Keep Your H-2B Workers In-House: Using Regularized Recruitment

This article was co-authored by Reese Eckenrod-Snyder, Paralegal, Grzeca Law Group

In the face of massive immigration changes coming in mid-January 2025, the Biden Administration issued new final rules that took effect the weekend before Trump’s inauguration greatly impacting the H-2B visa category. These rule changes significantly enhanced the ability of U.S. companies and H-2B workers to work smoothly together to ease labor shortages across the country.

Moreover, these updates sought to increase efficiency, strengthen worker protections, and provide greater flexibility. As a brief recap, the H-2B program allows U.S. employers to bring foreign nationals to the U.S. to fill temporary non-agricultural jobs, if they can demonstrate that there are not enough U.S. workers able, willing, qualified, and available to do the temporary work. Although this article will give a brief overview of the H-2B process, it will primarily go over the new rule changes that enhance the H-2B program, with specific emphasis on the ability of multi-site hotel operators to transfer H-2B workers between sites thanks to these recent rule changes.

By way of background, there is a numerical limit or “cap” on the total number of foreign nationals who may be issued an H-2B visa during the federal government’s fiscal year. Currently, this limit is set at 66,000 per fiscal year, with 33,000 for H-2B workers who begin employment in the first half of the fiscal year (October 1 through March 31) and 33,000 for H-2B workers who begin employment in the second half of the fiscal year (April 1 through September 30). However, H-2B workers who are already in the U.S. working for other employers (“In-Country workers”) and transfer or “port” to another U.S. employer are not counted against the “cap.” This is a major benefit for companies wishing to transfer workers within its various properties which have different seasonal needs.

Previously, H-2B workers also had to be on a list of countries approved by the Secretary of Homeland Security, with the concurrence of the Office of the Secretary of State, to be eligible to participate in the H-2B program. Two of the recent rule changes are: doing away with these categorical lists allowing workers from anywhere around the world to be eligible for the H-2B program, and affirming that applying for a Green Card can no longer be the sole reason for denying H-2B status, so long as the H-2B worker meets the other filing requirements. H-2B workers’ grace periods have also been extended.

Previously, H-2B workers only had a 10-day grace period. With the new rules, H-2B workers now have a 10-day grace period before their validity period begins, a 30-day grace period after the validity period expires, and a 60-day grace period if they are terminated or voluntarily leave their position.

U.S. employers planning to petition the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) for temporary hotel workers must show that their temporary need is based on a one-time occurrence, an intermittent need, a seasonal need, or a peakload need. Typically, as hotels regularly employ workers in the needed positions operate year-round, and have generally the same season on a year-to-year basis, the first three “needs” are difficult to prove.

This leaves the last category, peakload need. To establish a peakload need, a U.S. hotel must show that it regularly employs permanent workers to perform services at its hotel, that it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand, and that the temporary additions to staff will not become a part of the hotel’s regular operation. Our office has filed numerous hotel H-2B petitions for room attendants, stewards, servers, and cooks.

Generally, the maximum temporary period for an annual H-2B program is limited to no more than nine months. However, H-2B workers can stay in the U.S. for up to three years at a time. Once H-2B workers have been in the U.S. for three years, they must leave for at least 60 days (which is another of the new rule changes as the simple 60 days used to be the complex “interrupted stay” rule) before the H-2B “timer” is reset and they can re-enter the U.S. in H-2B status. In addition, it is important to note that while there is no limit to the number of applicants allowed per petition, each separate position needed on a temporary basis must have a separate H-2B petition.

Thus, if a hotel wishes to sponsor 20 room attendants, 10 cooks, and 10 stewards, it will need three different petitions. In addition, as evidence of a peakload need, hotels should expect to submit extensive documentation including historic occupancy and food and beverage revenues and projected occupancy and food and beverage forecasts and revenues during both peakload and non-peakload seasons well in advance of their projected H-2B start date for review and analysis to their immigration attorneys. Be aware that setting a specific minimum number of H-2B workers, but wishing to raise the number the next year, can be problematic and involves producing new evidence to support the requested increase.

There are a number of steps involved in achieving H-2B status for foreign national workers. Perhaps the most important first steps are hiring an immigration law firm and an international recruitment agency in order to streamline the process. The immigration law firm will be able to advise on both the feasibility of an H-2B program at a specific hotel site, and when in the year to begin the process. As no two hotels are the same, the intricate timing of the H-2B program can be hard to determine, especially when the process must be started well ahead (at least several months) ahead of when the hotel would like H-2B workers to arrive on site to begin work.

