H-2B Seasonal Visa Workshop Greater Southwest Chapter CMAA January - - PowerPoint PPT Presentation

H-2B Seasonal Visa Workshop

Greater Southwest Chapter CMAA January 2019

About Pabian Law

• National immigration law firm with focus on private club industry
• 40 employees spread over 4 states (Massachusetts, Florida, Maine, and

Washington)

• Large client base in Arizona!
• Heavily involved with CMAA, National Club Association, HFTP, and their

local chapters

Today’s Agenda

• What is an H-2B visa?
• Why H-2B visas?
• H-2B visa petition process
• Trends and Best Practices
• Other visa and immigration options
• Q&A

Questions for you

• Are you having trouble finding staff?
• Why?
• What are the positions that are the hardest to staff?
• Does your club utilize H-2B visas?
• Does your club utilize J-1 visas?
• Are you busier in the winter or the summer?
• Do you provide employee housing?

What is an H-2B visa?

• Seasonal visa available for up to 10 months
• Based on seasonal need of organization
• One of only visas available to staff a hospitality organization for needed positions
• Apply annually
• Employer sets requirements of position as well as start and end dates
• Can bring employees in from outside USA or transfer from an opposite season
• rganization

H-2B Employer Requirements

• Prevailing Wage
• 35 hour per week minimum
• But ¾ payment rule
• Only housing is allowed to be charged to employee (employer pays all other costs)
• Travel expenses and work-related fees/costs
• Inbound always
• Outbound only if worker returning home AND worked whole season or was fired
• Compliance & retention mandates and U.S. worker notifications

What is not required to be provided by H-2B employers?

• Housing
• You can actually charge up to the fair market value
• Daily transportation
• BUT…

Understanding the ¾ rule

Start

• f

season End of season

Why the H-2B visa?

• You get workers to fill your jobs!
• H-2B visas are helpful for:
• Low unemployment
• J-1 visa and college student problem
• Shoulder seasons
• Professionalism
• Workers when you need them
• Protecting against the unknown of the J-1 visa
• Avoiding cost of recruiters, agencies, and overtime
• Retention
• Foundation of year-round employment options
• Extremely limited visa options for hospitality organizations

Costs

Legal fees:

• If filing one (1) H-2B visa petition in a calendar year with U.S. Citizenship & Immigration Services:
• $4,550.00 USD per petition plus $290.00 USD per person to prepare and file an H-2B visa petition for beneficiaries in the United States at the

time of filing in valid H-2B visa status (visa transfer/extension petitions); and/or

• $4,550.00 USD per petition to prepare and file an H-2B visa petition for beneficiaries outside the United States at the time of filing (consular

petitions). OR

• If filing two (2) or more H-2B visa petitions in a calendar year with U.S. Citizenship & Immigration Services:
• $3,900.00 USD per petition plus $290.00 USD per person to prepare and file an H-2B visa petition for beneficiaries in the United States at the

time of filing in valid H-2B visa status (visa transfer/extension petitions); and/or

• $3,900.00 USD per petition to prepare and file an H-2B visa petition for beneficiaries outside the United States at the time of filing (consular

petitions). Government fees: $2,020.00 USD per petition (includes expedite fee) Overnight mailing fees: $150.00 USD per petition Advertising fees: Differs by newspaper, but about $1,000.00 USD per position (can combine in- and out-of-country petitions as long as same position)

When to start your organization’s H-2B visa petitions

Summer season organizations (April 1st-September 30th start dates) Winter season organizations (October 1st-March 31st start dates) September 15th!!! March 15th!!!

The H-2B Visa Process

Let’s map this out!

