Comprehensive Immigration Reform and the Hotel Industry
By Michael Wildes Partner , Wildes & Weinberg | July 03, 2011
Everywhere you turn, immigration is in the news. Beginning with Arizona's controversial SB 1070 law, more and more states have begun proposing new legislation to try to close the gap in a broken system. Every president since Ronald Reagan has tried and failed to enact comprehensive immigration reform and without action taking place in Washington, stage governments feel compelled to take matters into their own hands.
Why the big fuss? If you're a hotel manager or owner and have tried to procure a visa for a foreign-born employee, you may know how badly this country needs to update its outdated immigration laws. In our current system, individuals without a bachelor's degree in a specialty occupation field will face much difficulty qualifying for a work-based visa. Some employment-based visas, like the H-2B seasonal worker visa, do not require a professional degree but they are restricted to very limited validity periods. If you operate a seasonal business like a ski lodge, an H-2B visa may suit your needs just fine but other hoteliers may find themselves out of luck.
In 2007, executives from Mariott, Hilton, InterContinental, Hyatt, Loews and Starwood sent a letter to President Bush and high ranking members of his administration to express the hospitality industry's urgent need for comprehensive immigration reform. As more and more local municipalities take it upon themselves to pass local ordinances related to immigrants in the U.S., hotels with a foreign-born labor force find themselves stuck between a rock and a hard place. The industry does its best to remain compliant with all relevant laws but if different states, cities, and towns enact their own local statutes, company-wide policies will become unwieldy or impossible to implement.
Staffing a large hotel is no easy task and even the best run facilities experience high turnover. In a country as diverse as ours, not all job applicants will be American-born. As immigration practitioners, we come across scores of individuals every day who wish to live and work in this country with all proper authorization. Nonetheless, unless the position squarely qualifies for an H-2B temporary non-agricultural visa, not much can be done. Many, if not most, hotel staffing positions do not require a bachelor's degree and are therefore limited in their use of the H-1B specialty occupation worker's visa.
If, then, a foreign-born job applicant arrives eager for an open position, the hotel must either assume the legal risk of employing him or her unlawfully, or turn the individual away without employment and without filling an empty slot. At the height of the busy season, that could be a difficult decision to make. Whether it's deserved or not, the hotel industry has earned somewhat of a reputation as a hotbed for unlawful employment. As the Obama administration has shifted enforcement measures toward employer-end investigations, employing unauthorized workers off the books or without verifying employment eligibility could be a costly mistake.
Regarding the widely-held misconception that immigrant labor steals American jobs, the National Bureau of Economic Research published a study that found "no evidence that immigrants crowded-out employment and hours worked by natives." "At the same time," they write, "we found robust evidence that [immigrants] increased total factor productivity." Until the administration succeeds in reducing unemployment rates, however, the idea of welcoming additional workers into an already crowded job pool will not make immigration reform an easier sell.