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 organization
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 End of of season 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 Winter season organizations (April 1 st -September 30 th start dates) (October 1 st -March 31 st start dates) September 15 th !!! March 15 th !!!
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 15 th ?
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 1 st to March 31 st • 33,000 from April 1 st to September 30 th • 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 organizations • Winter-season organizations: • Pre-January 1 st 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 1 st • 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
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