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May/June 2007 Hiring
Foreign Hospitality Workers
The complex challenges confronting the industry today are compounded by the fact that many positions within the industry cannot be automated, outsourced, or subcontracted, forcing employers to rely on both skilled and unskilled foreign labor. Occupations in the hospitality industry range far and wide, from management positions and chefs to bartenders and housekeepers. Some even require artistic skill to the point of overlap with the entertainment industry. Different Visas for Different Work E-2
Chefs holding managerial or specialist positions can be issued E-2 visas
to work for certain qualified employers. A typical example: a Japan-based
restaurant chain of considerable size may employ a number of chefs from
Japan by using E-2 visas. Further, a chef starting his own restaurant
could be eligible for an E-2 visa if he is the principal investor. Assuming
a company or enterprise qualifies for E-2 visas, executives, managers,
supervisors, and persons with specialized knowledge may be granted E-2
status. H-2B Employers of H-2B workers in the hospitality industry typically include restaurants, hotels, resorts, casinos, ski resorts, and amusement parks. Chefs, for example, may qualify for temporary positions during a busy summer or winter season. Once it proves a foreign national will occupy a temporary or seasonal position, however, the employer is barred from sponsoring that person for a permanent labor certification for that specific position. The requirement that the employer’s need for the foreign national’s skills be temporary makes the H-2B visa useful for the hospitality industry, but only 66,000 are available! The types of H-2B-eligible jobs filled by foreign nationals include such positions as wait staff, front desk clerk, housekeeping staff, food servers, ride operators, maintenance workers, lobby attendants, golf caddies, ski instructors, and ski-lift operators. Foreign entertainers employed in the hospitality industry may also qualify. Of course, H-2B positions are by their nature short term and seldom lead to full-time, gainful employment. As such, they are not always attractive to local U.S. workers. J-1 A cook seeking exposure to how U.S. restaurants operate or training in a particular aspect of the business may obtain, through a preapproved sponsor, a J-1 trainee visa for up to 18 months. Organizations may have J-1 programs specifically accredited for training in the culinary arts. Many J-1 programs also sponsor hotel management training for young foreign nationals looking for work experience in U.S. management systems. L-1 Chefs with management responsibilities employed by companies with U.S. and international presence could be eligible for L-1A visas. It is also possible for a chef or cook with specialized knowledge to obtain an L-1B visa. L-1B or specialized knowledge visas for managers in the hospitality industry may be available for individuals familiar with the company’s accounting systems, security measures, human resources methods and policies, computer systems, and other aspects that may relate to proprietary knowledge of the employer. Multinational hotel management companies and hotel chains may transfer their executives and managerial employees to the United States with L-1A visas. They must demonstrate that an employee will have executive and managerial responsibility by overseeing different tiers of employees or professionals or that the individual will be a functional manager. O-1 O-1 visas are available for chefs and other positions that require extraordinary ability, but extensive evidence is required to show that they are culinary artists “of distinction” who are “renowned, leading or well-known” in the field. For those in high management positions or distinguished hotel managers, articles about the hotels they have managed, awards received or won, and so forth can help them qualify for an O-1 extraordinary ability visa. Unlike chefs, who as artists must satisfy the “prominent” standard, a hotel or restaurant manager must show he or she is “one of the small percent who have risen to the top of the field of endeavor.” Q-2 The Q-2 visa is specific to nationals of the United Kingdom or the Republic of Ireland who have resided in Northern Ireland or one of six designated counties in Ireland for at least 18 months before applying for the program. The participant must also have the intent to come to the U.S. temporarily, for a period not to exceed 24 months, for the purpose of obtaining training and employment in several industries, including hospitality. This visa has many requirements, but in times of shortage and with good long-term planning it can be a great option. TN Chefs are not included in the NAFTA Schedule of Professionals. Some chefs, however, may work from time to time as management consultants to advise on designing, building, opening, advertising, and menu-planning for new restaurants. In this situation, a TN management consultant visa may be granted to a chef from Canada or Mexico. Hotel managers, however, are listed