HOUSTON — With hotels still finding themselves short-staffed, many management companies are turning to seasonal worker visas, but it’s a complicated process that requires planning ahead.
Ben Snyder and Marisa Rauchway of CSG Law spoke at the Hospitality Law Conference about the H-2B visa application process for foreign seasonal workers and how the hotel franchise model can assist hotel operators.
The foreign workers coming to the U.S. on H-2B visas are typically people who make a career out of it, working six- to nine-month periods, moving from one employer to another, said Snyder, who practices in the law firm's immigration law group. Workers can remain in the U.S. up to three years continuously before having to return home for a three-month-long period until they can come back on another visa. They’re adults who often have families back home that they are supporting. Although the type of work they do while in the U.S. varies, housekeeping and other hospitality jobs are among the most prevalent.
Each year, there are only 66,000 H-2B visas available, and that’s divided into two, six-month-long periods with 33,000 visas issued, he said.
“The key to the H-2B visa program is demonstrating temporary need, so this is not a permanent visa,” he said. “The H-2B visa program is specifically for employers who have a temporary need.”
There are four types of temporary needs, Snyder said. The most common for hospitality employers would be seasonal and peak load. Seasonal means there’s no labor need during the offseason, for example at a ski resort, while peak load means the job still exists but the demand is less during other parts of the year. The less common needs are one-time occurrences and intermittent.
The employment of foreign nationals is one of the most heavily regulated endeavors any U.S. entity can engage in, Snyder said. Companies have to work through three different federal departments as well as state agencies.
The first is the U.S. Department of Labor. If the employer has a start date in the early spring, they’ll need approximately 150 days of lead time for the first round of paperwork. One petition can cover multiple openings in any occupational category per worksite location. Snyder said that means if there’s openings for 100 cooks at one hotel, that would require only one petition. If there’s a need for 10 cooks, 10 servers and 10 housekeepers at one hotel, that would require three separate petitions.
Applicants need to show historical evidence of the labor demand on a monthly basis for a minimum of two years prior, he said. They need to show monthly payroll or labor cost data that demonstrates a recurring fluctuation in the occupational categories.
There are pros and cons for hoteliers operating under the hotel franchise model, said Rauchway, who leads the law firm's franchise team. One of the advantages for franchisees, though, is the ability to draw on their relationships with franchisors to hire seasonal workers.
With all the data and evidence required by government agencies to apply for H-2B visa workers, it can be difficult to wrangle all that information alone, she said. That’s especially difficult for new businesses that don’t have the information required.
“If there isn’t historical data or the like, sometimes it may bar entry into access in this foreign labor market,” Rauchway said. “The franchise industry, particularly if you’re involved in a well-established franchise system with maybe hundreds or thousands of locations, that may be a key to having information to provide evidence that you’ll need to show."
To receive approval from the U.S. Department of Labor, any employer would have to post a job order with the relevant state workforce agency to attempt to recruit from the local domestic labor market first, Snyder said.
The job posting has to provide a job description and include a list of assurances, such as specific rate of pay and specific pay deductions, which can include workplace housing in this instance, he said. There’s also a requirement that for employers seeking workers up to four months to guarantee wages for a minimum of three months. Foreign seasonal workers will pay the cost of getting their own visas and transportation from their home to the worksite, he said. The employer is required to reimburse them those costs.
There’s a requirement that employers reach out to U.S. workers who were laid off at the end of the season the previous year, Snyder said. This is strictly for employees, not contractors through staffing agencies.
The states will also post these job orders on SeasonalJobs.dol.gov, but most of the people who look for jobs on this site are foreign nationals seeking visa sponsorships to come to the U.S., he said. It’s rare to have a U.S. applicant from this site.
This recruitment period takes 15 business days, and for hotels that operate seven days a week, each operating day counts as a business day, Snyder said. The recruitment report for the labor department must indicate how many U.S. applicants the job posting received and the efforts made to contact them. The employer must consider any applicant regardless of whether they’re qualified for the job.
Once an employer receives approval from the labor department, it receives a temporary labor certification, Snyder said. The employer then submits that certification for its application to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services.
The federal fiscal year runs from October through the following September, he said. If an employer’s start date is in the first half of the fiscal year, it’s filing labor certifications in July for October. For the second half, it’s filing in January for April start dates.
The one downside to the H-2B visa program compared to the J-1 visas used for exchange visitor programs is that there is the annual cap on H-2B visas, Snyder said. That means while working through the visa application process, the employer also needs to figure out where it’s going to source its workers from, as the cap is 66,000 visas a year. In January 2023, there were more than 140,000 visas requested, showing how demand far exceeds supply.
“You could go through all this trouble with the department of labor, get your temporary labor certification and still not get any workers because the U.S. government hit the cap for the year,” he said.
While employers relying on bringing in workers from abroad are subject to the cap, there is no cap on transferring visa workers already in the U.S., he said. Employers can time out when seasonal workers are leaving jobs at the end of a season at another worksite to begin working a season for them.
“Those visa workers are not subject to the cap,” he said. “Individual visa workers can do that up to three years in a row, which is another reason why being part of a franchise network is an added benefit.”