Major steps in the H-2B petition process

• Determine jobs to sponsor – 6½ months before start date
• Draft Job Description – 6 months before start date
• Draft & file Prevailing Wage Application – 5-6 months before start date
• Collect seasonality evidence – 5½ months before start date
• Determine total number of H-2B workers needed – 4 months before start date
• File application with U.S. Department of Labor (DOL) – 3 months before start date
• Receive Notice of Acceptance – 2½ months before start date
• H-2B petition recruitment – 2-2½ months before start date
• Final approval from DOL – 1½-2 months before start date
• File with U.S. Citizenship & Immigration Services - 1½-2 months before start date
• If workers in USA, start work on your start date or if out of country, go to U.S. consulate/embassy for visa

issuance and enter USA to work

The H-2B visa petition process

Petition Process (to obtain approval from government to employ H-2B workers) Recruiting of H-B workers

Your role in the process

• Determine H-2B visa needs
• Budget approval/managing your managers
• Review and approve documents
• Seasonality evidence collection
• Find workers

Seasonality evidence needed

• Payroll tables
• Monthly revenue reports
• Other evidence (ex. Monthly covers, monthly occupancy charts, monthly

golf rounds, etc.)

The weird world of H-2B petitions

• H-2B specific Job Descriptions
• H-2B specific Advertisements
• Advertising for jobs that are not really available
• Starting 6½ months before your start date

Hypothetical

What would your organization do?

You are a private club in Scottsdale…

• You are open year-round, with a peak season from January through April
• You are busy, though, from October through end of May
• You can staff locally for most positions, but keep running into high turnover and not enough

workers with your Servers and Line Cooks

• You also have trouble keeping your meals consistent to your standards
• There are several colleges nearby, but your recruiting efforts there have not been fruitful
• Your area of Scottsdale is a bit remote and housing is expensive
• A large management company is in talks about taking over your operations in the next 12

months

• You are dying to work with an immigration lawyer from Boston that keeps showing up at

CMAA events

Questions

• What recruiting options does this club have?
• Is overtime or contract labor worth considering?
• Would you turn to H-2B visas in this scenario?
• How would you deal with housing?
• How would you handle daily transportation?
• What to do about the management company?
• What would change if your club is located in Flagstaff and needs workers for April 15th?

National Trends

What are we seeing nationally?

• More interest in H-2B visas from city and suburban organizations
• Including “smaller” hospitality organizations
• Movement away from J-1 visas (fear of potential changes)
• Breaking news: Filipino workers are now ineligible for H-2B visas
• Trend toward using attorneys for visa processing
• Don’t use agents/recruiters for legal processes!!!
• President Trump’s enforcement measures have led to increased:
• Audits
• Government evidentiary requests
• In-person visits
• Denials of J-1 visas at consulates and embassies
• Year-round visas are becoming harder and harder to obtain for hospitality organizations (green cards are

easier)

• H-2B visas remain the best option now and in the future for seasonal foreign national staffing!

H-2B Visa Cap

• By law, only 66,000 H-2B visas available
• 33,000 from October 1st to March 31st
• 33,000 from April 1st to September 30th
• There is a much, much, much larger demand for H-2B visa for summer-season

employers

• This became a huge issue when Returning Worker Exemption (RWE) was not

renewed 2 years ago

• In-country transfer/extension petitions are exempt from the numerical cap

Should you be concerned about the numerical cap?

• HUGE issue for summer-season
• rganizations
• Winter-season organizations:
• Pre-January 1st start date = you should be

safe from numerical cap concerns

• There are substantially less winter-season

applications

• Summer-season organizations:
• What can you do to solve this problem?

Update on H-2B cap relief

• Gaining traction!
• U.S. Department of Homeland Security supports

cap relief

• Proposed H-2B Visa Increase
• Discussed as part of upcoming Appropriations Bill
• May be voted upon when government

reopens

• No guarantee that this is coming
• If passes:
• Increase number of H-2B visas to 132,000
• Would be available retroactively to October 1st
• Would be divided into quarters on a

proportional basis

• Congress will be required to submit report

every 2 years as to whether to increase or decrease

• Employers will be required to use E-Verify (and

go back to 2012 hires to verify them)

• We still recommend not relying on Congress to fix

this issue!

