With the rebounding economy, employers in the hospitality industry are faced with the daunting task of securing enough qualified skilled and unskilled laborers in an ever-shrinking U.S. labor pool.  Hotels and resorts, especially those in seasonal resort areas (e.g. Hilton Head, Destin, Vail, Mackinac) historically have recurring short-term seasonal, peakload or event-based demands for additional workers.
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A nonimmigrant classification (temporary “work permit”) available to all types of employers, regardless of industry, is the H-2B classification. This classification is used for a foreign laborer (or usually large groups of laborers—e.g. hundreds) coming temporarily to the United States to perform nonagricultural temporary service or labor, in the event U.S. workers capable of performing such service or labor cannot be found.

The U.S. Immigration & Naturalization Service (“INS”) grants the H-2B status. However, the employer must first undergo a U.S. Department of Labor (DOL) process known as "temporary labor certification" to show that no qualified U.S. workers are available. The petitioning employer may apply for as many workers as it needs (in some instances, hundreds).

Examples of H-2B Hospitality Occupations:

The petitioning hotel or resort must show the DOL that employment of foreign workers will not adversely affect the wages and working conditions of similarly employed workers in the United States.  To be eligible to sponsor H-2B workers, the employer must demonstrate to the DOL that its need for the type of duties to be performed by the foreign worker(s) does not exceed one year and the need fits into one of the four following categories:

1. A One-time Occurrence (e.g. new hotel constructed; special event);
2. A Seasonal Need  (e.g. traditional established tourist season);
3. A Peakload Need  (e.g. based upon a season or other peakload event); or
4. An Intermittent Need  (e.g.  intermittent conventions).

Overall, the H-2B application process usually takes 90-120 days to complete.  Under the DOL regulations, the employer cannot file the petition for temporary labor certification more than 120 days before the workers’ services are needed. If the labor certification is granted by the U.S. DOL, the employer then is eligible to file a petition with the INS and thereafter, the U.S. Consulate or Embassy in the country where the foreign worker or group resides.

Employers engaged in the business of supplying workers to hotels and resorts have a difficult if not impossible task of obtaining permanent labor certification from the U.S. Department of Labor.  The DOL usually takes the position that employment contractors or “job shops” have a permanent or year-round need for the services of temporary laborers.  Even if the DOL denies the approved labor certification, many job shop employers in fact have true seasonal or peakload needs for additional workers during the prime tourist season and can often obtain H-2B approval from the INS with “countervailing evidence”.

 

The H-3 Option for Trainees

H-3 status is for foreign trainees who are seeking entry into the U.S. at the invitation of a U.S. employer (hotel or resort) for the purpose of receiving training. The H-3 trainee typically is coming to the U.S. to receive hotel management training that will assist him or her in pursuing a career with a hotel or resort property outside the U.S. In many instances, a multinational hospitality corporation with an established corporate-wide training program can utilize the H-3 classification to bring groups of foreign employees to the U.S. facility for training if such training is not available elsewhere. 

In some instances, hospitality employers with international operations may “transfer” employees from overseas properties to U.S. properties in L-1A or L-1B status.  If the foreign employee has worked for the overseas property for 1 year (or in some instances, 6 months) during the past 3 years, the employee may be transferred to the U.S. as a “specialized knowledge” worker or a “multinational manager” of an “essential function” of the hotel’s business.  L-1 status is superior to H-2B, H-3 or J-1 (discussed infra). 

The H-3 training program cannot be used to employ trainees in "productive" U.S. employment. In other words, the training must be actual training with only incidental employment.  However, on-the-job training is a hospitality industry standard and the H-3 status is an excellent option for hiring a foreign national who does not have a four-year degree or equivalent.

Because the INS sometimes takes up to a couple of months to adjudicate an H-3 petition, some employers may be better served pursuing what is referred to as "B-1 in lieu of an H-3" status. The B-1 status may be used in the alternative and can often be obtained more expeditiously at the embassy or consulate.

 

Qualifying Requirements

To qualify for H-3 status, the petitioning employer is required to show that:

1. The training is not available in the alien's home country;
2. The training is not designed to recruit/train aliens for eventual U.S. staffing;
3. The trainee will not engage in productive employment unless incidental or necessary; and
4. The training will assist the trainee in pursuing a career outside the U.S.

 

Traits of an Approvable Training Program

Explicit description of the type of training and supervision the employer will provide including the specific subject matter of the training and the training program's fixed schedule and objectives:

• Detailed program structure, akin to a course curriculum, showing the time to be spent in classroom;
• Full explanation of the proportion of time to be spent in "productive" employment as opposed to classroom instruction and/or "on-the-job" training;
• Discusses the alien's proposed career abroad and how training will assist him or her;
• Explains why such training is not available in alien's home country;
• Explains the source of any remuneration the alien may receive and the benefits that may accrue to the employer as a result of providing the training.

 

 

Duration or Length of Stay

• Total initial validity period of up to 2 years.
• Extensions are difficult to obtain because the employer must explain why the initial period of stay was insufficient, although extensions may ostensibly be obtained in some instances.

 

 

Application Procedure

 

The H-3 process is a one-step process (sometimes two-step process). The employer files the Form I-129 petition with the U.S. Immigration and Naturalization Service. H-3 petitions generally take 90 days to process with the INS Service Center. However, the employer may pay an additional $1,000 Premium Processing fee to obtain a more expedited decision (generally two weeks).

When the INS approves the H-3 petition, it will cable the approval notice to the designated U.S. Embassy or Consulate. At the U.S. Embassy or Consulate, the H-3 trainee will then apply for the H-3 visa stamp to enter the United States as an H-3 trainee.

 

 

 

Spouse and Children of H-3 Trainees

The spouse and unmarried minor children of the H-3 trainees may reside temporarily in the U.S. in H-4 derivative status. However, U.S. Embassies and Consulates may be reluctant to issue the H-3 trainee visa if the trainee cannot show strong ties to the home country. Attempting to bring dependents on H-4 status may affect the ability to show strong ties. Although the H-4 status does not authorize the spouse and children for U.S. employment, they may be able to change to H-1B or some other work-authorizing status if they meet the qualifying requirements. Also, the derivative spouse and children may attend accredited schools and universities in H-4 status.

 

 

 

J-1 Exchange Visitors ( Trainees and Summer Exchanges)

In general, J-1 visa classification is used by foreign students, scholars, medical interns, international visitors, and industrial/business trainees to enter the United States as "exchange visitors" to participate in U.S. government approved Exchange Visitor Programs. The U.S. Department of State oversees the administration of Exchange Visitor Programs.

U.S. employers may employ trainees in J-1 status through their own approved programs or through established umbrella programs. Depending upon the J-1 category, the trainee may be employed for 12 to 24 months, but the duration is usually 18 months. Employers may be able to qualify as J-1 sponsors if they have a legitimate training program that offers an opportunity for cultural exchange. Although the State Department has increased its scrutiny of J-1 sponsor applications in the past years, J-1 programs are on the rise.

Our firm handles many such cases for small and large hotels and resorts.  In addition, we have been successful in obtaining H-2B approvals for labor contractors.  Click here for more information or free consultation.