H-2B Seasonal Visa Workshop. Greater Southwest Chapter CMAA January 2019

Transcription

1 H-2B Seasonal Visa Workshop Greater Southwest Chapter CMAA January 2019

2 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

3 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 Today s Agenda

4 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?

5 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

6 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

7 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

8 Understanding the ¾ rule End of season Start of season

9 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

10 Costs Legal fees: If filing one (1) H-2B visa petition in a calendar year with U.S. Citizenship & Immigration Services: $4, USD per petition plus $ 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, 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, USD per petition plus $ 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, 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, USD per petition (includes expedite fee) Overnight mailing fees: $ USD per petition Advertising fees: Differs by newspaper, but about $1, USD per position (can combine in- and out-of-country petitions as long as same position)

11 When to start your organization s H-2B visa petitions Summer season organizations (April 1 st -September 30 th start dates) Winter season organizations (October 1 st -March 31 st start dates) September 15 th!!! March 15 th!!!

12 The H-2B Visa Process Let s map this out!

13 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

14 The H-2B visa petition process Petition Process (to obtain approval from government to employ H-2B workers) Recruiting of H-B workers

15 Your role in the process Determine H-2B visa needs Budget approval/managing your managers Review and approve documents Seasonality evidence collection Find workers

16 Seasonality evidence needed Payroll tables Monthly revenue reports Other evidence (ex. Monthly covers, monthly occupancy charts, monthly golf rounds, etc.)

17 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

18 Hypothetical What would your organization do?

19 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

20 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?

21 National Trends

22 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!

23 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

24 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?

25 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!

26 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

27 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

28 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)

29 Why have H-2B visas taken on more prominence in the club industry? Answer: Risk to J-1 visas

30 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

31 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 own 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 yearto-year Cultural element is very important Must give people an experience Getting more and more regulated Is summer work & travel going away?

32 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.

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

34 Note: Changes are already underway Major uptick in embassy/consulate denials for J-1 visas!

35 Welcome to V is for Victory! And Visas! A Live! Game Show Exploring the Hot Immigration Trends Affecting Arizona s Hospitality Organizations

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

37 Second Question What is peakload seasonality? Extra credit: How would you prove peakload seasonality to the government?

38 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?

39 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?

40 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?

41 And the winner is

42 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!

43 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)

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

45 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

46 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 operations year-round

47 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

48 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

49 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

50 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 operations year-round

51 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

52 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)

53 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

54 More about the Groundskeeper Best groundskeeper you have ever seen Incredible at maintaining and cutting your golf course Employee would be impossible to replace

55 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

56 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

57 Reminder: When to start your organization s H-2B visa petitions Summer season organizations (April 1 st -September 30 th start dates) Winter season organizations (October 1 st -March 31 st start dates) September 15 th!!! March 15 th!!!

58 Keith Pabian Pabian Law 40 Speen Street Suite 401 Framingham, MA (617) Questions?