desk workers, housekeepers, line cooks, ski lift operators and others, as long as you can clearly demonstrate that the need is seasonal or otherwise temporary in nature.

The total number of H-2B visas that can be issued is 66,000 per fiscal year, with 33,000 issued for employment beginning between October 1 and March 31 and another 33,000 issued for work taking place between April 1 and September 30. If the winter visa cap is not filled, the unused visas are carried over into the summer term; however, unused visas from a previous year will not roll over into the next fiscal year. For hoteliers struggling to find housekeepers and other staff members during the busy season, the H-2B visa may come as welcome relief, although some time and effort is required to acquire it.

The procedure requires proof that there is a shortage of temporary workers in the labor market. Although we can all appreciate the U.S. Department of Labor’s efforts to protect the American workforce, proving the shortage through a temporary labor certification process can be a somewhat lengthy and complicated process. The employer must describe his/her own business history and schedule of operations throughout the year, explain the temporary nature of the position offered, and prove that the position meets the regulatory standard of one-time occurrence or a seasonal, peak-load or intermittent need. The Application for Temporary Employment Certification also requires, among other things, that the employer prove the position offered is not vacant due to strike or labor dispute, that the position is available to all candidates regardless of race, color, age, national origin, or other protected class and, most importantly, that there are not similarly qualified American job candidates available to take the position. To prove the latter, the employer must demonstrate that he/she actively recruited for American hires through classified ads and found that there were not sufficient U.S. workers available.

Other restrictions to the H-2B visa may apply. For one, only foreign nationals from certain countries are permitted to file for H-2B visas --individuals from countries not on the list must have their petitioning employer appeal directly to the Secretary of Homeland Security and show that approval of a particular worker’s visa would be in the United States’ best interest. Another potential caveat is that visas are granted for a period of time no longer than one year (remember though, that if you are petitioning on the grounds of seasonal need, a year-long visa may not be appropriate). The positions offered must be full time. Also, an H-2B visa may be extended in increments no longer than one year and for a total duration not longer than 3 years. Each renewal requires a new temporary labor certification as well. One common example of legitimate grounds for an H-2B extension is that of a bridge being built within an anticipated time frame of 11 months. If, due to unforeseen circumstances, the bridge construction requires an additional 6 months of work, the petitioner of any H-2B visa holder on the construction crew may refile for an extension of stay. In the hotel industry, however, especially in areas with a fairly predictable busy season, an extension of stay may be harder to substantiate.

The United States Citizenship and Immigration Services (USCIS) requires that any H-2B visa holder who has held that status for a total of three years leave the United States for an uninterrupted period of three months before re-entering. While still in status, H-2B visa holders do have the ability to travel freely within and beyond United States borders and their dependents may reside with them as well, although they are not permitted to seek employment.

Since the H-2B visa is job-specific, the beneficiary may not perform work in any other capacity. For example, if you were to assign a restaurant server to pitch in for a housekeeper who called in sick, the server would be violating the terms of his visa. He also may not change positions during the duration of his visa status. In terms of an employee’s responsibilities to his employer, his visa—and therefore his employment—is linked directly to the petitioning employer and he may not work for anyone else, although another interested employer could theoretically offer to sponsor him and he may change employers in that way. Once again, the new employer would have to seek a temporary labor certification, including the fairly rigorous recruiting process.

As far as the petitioning employer is concerned, he or she must provide free housing to all workers who cannot reasonably return to their residences. Rental housing is also permitted. H-2B employees must be paid the same rate as the U.S. workers on staff and that wage must be as high as the Adverse Effect Wage Rate (established by the Department of Labor), the federal or state minimum wage or the prevailing hourly wage, whichever is higher. These additional measures are meant to protect foreign-born workers from exploitation and also to prevent employers from undercutting the value of American labor.

The employer must also provide three meals per day to each worker or provide kitchen access so that workers may make their own meals. The employer may charge each worker a certain amount in compensation. Moreover, there are similar additional requirements that the employer provide transportation to and from the workers’ housing and place of work, or compensate employees for costs incurred while traveling to work. Further, the employer must provide workers compensation insurance if required by state law, or equivalent insurance to all workers if not otherwise mandated. Proof of insurance is required when seeking temporary labor certification and failure to provide it may result in the denial of a labor certification application.

Not many American visas are easy to acquire and the H-2B visa is no exception. However, the H-2B visa serves a very important role in seasonal industries such as hospitality. While the employer must expend some time, money and energy in the pursuit of H-2B visas for potential employees, the visa does present a very viable option for hoteliers who struggle to find adequate staff for the high season.

Consulting an immigration attorney will minimize the headaches involved and it will be found that pursuing legitimate visas for employees is much safer for a business than seeking undocumented labor. This is because the culture of U.S. government enforcement has shifted toward employers and several affluent hotel resorts have already been targeted by USCIS’s investigative branch. Not only do unauthorized employees face deportation, but the employers themselves face significant civil and criminal penalties. Until comprehensive immigration reform succeeds in Congress, hoteliers and other employers will continue to have to jump through hoops to seek proper visas for their employees.

At the end of a busy season, though, when your guests are happy and your rooms are full, it will all be worth it.

Michael Wildes is the Mayor of Englewood, NJ, an immigration lawyer and a former federal prosecutor. As partner of preeminent immigration law firm Wildes & Weinberg, Wildes has become internationally renowned for having represented the United States Government in immigration proceedings, for the successful representation of several defectors who have provided hard-to-obtain national security information to the United States and, most recently, for obtaining an injunction to prevent Libyan leader Muammar Gaddafi from residing in New Jersey during the 2009 UN Summit. Mr. Wildes can be contacted at 212-753-3468 or mwildes@wildesweinberg.com Extended Bio...

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