Relaxed visa restrictions let operators get to work recruiting employees globally

Last fall the U.S. Congress passed a new law Bill S. 2041, which nearly doubled the number of H-1B visas -- work permits -- that will be issued each year over the next three years. Those changes will allow more than 195,000 people from other countries to come and work in the United States. That is a substantial increase over the total of 65,000 visas allowed as recently as 1998.

As an owner of two hotels with restaurants, in addition to my longstanding immigration practice, I have seen the same staffing difficulties as the rest of the hospitality industry in the past few years. Given the difficulty in employee hiring and retention, the time has come to take a deeper look into some of the changes in U.S. immigration law. Those changes vastly increase your hiring pool because your human resources department now can prospect globally, rather than just nationally. There are several ways you can take advantage of those sweeping changes to assist with filling hard-to-fill positions.

The H-1B visa commonly is referred to as a "Non-Immigrant Visa" and permits employment with a sponsoring employer. Your restaurant may apply for an H-1B visa to hire an employee to fill a "specialty occupation." Positions such as manager, controller, head chef and accountant generally are considered specialty occupations. Since that is the case, you may quickly fill vacancies in those positions with a non-U.S. applicant.

As with any U.S. government program, some basic rules must be followed. First, your applicant needs to have a college degree, bachelor's or higher, in an area related to the position or at least five years of progressive experience in the occupation. You, as the employer, must offer compensation equal to at least 95 percent of the prevailing wage rate, or PWR. That PWR may be determined by referring to wage surveys, including those by the U.S. Department of Labor. The visa can be held for up to six years, which is plenty of time to convert status to a green card.

Timing of the application also is important. If your applicant held an H-1B visa in the past and is in the United States at the time of applying for the H-1B visa to work with your restaurant, he or she can begin work as soon as the application is filed. If your applicant never had an H-1B visa, it will take two to four months, depending on the location of employment.

Applying for an H-1B visa is a very interesting process, because several other considerations come into play. First, the employee may work only with the sponsoring employer on the H-1B visa. Second, an application for a green card can be made at any time. Third, an application can be made for any qualifying person. Fourth, Congress effectively doubled the visa allocations for the next three years, eliminating the "'cap-ou"" fears of the past few years. Those four items taken as a whole makime the H-lB process an excellent way for you to hire and retain loyal employees.

In all nonimmigrant categories, the applicant's family members -- spouse and unmarried children younger than 21--also may obtain visas to live in the United States. Such visas are referred to as "accompanying visas." Although employment for accompanying family members is not permitted, everything else is allowed, including the ability to attend both public and private schools. A spouse can obtain a separate work visa if he or-she qualifies for one apart from his or her spouse.

Most employers who go through the process find it easier than expected even though regulations and procedures may seem challenging at first. Using currently available immigration avenues can be a great way of attracting highly qualified and motivated employees from a worldwide talent pool. Those avenues even can be helpful in bringing qualified relatives who currently do not live in the United States here as well.

Once that source of talent is discovered, employers that can effectively use those laws to their advantage tend to hire non-U.S. workers frequently to ill positions that hey cannot fill with qualified U.S. persons. In this time of intense labor shortage in the restaurant industry, restaurateurs should consider the worldwide talent pool for their hiring needs.

Robert Lubin is an immigration lawyer specializing in the immigration of business professionals for clients nationwide. A member of the bars of the District of Columbia, Virginia, Maryland and Arizona, he has been in practice since 1983 and founded his Washington-based firm, Robert Lubin and Associates, PC., in 1988. He has been a Holiday Inn licensee since 1992. He can be reached at RobertLubin@rlapc.com.

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