The international recruitment agency is an integral part of the H-2B process as they are generally the company that will go out and find and interview the H-2B workers. Once the H-2B workers have been approved by the hotel, the recruitment agency will also prepare the H-2B workers for their interview at a U.S. Embassy or Consulate abroad, and coordinate, in conjunction with the hotel, the H-2B workers travel to the hotel itself.

In addition to the extensive start up documentation required, hotels will also need to conduct post-filing recruitment of U.S. workers. If any U.S. workers are found for the H-2B position, the hotel must accept and hire any applicants who are qualified and available as they may reject U.S. applicants only for lawful, job-related reasons. Near the end of this recruitment period, the hotel, through their immigration attorney, will be required to prepare and submit a recruitment report to the DOL describing the results of the required recruitment activities. If DOL subsequently certifies the Application, the hotel can file a Petition for a Non-immigrant Worker (I-129) with USCIS for each type of H-2B position.

Once the H-2B application has been certified by the DOL, the hotel may, but is not required to, designate specific foreign national workers it wishes to employ when submitting their H-2B petition to USCIS. The hotel can also substitute other foreign national workers for any “named workers” after USCIS approves the petition. “Unnamed workers” from outside the U.S. count against the “cap” mentioned previously. However, named workers who are currently in the U.S., (“In-Country workers”) through H-2B status do not. Along with the Petition, for each named prospective worker, the hotel must submit the foreign national’s passport identification page and prior U.S. non-immigrant status documents, if applicable. Following approval of the Petition, the foreign nationals who are outside the U.S. can apply at a U.S. Embassy or Consulate for their H-2B visas, permitting their entry into the U.S. in a work status.

One example of a U.S. employer petitioning for H-2B workers to fill temporary jobs based on a peakload need might be a large hotel in the South or Southwest whose guest bookings and food and beverage revenues increase in the fall and continue through the winter months and early spring, before tapering off in the summer. These increases typically occur as a result of tourists seeking relief from colder weather and due to multi-day conventions, meetings, and large group sales, resulting in additional temporary needs for employees such as room attendants, cooks, and stewards. Opposite to this season, resorts and hotels in the northern U.S. typically see higher bookings and food and beverage revenues in the spring and summer, before tapering off in the fall and winter due to the same tourists seeking relief from warmer weather and similar multi-day conventions, meetings, and weddings.

With the introduction of “portability” to the H-2B classification under the new rules, the idea of “flipping” H-2B workers from these northern and southern hotels is easier than ever, especially for owners or operators with more than one worksite. H-2B portability means that eligible H-2B workers who are already in the U.S. can now start working for a new H-2B employer immediately after the new employer files a change or extension of stay petition with USCIS, rather than having to wait for the Approval of those petitions as they did previously.

This new process will greatly speed up the transition process for both H-2B employers and workers and open up new avenues for multi-site hotel operators to ease the transitional process between their slow and busy seasons both at individual sites, and as a whole, as H-2B workers can quickly and seamlessly transition from one of their properties to another. This greatly eases what can be two of the most difficult parts of the H-2B process, training and retention.

As H-2B workers will be able to transfer back and forth between at least two interconnected properties, they will retain the training they previously received in the hotel operator’s rules, systems, procedures, methodologies, etc. It also serves as a stabilizing mechanism for both the hotel operator and the H-2B worker, as the hotel operator knows what the H-2B worker has been trained on, and can depend on them to continue to do their job at their next property, and the H-2B worker knows where it can find work after their initial H-2B work period. This will also allow hotels to mostly avoid the additional expense of international recruitment expense as they will be able to use all the H-2B workers they have already brought to the U.S.

While the process for obtaining H-2B non-immigrant status for foreign nationals requires extensive documentation and not insignificant costs, if multiple openings are covered in one petition, it can be more cost effective. Thus, under the right circumstances, the practice may allow hotel employers to meet their peakload needs, and it may ultimately save employers expenses in overtime costs for their permanent employees and charges by temporary employment agencies.

This is especially true for multi-site hotel companies with the new H-2B rule changes allowing for seamless transfers between H-2B employers through portability.