in the NAFTA Schedule of Professionals. To qualify for a TN hotel management visa, the position must be managerial. Regulations regarding foreign workers require that they have a “baccalaureate or licenciatura degree in hotel/restaurant management; or post-secondary diploma or post-secondary certificate in hotel/restaurant management and three years’ experience in hotel/restaurant management.” Employment-Based Immigrant Visas (Green Cards) Chefs may qualify for labor certifications as well as multinational manager and extraordinary ability permanent resident classifications. Chefs and cooks often are given favorable treatment by the U.S. Department of Labor (DOL) due to the fact that there is a well-known shortage of “foreign specialty” cooks and chefs. Yet, USCIS and U.S. State Department consuls are often hostile to applications for these workers. It is extremely important, therefore, to support a petition with as much evidence as possible to verify the foreign national’s work experience. If he or she has qualifying U.S. work experience, basing the labor certification solely on that experience, rather than including overseas work, can help minimize the possibility of an investigation. Immigrant visa petitions based on extraordinary ability require extensive, solid supporting evidence. Articles featuring the individual, endorsement letters from prominent chefs and other celebrities and personalities, his or her cookbooks, and articles and reviews in prestigious publications are all evidence that can help prove extraordinary ability for this classification. High-profile chefs featured in prominent print publications covering the new breed of charismatic chefs, those who host cooking shows, “elite chefs,” and top chefs who appear on talk shows or speak at public events would have the evidence necessary to qualify, perhaps, for extraordinary ability. Executive chefs, chefs de cuisine, and others who qualify for L-1A multinational executive or manager visas may also qualify for employment-based immigrant visas in the executive and manager classification. Documenting the managerial responsibilities of a job in the United States, as well as the beneficiary’s managerial position for at least one year with the international company or enterprise abroad, is a must. Hotel and restaurant executives and managers who work for companies or enterprises with international and U.S. presence that sponsored them for L-1A visas could be eligible for permanent resident status under the multinational executive/manager category. The primary issue usually is whether the foreign national oversees other individuals or is a functional manager. Experience with large hotels and restaurants with a hierarchical multilevel structure and a large number of employees makes it easier to prove managerial capacity. Some chefs de cuisine who oversee cooks (who, in turn, supervise food preparers and dishwashers) could qualify as managers. A regular manager in a smaller enterprise, however, might not oversee other professionals or tiers of employees, so it might be necessary to establish that he or she is a functional manager. Labor certifications can be difficult to obtain for hospitality management positions. Large and top hotel organizations and haute cuisine restaurants would benefit by requiring work experience from employees at other top enterprises and their sponsorship of them for labor certifications. It is possible that DOL would require a “business necessity” justification from employers. Submitted by Hector
A. Chichoni. Mr. Chichoni practices law with Squire Sanders & Dempsey
LLP and co-chairs the immigration practice in Florida. He focuses on
all aspects of U.S. immigration law and global human resources strategic
planning. Mr. Chichoni has a vast legal background and experience which
covers 10 years of practice in U.S. immigration and complex export control
matters. He is an author, a legal presenter, and a lecturer in both
fields. You can contact Mr.
Chichoni at hchichoni@ssd.com. |
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The
hospitality industry is a $3.5 trillion service sector of the global
economy and one of the largest in the United States. It is a highly
diverse industry and, in the United States, one of the most dependent
on foreign tourism. It covers a variety of service industries and spans
a broad spectrum of employers, such as hotels, resorts, casinos, bars,
and restaurants, to name a few. The restaurant and food service industry
alone employs more than 13 million people, and annual restaurant sales
top $500 billion dollars; its workforce is expected to grow 15 percent,
to roughly 2 million jobs. Similarly, the U.S. Bureau of Labor Statistics
predicts an 18-percent growth in hospitality jobs by 2012, requiring
close to 1.6 million new workers. Together, accommodation and food service
make up about 8.1 percent of all employment. Approximately 1.6 million
restaurant employees today are immigrants and other non-U.S.-born individuals.
The immigrant worker population in entry-level positions in U.S. hotels
and restaurants amounts to 80 percent of the workforce.