Staff Shortages: Have You Considered An H-2B Visa Program?
By Jerome G. Grzeca, Founder & Managing Partner, Grzeca Law Group, S.C.
It’s no secret that the hospitality industry has suffered greatly because of the COVID-19 pandemic and its resulting economic and financial fallout. As an unexpected twist to recovery, U.S. hotels are still unable to find enough U.S. workers to fill certain positions.
Many hotels contact our office to inquire about alternative visa programs to supplement their workforce, and we advise them to seek foreign national workers through the H-2B temporary visa program.
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 show that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. Our office has filed hotel H-2B petitions for room attendance, stewards, servers and cooks.
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, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 through March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 through September 30). However, foreign nationals with H-2B visas who are already in the U.S. working for other employers and who are recruited by another U.S. employer are not counted against the "cap".
According to a recently published list, H-2B petitions may be approved for nationals of 80 countries designated by the Secretary of Homeland Security, with the concurrence of the Office of the Secretary of State, as eligible to participate in the H-2B program.
U.S. employers planning to petition 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 peak-load need. To prove a one-time occurrence, a petitioning employer must show that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker, or that it has not employed workers to perform a specific service in the past and will not need workers to perform that service in the future.
An employer claiming an intermittent need must show that it has not employed permanent or full-time workers to perform certain services, and occasionally or intermittently needs temporary workers to perform those services for short periods. Based on these definitions, it is highly unlikely that hotels would qualify to hire temporary foreign national workers under either of these two categories.
The third category, a seasonal need, is one that is traditionally tied to a season of the year by an event or pattern and is of a recurring nature, but a petitioning employer would have the specify the periods of time during each year when the services are not needed. Because it would be unlikely if not impossible for a hotel to prove that services of certain types of workers were not needed at all during a specific period of time in a year, the seasonal need would not serve as a basis for hiring foreign nationals for temporary H-2B positions.
This leaves a peak-load need as a basis to petition for foreign nationals to fill temporary jobs at hotels. To establish a peak-load need, a U.S. hotel would need to 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.
Generally, USCIS may grant H-2B classifications for up to the period of time authorized on the temporary labor certification, but an employer cannot request a temporary position for more than ten months in a calendar year. H-2B classifications may be extended for qualifying employment in increments of up to one year each by filling new, valid temporary labor certifications. However, the maximum period of stay for a foreign national in an H-2B classification is three years. After that, the foreign national must depart and remain outside the U.S. for an uninterrupted period of three months before seeking readmission as an H-2B non-immigrant.
Meet the Author: Jerome G. Grzeca
Jerome G. Grzeca, Marquette 1988, is the managing partner of Grzeca Law Group, S.C., Milwaukee, where he practices in employment-based immigration law.
