Mr. Grzeca

Hospitality Law

Staffing Solutions for the Hotel Industry

By Jerome G. Grzeca, Founder and Managing Partner, Grzeca Law Group, S.C.

Hotels, like other U.S. companies, are struggling to find solutions to staffing shortages. Every month, more than a quarter-million Americans turn 65, which is a trend that has profound workforce and economic consequences in this country. In addition, unemployment rates continue to fall, dropping to 4.9% nationwide in September 2016. These changes, along with other factors like increases in occupancy rates and high labor costs, have resulted in many hotel companies having trouble finding and hiring qualified workers for open positions.

Of course, it's not an option for the rooms not to be cleaned or for the meals not to be prepared and served when employees are hard to find. This leaves current staff working too much overtime, leading to additional owner expense, as well as employee dissatisfaction and turn-over. To solve these problems, hotels are thinking outside the box, and when all else fails while trying to find local workers, they start looking abroad. As a full-service immigration firm for several international hotel companies, we often receive calls from clients asking us to help them solve these labor shortages by hiring foreign national employees. While many hotel companies utilize work visas for professional (TN, H-1B, L-1B) and managerial (L-1A, E-2) employees, many do not take advantage of options available to them with respect to "low-skilled" labor to supplement their workforce. This article focuses on immigration options that hotels may not have considered before, some of which are listed here.

Temporary Immigration Solutions

I. Temporary Need - H-2Bs

This visa classification, known as the H-2B, was designed specifically for a "temporary need" where the employer cannot find qualified U.S. workers. The temporary need, usually less than 9 months, can be a one-time occurrence, a seasonal need, a peak load need or an intermittent need. Unlike other visa categories, there is no need for the employees to have a certain level of education or experience outside of what the hotel requires for this position. Therefore, this is one of the few immigration options available for "non-professional" positions (defined by immigration as positions that don't require at least a Bachelor's Degree).

There are several planning considerations when pursing an H-2B visa classification. First, these types of visas are "capped," and there are only so many available each year. While the year is broken into two parts for the cap, it is possible for the government to run out of numbers at any time, so an employer who had planned to file a petition might lose their opportunity. Therefore, if an employer is interested in pursuing an H-2B visa classification, it would start the immigration work at least 5 months prior to when it would need the employees to start work. In addition, H-2B petitions can only be filed for citizens of certain countries (please see the current list here: https://www.uscis.gov/working-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers#H2-B%20Countries). Furthermore, there are several rules about payments for H-2B workers; for example, they must be paid at least the prevailing wage in the work area, all visa and petition expenses must be paid by the employer, and the employer must pay for their transportation to and from the U.S.

There are multiple steps to take, such as getting the government to agree on your temporary need, and posting advertisements for the position to see if U.S. workers are available for the openings. It's important to note that you do not have to identify all of the foreign workers you would like to hire at the beginning of the process, but you will have to name them before the process is completed. Also, the hotel can group together multiple employees by position (for example, 10 Stewards), eliminating the need for multiple applications at the first stage.

Of course, even if a hotel can meet all of the qualifications above and is willing to go through this process, they are often challenged with finding and recruiting the foreign workers. However, given the temporary nature of this visa, it is not a remedy for legally hiring the undocumented presently in the United States. Rather, most of these workers must come from overseas sources. International hotels have a distinct advantage in this area, as they can partner with their affiliates or subsidiaries in H-2B countries to help locate workers. They would then benefit from having a trusted colleague in that country to manage logistics and communications. These international locations could even hire extra workers and train them for a month or two in the company's policies and procedures before they "transfer" to start their temporary positions in the United States. These locations could then benefit by hiring the employees upon their return, if they so desired.

As we talk to our hotel clients, we find that many hotels have not utilized the H-2B visa classification because they cannot provide housing. This is a common misconception, and H-2B employers are not required to provide a place for their employees to stay. However, while not a legal requirement, not providing housing can pose a logistical problem for workers who do not have any ties to the area, especially when the hotel is located in an area that does not have affordable, short-term housing. Some hotels and resorts have dormitory-style housing for these types of employees. Other clients who do not have this arrangement have discussed renting or even purchasing a multiple bedroom house nearby for these seasonal employees to stay. In this case, though, there is the additional logistical problem of transportation to and from work.

