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

By Michael Wildes Partner , Wildes & Weinberg | August 07, 2011

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.

Coming up in February 2018...

Social Media: Engagement is Key

There are currently 2.3 billion active users of social media networks and savvy hotel operators have incorporated social media into their marketing mix. There are a few Goliath channels on which one must have a presence (Facebook & Twitter) but there are also several newer upstart channels (Instagram, Snapchat &WeChat, for example) that merit consideration. With its 1.86 billion users, Facebook is a dominant platform where operators can drive brand awareness, facilitate bookings, offer incentives and collect sought-after reviews. Twitter's 284 million users generate 500 million tweets per day, and operators can use its platform for lead generation, building loyalty, and guest interaction. Instagram was originally a small photo-sharing site but it has blown up into a massive photo and video channel. The site can be used to post photos of the hotel property, as well as creating Instagram Stories - personal videos that disappear from the channel after 24 hours. In this regard, Instagram and Snapchat are now in direct competition. WeChat is a Chinese company whose aim is to be the App for Everything - instant messaging, social media, shopping and payment services - all in a single platform. In addition to these channels, blogging continues to be a popular method to establish leadership, enhance reputations, and engage with customers in a direct and personal way. The key to effective use of all social media is to find out where your customers are and then, to the fullest extent possible, engage with them on a personal level. This engagement is what creates a personal connection and sustains brand loyalty. The February Hotel Business Review will explore these issues and examine how some hotels are successfully integrating social media into their operations.