Solution to cap issues: In-country transfers

• Exchanging employees between northern and southern seasonal organizations
• Saves travel costs – especially in Arizona since state has both seasons!
• Saving recruiter costs
• Finding the right partner
• Dates of season
• What if other organization will not release employees at start of season?
• Qualified employees
• 3 year rule

Arizona-specific trends

• Increased interest in H-2Bs from hotels, resorts, and private clubs
• Popular positions:
• Housekeepers
• F0od & Beverage (including Dishwashers & Bussers/Runners)
• Housing considerations/challenges
• Need to clearly show your seasonality (government is carefully reviewing)
• Careful – outside of Phoenix/Scottsdale, many hospitality organizations have

summer-season needs

Popular H-2B jobs for Southwestern Clubs

• Most common positions:
• Groundskeepers
• Cooks
• Dishwashers
• Servers
• Bussers/Runners
• Housekeepers
• Impossible to staff certain positions
• Big focus on retention (U.S. workers don’t seem to want the jobs)

Why have H-2B visas taken on more prominence in the club industry?

Answer: Risk to J-1 visas

The J-1 visa

• Temporary exchange visitor visa
• Cannot be used for ordinary employment – must have bona fide training and experience

components

• Most common categories for hospitality organizations:
• Interns
• Cannot work in unskilled or casual labor positions or positions that require more than 20 percent clerical/office support

work

• Summer work
• Visa holder must have completed at least one semester of post-secondary academic study
• Program length may not exceed 4 months

Pro’s and con’s of J-1 visas

Pro’s

• Petition goes through a third

party agency – your organization does not need to petition on its

• wn
• Able to staff seasonality for short

periods of time (4 months or less)

• Can be a cost-effective seasonal

staffing option

• Previously less regulations

affecting your organization than H-2B visas

Con’s

• Short duration (4 months or less)
• Inexperienced workers
• Hard to bring back J-1 visas year-

to-year

• Cultural element is very

important

• Must give people an experience
• Getting more and more regulated
• Is summer work & travel going

away?

Potential changes to J-1 visas

Enforcement of J-1 cultural experience requirement

• Do the job duties provide a learning experience

for the visa holder about the United States’ culture?

• Positions such as Housekeepers, Dishwashers,
• etc. could be ineligible
• Taking J-1 visa holders to a baseball game will

no longer be enough

J-1 visa employers be subject to enhanced regulations

• Employers now need to pay for housing,

transportation, wages, etc.

• Minimum hours requirements
• Overall, more time and money would need to

be spent on J-1 visas

• Remember, J-1 visas are usually only available

for a 4 month period

New regulations could be a mix of both of the above.

How should you handle the uncertainty regarding the J-1 visa regulatory changes?

Note: Changes are already underway

Major uptick in embassy/consulate denials for J-1 visas!

Welcome to “V is for Victory! And Visas!”

A Live! Game Show Exploring the Hot Immigration Trends Affecting Arizona’s Hospitality Organizations

First Question

• In what state are your H-2B visa petitions reviewed?
• Extra credit:
• Why does this matter?

Second Question

• What is peakload

seasonality?

• Extra credit:
• How would you

prove peakload seasonality to the government?

Third Question

• Roughly what percentage of petitions over the past year received

government requests for additional documentation and information?

• Extra credit:
• Besides having to do extra work, what is a major consequence of receiving a

government request for additional information?

Fourth Question

• What is a word that stars with the letter “A” and is the result of a

Trump initiative to check on employer compliance when employing foreign nationals?

• Extra credit:
• What is requested in these situations?

Final Question

• Name 2 potential changes

that can come from J-1 visa reform.

• Extra credit:
• How can a southwestern club

protect itself against J-1 visa changes?

And the winner is…

H-2B Best Practices

• Plan ahead
• Start 6½ months before your start date
• Use a lawyer for the petition process
• Written communications/plan regarding inbound travel at start of season
• Housing and daily travel planning
• Communication with department heads and H-2B workers during process
• Do not tailor petition to one employee – do this because you cannot properly staff

a position

• Follow the rules!

The immigration world beyond H-2B visas for hospitality organizations

• J-1 visas
• H-1B visas
• O-1 visas
• Country-specific options
• Green cards (U.S. Lawful Permanent Residency)

Ready, Set, Action! Let’s test your visa knowledge!