While some of these requirements can seem daunting, an immigration attorney can walk you through each step of the process. Many hotels find that H-2B employees are a valuable supplement to their temporary workforce and use this immigration option on an annual basis to stay competitive.

II. Creative Uses of Other Nonimmigrant Visas

The J-1 exchange program has over a dozen categories, such as the four-month summer work-travel program, which is essentially earmarked for foreign college students who wants to experience the United States during their summer school break. In addition, more hotels are using J-1s for interns and trainees. Generally, a candidate could be classified as a J-1 "intern" if they are currently enrolled in and pursuing studies at a degree or certificate granting post-secondary academic institution outside the U.S. or if they have graduated from such an institution within 12 months of beginning the exchange visitor program. In the alternative, an individual could be a J-1 "trainee" if they are a recent graduate with one year of work experience in the field or if they have 5 years of work experience in the field. These training programs can be designed for up to 12 months and can be an important part of the hotel's management development program. It's important to note, however, that it is expected that J-1 exchange visitors will take the skills that they learn in the U.S. back to their home country at the end of their temporary stay. In order to explore a J-1 training program, you can contact a J-1 designated sponsor or find out more about J-1s here (http://j1visa.state.gov/hosts-and-employers/employers/).

Of course, a hotel should always consider a potential foreign employee's nationality when looking at immigration options. There can be special visas for individuals from certain countries. Also, hotels that are majority owned and managed by citizens of a foreign country might have special options for employees from that same country. An immigration attorney can help you sort through these potential options to advise you on the best fit for your situation.

Potential Green Card Solutions

In prior years, employers wishing to sponsor green cards for low-skilled positions had to wait several years. Because of recent advances in green card availability, it may be possible for employers seeking workers in fields that don't require a degree to apply for U.S. permanent residence for employees in a relatively short period of time. This could allow companies that desperately need multiple workers, but can wait a year or two, to solve some of their staffing needs. It would involve some work and pre-planning, but could bring in dozens of permanent workers in hard-to-fill positions at the same time.

If a hotel needs a group of 20 Housekeepers, for example, they could identify these workers and begin a green card case for all 20 open positions simultaneously. If each step is approved, the employees could be in the U.S. in as little as a year and a half. Generally, there are three steps to the permanent residence process, beginning with PERM or Labor Certification, which requires an employer to post advertisements for the position to prove that there aren't any qualified U.S. workers to take the job. The company must identify its minimum requirements for the position, but like the H-2B process mentioned above, the position doesn't have to require a degree or even any prior experience to go through this process. If no qualified U.S. workers are found and the PERM application is certified, the employer then files a petition showing its support for the employee(s) with U.S. Citizenship and Immigration Services. Finally, the potential employee can apply for an immigrant visa abroad once their PERM is approved and an immigrant visa number is available to them.

There are pros and cons to each of these options, and an immigration attorney can help you explore your situation and determine which of these, if any, might be a good solution for your property.

Jerome G. Grzeca, Founder and Managing Partner of Grzeca Law Group, S.C. (“GLG”), has practiced business immigration law for over twenty-seven years in both Washington, D.C. and Milwaukee, Wisconsin. GLG is a nationally recognized AV-rated law firm that serves employers and their foreign national employees on all aspects of immigration law. Mr. Grzeca exclusively practices in the area of employment-based immigration law, providing immigration legal services to the international business community for the hire and transfer of key personnel around the world. He partners with business leaders from a wide variety of organizations to provide timely, practical and cost-effective solutions while remaining responsive to the sensitive concerns involving the employment of international personnel. He’s represented clients in the hospitality, healthcare, biotechnology, information technology, transportation logistics, professional services, academia and manufacturing industries, among others. Mr. Grzeca can be contacted at 414-342-3000 or jgg@grzecalaw.com Please visit http://www.grzecalaw.com for more information. Extended Bio...

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