Enhance Workplace Diversity Through Comprehensive Exploration of Visa Options for Your Workforce

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

This article was co-authored by Celeste Salas, Legal Assistant, Grzeca Law Group, and Reese Eckenrod-Snyder, Legal Assistant, Grzeca Law Group and was published in Hotel Executive, April 2024.

Have you ever received a resume for an international candidate that checks all the boxes but you're not sure what to do about a work visa? The hospitality industry has relied heavily on a diverse workforce to meet its demands.

An important part of this workforce includes foreign employees who bring unique skills and an international perspective. They occupy various roles, including culinary specialists, front office staff, restaurant managers, engineers, and other managerial positions. Wading into the world of procuring work visas can seem daunting if you are not versed in the options and timing of the process. With a few basic concepts, we can get you on your way. Different roles and different nationalities often require different work visas.

However, there are limited employment-based U.S. work visa options. Generally speaking, the available options are the TN, E-2, E-3, L-1, H-1B and H-2B. The first three (TN, E-2 and E-3) are all nationality based, meaning that the nationality of the candidate must match the visa category. The L-1 visa is for intracompany transfers, while the H visa is "open market" work (not tied to a particular company), and neither are restricted by nationality. Many Talent & Culture offices find it difficult to assess which U.S. work visa option may be best suitable for desired candidates even when they understand these basic rules.

Let's talk about some recurring examples.

TN Classification

Perhaps your Talent & Culture office receives resumes for two individuals who happen to be married: Mia and Sebastian. These individuals are applying for your Director of Food & Beverage and Director of Rooms roles respectively and have the credentials you are seeking. Both Mia and Sebastian are multilingual Canadian citizens with over 10 years of experience in the hospitality industry. While Sebastian does not possess any post-secondary education, Mia was awarded a Bachelor's Degree in International Hospitality Management. How do you assess which visa options apply to these two individuals?

Without doubt, Mia qualifies for the TN classification. The TN classification is only available to Canadian and Mexican citizens due to its status in the United States-Mexico-Canada Agreement (USMCA), formerly the North American Free Trade Agreement (NAFTA). To qualify, the position must fall under one of 63 designated categories, one of which is "Hotel Manager." The Hotel Manager category requires that the candidate possess a Bachelor's degree in Hotel and Restaurant Management; or a 2-year post-secondary diploma in Hotel and Restaurant Management and three years of experience in hotel and restaurant management. Given that Mia is a Canadian citizen and possesses a Bachelor's degree in the proper field study, she qualifies for the TN classification as the Director of Food and Beverage.

TD Classification

But what about her husband Sebastian? You might ask yourself; can Sebastian enter the U.S. as a dependent of the principal applicant and still work? Dependents of a TN holder receive the TD classification. However, those who hold TD classification are not authorized to work in the United States. Therefore, Sebastian will need to pursue his own independent work visa as well.

L-1 Classification

Sebastian's resume indicates that he previously served as Director of Rooms for a sister company abroad for two years prior to his most recent employment. You have heard from other Talent & Culture offices that your company has a "blanket petition." In this instance, Sebastian may qualify for the L-1 intracompany transfer visa. This classification is preferred by international companies as it allows them to transfer employees from a foreign office/hotel to a U.S. office/hotel. The Blanket L petition is a process allowing large multinational companies to quickly transfer employees in L-1 status.

The hotel management company files a petition with U.S. Citizenship and Immigration Services (USCIS) requesting "blanket" pre-approval that its specified foreign hotels have a qualifying relationship. Once USCIS approves the corporate Blanket L petition, hotels can have transferring employees apply for an L-1 visa directly at a U.S. Consulate or Embassy abroad. A Blanket L petition speeds up the process of transferring employees from foreign affiliates, from several months to a matter of days or weeks as the Blanket L approval eliminates the need to file separate petitions with USCIS for each transferred employee.

Given that the company has the Blanket L approval and Sebastian served in a managerial position for two years abroad within the same company at a hotel listed in the Blanket L approval, he could apply for the L-1A (managerial) classification. As a Canadian citizen, he can apply directly at the port of entry when flying or driving to the United States.

L-2S Classification

At this point, you resolved your dilemma for both candidates, but you bring this to management for approval and you are informed that at this time they are only willing to pay all expenses for an L-1 visa for one of the two individuals. How can you overcome this if the TD classification does not allow for work authorization and you are unable to sponsor both the TN for Mia and the L-1A for Sebastian? Fortunately, unlike the TN classification, the L-1A classification allows spouses to work "incident to status."

