The Long-View: Investing in Your Foreign National Employees

By Jerome G. Grzeca Founder & Managing Partner, Grzeca Law Group, S.C. | August 2024

This article was co-authored by Carly Hetland, Immigration Attorney, Grzeca Law group

Many hotel companies with operations in America rely on trained foreign labor to successfully open, run and operate their establishments.  Most of these individuals are working pursuant to a temporary visa that will ultimately require a more permanent solution in order for them to remain in the United States beyond the time allotted.  As the American economy is still dealing with labor shortages, it is important to attract and retain foreign talent on a more permanent basis and many hotels are seeking U.S. Green Cards on their behalf to do so.  Although pursuing U.S. permanent residence is typically viewed as a benefit to the employee, it can also be a significant recruiting and retention tool for hotels.  In fact, many hotels develop formal “immigration policies” to define their support for green cards and then use that policy to promote itself when attracting candidates against competitors. These policies are discussed in more detail below.

Given that the availability of permanent residence pathways hinge on the employee’s individual credentials and background, and the nuances associated with various nonimmigrant categories, it is crucial to partner with experienced immigration counsel to fully review options and discuss strategies for permanent residence.

This article is written to provide context to the various pathways a hotel employee may take to gain permanent residence status in the United States.  In order for an individual to immigrant to the United States in an employment-based category, the United States employer must file an Employment-Based (EB) Immigrant Petition. This article will highlight some of the most-commonly used EB categories within the hospitality industry.  It is important to note that not all categories are the same, as some require the employer to seek “labor certification” (testing the U.S. labor market) while others allow the foreign national to “self-petition.”  Nevertheless, it is important to start out by stating that when an employee asks you about an “EB Visa,” they are asking about a green card. However, please note that in order to officially become a Lawful Permanent Resident (LPR) of the United States, the employee and their family must officially adjust their status to a LPR by filing an adjustment application with U.S. Citizenship and Immigration Services (USCIS) in the United States or by attending an Immigrant Visa interview at a U.S. Embassy or Consulate in their home country.  The logistics of formally “adjusting status” will not be discussed in this article.

                One of the most commonly used pathways to permanent residence for hotel employees is the Priority Worker petition as a multinational manager or executive.  Under this category, a U.S. hotel may file an Immigrant Petition on behalf of its multinational executive or managerial (personnel or functional) employee.  Individuals in managerial (personnel or functional) or executive positions within the hotel who previously held managerial or executive positions abroad typically qualify as a Priority Worker.  In addition to proving the managerial or executive nature of both the proffered permanent position and the previous position abroad, the hotel or petitioning organization must also meet certain criteria.  First, the U.S. petitioner must demonstrate that it maintains a qualifying (affiliate, branch, subsidiary or parent) relationship with the previous organization abroad.  In addition, both the U.S. Petitioner and the previous organization abroad must be actively engaged in doing business. Although the former may not be overly difficult to prove, the maintenance of the foreign employee doing business can occasionally pose difficulties to petitioners as hotel management companies change over the years.

                The EB-1 category also includes individuals who are able to demonstrate extraordinary ability in the sciences, arts, education, business or athletics.  USCIS defines extraordinary ability as “a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of their field of endeavor.”  Moreover, such a high caliber of ability is demonstrated by sustained national or international acclaim and recognition for achievements in the field of expertise and is proven by providing evidence of a major internationally recognized aware, such as the Nobel Prize.  Alternatively, extraordinary ability can also be demonstrated by providing at least three of the following: (1) Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; (2) membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts; (3) published material in professional or major trade publications or media about the beneficiary relating to his or her work in the field; (4) participation, on a panel or individually, as a judge of the work of others in the same or allied field of specialization; (5) original scientific, scholarly, or business-related contributions of major significance in the field, typically evidenced by testimonial letters; (6) authorship of scholarly articles in the field in professional journal, major trade publications or major media; (7) performance in a leading or critical role for organizations or establishments with distinguished reputations; and (8) the command of a high salary or other significantly high remuneration for services, in relation to others working in the field.  Despite the regulations requiring that an individual prove three of the aforementioned eight available criteria, USCIS must also conduct a final merits test, which is essentially a totality of the circumstances assessment, before approving the petition.  Although this category may not be appropriate for standard department managers, Hotel General Managers, high level executives and even highly skilled chefs, including Pastry Chefs in the culinary arts, may qualify. 

                Hotel employees who do not qualify for permanent residence based on one of the above categories, must test the U.S. labor market first with a series of applications made to the U.S. Department of Labor (DOL).  The Program Electronic Review Management, or “PERM” occurs before the Immigrant Petition and requires that employer follow a series of steps to demonstrate that there are no U.S. workers qualified, willing and available to accept the permanent position offered to the foreign national and that wages will not be driven down by hiring foreign workers for lower compensation.  Although on its face it may seem to be a short process, the current processing times trend upwards of 18 months.  Given the arduous and unforgiving journey that is PERM, any small error not anticipated may create headache down the line.   Therefore, it is imperative to partner with a highly experienced immigration attorney to ensure timely completion of this process without error. 

                PERM as a stage truly consists of several mini stages, including two formal applications with the DOL.  When a hotel wants to initiate the PERM process on behalf of a foreign national, it must first identify what its actual minimum requirements are for the position, which can require looking into prior postings, hiring practices and the credentials of employees in the same or similar position.  Once the requirements have been met, and the foreign national beneficiary of the application qualifies for the role through education evaluations and prior experience letters, the Hotel must request a wage determination from the DOL.  Once the DOL issues a wage determination, the hotel then must undergo a minimum 60-day recruitment period where by they test the U.S. labor market.  Assuming the hotel can demonstrate that there are no qualified, willing and available U.S. workers available to assume the role, the Application is filed with DOL (ETA-9089).  Assuming the DOL does not issue an Audit, which can be triggered by the way in which the Application is drafted, or issued randomly, and certifies the Application, the hotel is then ready to move onto stage 2 of the green card process and subsequently onto stage 3 by adjusting status.  As the PERM process is burdensome, timely, and expensive, it is typically reserved for individuals who do not meet the minimum requirements of a Priority Worker petition.  Often times, these can be individuals who are transitioning from temporary visas such as the H-1B, TN, or E.

                Although perhaps less utilized in the hospitality industry, another available option for permanent residence may be a National Interest Waiver (NIW).  Here a person of “exceptional ability” or one holding an advanced degree may request that the job offer, and thus the labor certification or the PERM process outlined above, be waived because it is in the national interest of the United States.  Although endeavors that qualify for an NIW are not defined by regulation or statue, USCIS considers the following factors: (1) whether the proposed endeavor has both substantial merit and national importance; (2) whether the applicant is well positioned to advance the proposed endeavor; and, (3) whether, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus labor certification. 

As mentioned above, hotels often create formal immigration policies as a recruitment tool as well as a way to provide a consistent guideline for implementing the process on behalf of the employee and her/his family.  Inconsistent application of this life-changing benefit can lead to disgruntled workers and loss of travel staff.  A lack of pre-planning through a solid immigration policy can also result in the hotel unwittingly paying for fees and expenses it did not anticipate.  A thorough immigration policy should include “Reimbursement Agreements” to address the employers’ concern that the employee will leave shortly after receiving the green card.

                Considering the complexities of each nonimmigrant category, the pathways to permanent residency and a solid immigration policy to implement it, it is important to consult with knowledgeable and experienced immigration attorneys to develop these strategies. For further questions or assistance, please contact Grzeca Law Group. Remember, this article is intended for information purposes only and does not constitute legal advice.