Today’s Actors

• 1. Housekeeper from South Africa
• 2. Award-winning Line Cook from Canada
• 3. Dining Room Manager from Jamaica
• 4. Standout Server from Australia who has been your best employee every year for

the past year

• 5. The best Groundskeeper you have ever seen who has been described as the

“Grass Whisperer” for how cleanly and beautifully he maintains the golf course

More about our Housekeeper

• From South Africa
• Your organization has trouble every year finding enough housekeepers to

properly staff your club

• Your organization has a seasonal influx of business but has lodging
• perations year-round

Common U.S. Employment Visas visa and green card options

• 1. H-2B visa – seasonal employment
• 2. O visa – how extraordinary
• 3. H-1B visa – for “professional” employment
• 4. J-1 visa – trainee visa
• 5. B-1 visa – the business visitor (helpful for interviewing)
• 6. TN visa – great option for Canadian and Mexican professionals
• 7. H-1B1 visas (Chile/Singapore) and E-3 visas (Australia) – country specific

More about our Line Cook

• Cook has worked at restaurants and clubs that have won numerous awards

and accolades for their menu and food

• Bachelor’s degree
• From Canada
• Line Cook has two elementary school aged children

Common U.S. Employment Visas visa and green card options

• 1. H-2B visa – seasonal employment
• 2. O visa – how extraordinary
• 3. H-1B visa – for “professional” employment
• 4. J-1 visa – trainee visa
• 5. B-1 visa – the business visitor (helpful for interviewing)
• 6. TN visa – great option for Canadian and Mexican professionals
• 7. H-1B1 visas (Chile/Singapore) and E-3 visas (Australia) – country specific

More about Dining Room Manager

• From Jamaica
• Manages food and beverage functions of your organization
• No prior experience working for your organization or any of its affiliates
• Fourteen years of full-time experience in industry
• No university/college degree
• Your organization has a seasonal influx of business but has food and beverage
• perations year-round

Common U.S. Employment Visas visa and green card options

• 1. H-2B visa – seasonal employment
• 2. O visa – how extraordinary
• 3. H-1B visa – for “professional” employment
• 4. J-1 visa – trainee visa
• 5. B-1 visa – the business visitor (helpful for interviewing)
• 6. TN visa – great option for Canadian and Mexican professionals
• 7. H-1B1 visas (Chile/Singapore) and E-3 visas (Australia) – country specific

More about the Server

• Standout employee
• Employee of the Year at your organization last year
• From Australia
• 12 years of full-time experience
• Your organization has a seasonal need for Servers from October through

June of every year (less need in other months for this role)

Common U.S. Employment Visas visa and green card options

• 1. H-2B visa – seasonal employment
• 2. O visa – how extraordinary
• 3. H-1B visa – for “professional” employment
• 4. J-1 visa – trainee visa
• 5. B-1 visa – the business visitor (helpful for interviewing)
• 6. TN visa – great option for Canadian and Mexican professionals
• 7. H-1B1 visas (Chile/Singapore) and E-3 visas (Australia) – country specific

More about the Groundskeeper

• Best groundskeeper you have ever seen
• Incredible at maintaining and cutting your golf course
• Employee would be impossible to replace

Common U.S. Employment Visas visa and green card options

• 1. H-2B visa – seasonal employment
• 2. O visa – how extraordinary
• 3. H-1B visa – for “professional” employment
• 4. J-1 visa – trainee visa
• 5. B-1 visa – the business visitor (helpful for interviewing)
• 6. TN visa – great option for Canadian and Mexican professionals
• 7. H-1B1 visas (Chile/Singapore) and E-3 visas (Australia) – country specific

Is hiring a foreign national the right decision for your organization?

• Staffing challenges
• Can you find workers?
• Turnover
• What are you paying for contract workers and Overtime?
• Budget approval
• Familiarity of workers to your guests/members once they begin work
• Ability to return for future seasons

Reminder: When to start your organization’s H-2B visa petitions

Summer season organizations (April 1st-September 30th start dates) Winter season organizations (October 1st-March 31st start dates) September 15th!!! March 15th!!!

Questions?

Keith Pabian Pabian Law 40 Speen Street Suite 401 Framingham, MA 01701 (617) 939-9444 keith@pabianlaw.com