In this situation, the hotel would apply to bring Sebastian to the United States in on L-1A classification and his spouse, Mia, under L-2S classification and both would receive appropriate work authorization. This would be the best-case scenario as it eliminates the need to file an additional application on Mia's behalf as she would be tied to Sebastian's L-1A classification. Now, you have successfully filled both positions and saved the company half of the expense that it would typically cost to file two visa petitions!

However, in most visa cases, Talent & Culture is not "gifted" a 2-for-1 scenario. What if Sebastian did not have the qualifying one-year of experience with the company abroad and therefore, was unable to apply for the L-1A classification? He would still not be able to apply for the TN classification given his lack of degree and he would not be able to be tied to Mia's TN classification given that the TD classification does not allow for work authorization. In a "worst-case" scenario, what if Mia was not a Canadian citizen and was unable to apply for the TN classification?

E-3 Classification

Let's run through this "worst-case" scenario with some slightly different facts. If Mia had Australian citizenship instead of Canadian citizenship, she may be able to qualify for the E-3 classification. Similar to H-1Bs, the E-3 classification is for "specialty occupation" positions, which are those that typically require a bachelor's degree as a minimum requirement for entry into the field. In addition, the employee must possess the equivalent of a U.S. bachelor's degree in the specialty field. The E-3 classification is only for Australian nationals to work temporarily in specialty occupations in the United States. Given that Mia has the Bachelor's degree and Australian citizenship, she may be able to apply for this classification so long as the position offered to her is considered a "specialty occupation." In this scenario, Mia would be able to work for the company under E-3 classification.

E-3S Classification

What options are left for Sebastian? Even if Sebastian did not have the qualifications required to apply for the L-1A classification, if Mia qualifies for the E-3 classification, she would be able to bring Sebastian under E-3S status. Similar to the L-2S classification, an individual who is issued E-3S classification is able to work incident to status.

E-2 Classification

Maybe you have heard of the E-3 classification, but have you heard of an E-2 classification? The E-2 classification is also a nationality-based classification, but it is not tied to a singular nationality like the E-3 classification or TN classification. E-2 visa holders share the same nationality as the nationality of company's ownership. That country in which nationality is held must also have a treaty of commerce with the United States. This classification affords work authorization to Executive, Management and Essential skills employees who hold the same nationality as the business.

In larger businesses, management and executive level employees may be sent to the United States instead of the owners of the business. This means that both Mia and Sebastian would be able to apply for the positions of Director of Food & Beverage and Director of Rooms respectively under E-2 classification so long as they hold the same nationality as the business. The other great thing about the E-2 is that spouses of E-2 holders in valid E-2S status are considered employment authorized incident to status.

H-1B Classification

Imagine another common scenario, Michael, a Chinese student and one of your Assistant Talent & Culture Managers who is working at the property temporarily on a Student visa after he graduated from college, and who has excelled during his brief time at your property, comes into your office and asks if the company would be willing to help him remain the U.S. and continue working for the company. Often this is a difficult conversation, as navigating the complexities of extending a student's stay can be complicated and cumbersome. For a detailed discussion on retaining Trainee (J-1) and Student (F-1) workers, please see our previous article on the topic: How to Retain Your Foreign National Trainees After You Have Invested in Them

H-2B Classification

A final scenario involves the H-2B program, which addresses the need for low-skilled workers. As peak occupancy seasons approach, it can be difficult to fill all available positions. Though this option requires a larger commitment than most other options, it allows you to bring in a higher number of workers than any other option. Unlike any other visa, one application can be used for more than one worker. The H-2B classification is a powerful tool to staff dozens of positions on property during your peak season.

Some common hospitality positions filled by H-2B workers include Room Attendants, Stewards, and Line Cooks. These entry level positions are often hard to fill or have high turnover, making H-2B workers a welcome, temporary, addition to any workforce. For a detailed discussion on H-2B workers, please see our previous article on the topic: Staff Shortages: Have You Considered An H-2B Visa Program?

While navigating the American immigration system can be challenging due to its complex and shifting policies, understanding the basics and familiarizing yourself with the available visa options may make the interview processes easier for you and your recruitment teams. Whether you are looking for a new General Manager, Director of Revenue Management, Executive Chef, Outlet Manager, Reservations Analyst, or any other position, if the job role and visa type remain consistent, you are one step ahead of your competitors when it comes to securing the next generation of talent.