WELCOME AND INTRODUCTION

Industry Highlights• The Hospitality Industry is facing a serious labor shortage,

and it is being felt in every major city across the Unites States. These positions cannot be automated or outsourced.

• The restaurant and food service industry employs 13 million people with annual restaurant sales reaching more than half a trillion dollars.

• The Bureau of Labor Statistics predicts a 16.4% growth rate in hospitality jobs requiring close to 500,000 additional employees reaching over 2.1 million by 2014. The restaurant and food service workforce is expected to grow 15% or approximately 2 million jobs.

• 1.6 million restaurant employees are immigrants and other foreign- born individuals.

• Immigrant worker population in entry-level positions at US hotels and restaurants is 80 percent.

Industry Highlights

• The number of available jobs in the Industry is projected to increase, yet the labor force ready to fill the jobs is projected to decrease.

• Employees are going to be hopping from one job to another and from one industry to another as never before. They will not be as efficient and effective as their predecessors were.

• Our workforce is an aging one. Many jobs are labor intensive and physically demanding. Many of these jobs are not appealing to American workers.

Immigration, legal or otherwise, has a huge impact on the Hospitality industry. In order to succeed in the current market, HR professionals and other industry leaders need to understand and keep up with current immigration developments.

“Immigration is not the only answer, but it is a critical one for the hospitality

industry” - Ms. Carol Rossi, CHRE, Director of Human Resources, Harrisburg Hotel Corporation. Testimony before the US Senate Committee on Immigration Reform

Basic Considerations

• Why should you hire foreign workers?• How to hire and recruit foreign talent?• Identifying Immigration issues prior to hire• Company Policies and Practices• Managing Cases and Costs

Identifying Immigration issues prior to hire

• What is the best visa option?• What can an employer ask? – Be consistent• Can employers refuse to sponsor for visas?

Hotel Policies and Practices

• Options for companies in sponsoring foreign workers – many visas to choose from

• Options in paying for costs and services• Recovery of company expenses• Managing cases and costs• Items for hiring managers and HR personnel• Internal filing system and tracking deadlines• Company involvement – create in house

immigration policy assign staff

Temporary Visa options for Chefs, Cooks and other

Hospitality workers

H2-B Visa for temporary and seasonal employees – “The

Hospitality Visa”

The H-2B visa category fills employers’ needs for seasonal or other short term employment that cannot be filled by available U.S. workers. Cooks, certain chefs, housekeeping staff, waiters can all qualify under this category. The employment must be temporary and arise in one of three categories:

H2-B Visa for temporary and seasonal employees (cont’d)

• One-time occurrences: It must be established that the U.S. employer has not employed workers to perform the services or labor in the past and will not need the workers to perform the services or labor in the future;

• Recurring seasonal jobs: It must be established that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature (i.e. ski instructor);

• Peakload need: It must be established that the U.S. employer regularly employs permanent workers to perform the services or labor at the place of employment, that it needs to supplement its permanent staff due to a seasonal or short-term demand.

H2-B Visa for temporary and seasonal employees (cont’d)

• Validity Period• H2B Cap

– Workers Subject– Workers not subject

• Application process• Time line and key dates to remember –

Employers must plan ahead

J1 Trainees: Overview

• Summer Work and Travel• Professional Trainees

H3 Trainees – An Alternative? • Training not available in home country• Only incidental productive employment allowed• Not in position of regular employment• Syllabus/Itinerary required• Classroom training• No Numerical Limitations on Visas

H3 Trainees – An Alternative?

• J1 Visas can be Converted to H3• Duration up to 22 months• Must show the Benefit to the Hotel?• Training must be specific to the Hotel• Several Trainees Can be included in a filing• Low filing fees • Quick turnaround

H-1B Visas for management level Chefs and management

employees• Specialty Occupation - Hotel General Managers,

Accountants, Systems Analysts, Food Service Managers are common specialty occupations

• Validity period• H1-B Cap

– Cases subject– Cases not subject

• H1-B Portability• Dual Intent• H1B1 Singapore and Chile – Success with Chef

cases!!

TN Visas for Hotel Managers – My favorite!!

• 65 professional Classifications• Validity period• Canadians – File at the Border• Mexicans – File at US Embassy or Consulate• No “Dual Intent”

O-1s for outstanding chefs and distinguished managers

• Work visa available to those foreign nationals who have "extraordinary ability in the sciences, arts, education, business or athletics"

• Sustained national or international acclaim• Validity Period• Flexible with the Arts – Chefs qualify

L-1 – Intra-company Transfer Visas

• L1A Managers and Executives of companies, Hotels with foreign subsidiary or affiliate

• L1B Specialized Knowledge employees• Validity period• Canadians can file at the border• L2 are work authorized

E-2 visas for owners, executives, managers and specialized

employees of foreign-owned hotels and restaurants

• Treaty must exist• Nationality of the Company• Validity• Substantial active investment• Restaurant owners, executives, supervisors

can qualify• Spouse work authorized

Temporary work visas – Miscellaneous

• Premium Processing• Consular Notification• Extension of Status• Change of Status• Amended Petition

Permanent Residency (Green Card) options for Chefs, Cooks and other Hospitality workers

How can a Foreign National Obtain Permanent Residency?3 steps

1. Labor Certification – PERM2. I-140 Immigrant Petition for Alien Worker3. I-485 Application for Adjustment of Status

Employer Sanctions

• Civil Penalties• Employing unauthorized workers• Paperwork Violations• Criminal Penalties• California Chinese Restaurants Raids – 2011• SSA No match Rule• Future developments – increased

enforcement

I-9 COMPLIANCE AND WORKSITE

ENFORCEMENT

Employer’s Responsibilities under IRCA

• Background on Form I-9: IRCA• I-9 Forms: Who Needs to Complete• Documents needed for I-9: List A – Establishes both identity and

employment eligibility or List B (establishing identity) and List C

(establishing employment eligibility)

Employer’s Responsibilities under IRCA (continued)

• Documents that Reasonably Appear Genuine

• Retention of I-9 Forms• Effects of Corporate Reorganization

Worksite Enforcement and Sanctions

• Statistics

Worksite Enforcement and Sanctions

• Civil Penalties• Criminal Penalties• Personal Liability• Private Lawsuits• Reinstatement and Back Pay

Employer-Prohibited Conduct under the INA

• Citizenship or immigration status discrimination (4 or more employees)

• National origin discrimination (more than 3 and fewer than 15 employees)

• Unfair documentary practices related to verifying the employment eligibility of employees

• Retaliation

How to Avoid Immigration-Related Employment Discrimination

• What Constitutes Discriminatory Hiring Practices

• Document Abuse• Verification and Re-verification• Special Rules for Asylees and Refugees

Compliance with I-9 Regulations

• Handbook for Employers for the purposes of Form I-9

• I-9 Verification Software• Setting up Effective Compliance System• I-9 Training and Good Faith Defense• Periodic Internal Audits• Legal Assistance

Q & A

Jacob J. Sapochnick, Esq.Kate Powell, Esq.619-819-9204jacob@h1b.biz ; katep@h1b.biz