Mr. Wildes

Hospitality Law

Sponsoring an Employee for a Green Card

By Michael Wildes, Partner , Wildes & Weinberg

While every industry has been affected in some way by the global financial crisis, that holds particularly true for the Hospitality industry. With the erosion of revenue and profitability in the Hotel sector, many hoteliers are searching for top talent to implement their innovative business strategies. They have realized that hiring and retaining the right employee is a critical way to stay competitive in a recovering economy. For many modern hoteliers, nothing is more valuable than finding the right person to stick around long enough to learn how to adapt in periods of prosperity and decline.

Sometimes, despite a considerable investment of time and resources, an hotelier isn’t able to find an American worker to fill the position. In that event, hoteliers are not limited to the pool of US workers who do not meet the minimum requirements for the job; they may consider hiring a foreign national. One way to do this is by sponsoring a foreign national for permanent residence through a process called Labor Certification. Once an hotelier is able to obtain Labor Certification, she may sponsor a foreign national for permanent residence; this means the right person for the job will become eligible for a green card.

First and foremost, because of the great benefits of legal permanent residence, which are granted to beneficiaries of the Labor Certification process, a Labor Certification is not easy to obtain. In fact, it’s probably one of the toughest means of achieving an employment-based immigration benefit. Second, Labor Certification doesn’t really have anything to do with immigration. How is that? Well, Labor Certification is an invention of the United States Department of Labor in response to an immigration requirement that requires the Secretary of Labor to certify that before a worker can enter the U.S., it must first be shown that there are no able, willing, qualified or available U.S. workers to fill the prospective job opening. The U.S. agency has implemented this meticulous scheme, in large part, to protect jobs for U.S. workers. Therefore, before offering a foreign national a job that may result in permanent residency, an employer hotelier must stop and check with the Department of Labor to make sure that it is OK.

In its application for Labor Certification, the Department of Labor (DOL) requires an employer to prove that there is no minimally qualified U.S. worker available to fill the position. The application is submitted online through a system called PERM (Program Electronic Review Management), a process which consists of several steps. First, the employer must identify the duties and requirements of the job. This step seems simple enough, but it isn’t. It takes skill and knowledge of the system to draft a description of duties and requirements that will pass muster with the Department of Labor. Next, the employer must request something called a “prevailing wage determination.” The Department of Labor will respond with a number. That number represents the minimum salary the foreign national must be compensated, based on the level of knowledge and experience required for the job. Hoteliers must then indicate on their applications that they will pay at least that much to whoever is hired for the job. The purpose of a wage determination, after all, is to protect U.S. workers from domestic companies who might seek out foreign nationals to work for less. The prevailing wage determination ensures that whoever fills the position will be paid at least the average wage paid to a similarly employed U.S. worker.

Once the employer receives the prevailing wage determination, she may proceed to the recruitment phase of the Labor Certification process. Incidentally, timing is everything in the Labor Certification process. There are many steps that must be completed within a certain time frame, and the completion of certain steps trigger the initiation of others. Getting the timing right is one of the reasons Labor Certification can be incredibly challenging for employers who are unfamiliar with the process.

The recruitment phase requires the employer to advertise the job in a major daily newspaper of general circulation in the area of employment for two Sundays. Any attempt to advertise in a little-known newspaper will require the employer to go back and do it over. In addition, a 30-day job order must be listed with the State Workforce Agency (SWA) of the DOL, in the State where the job is located. This is yet another attempt by the DOL to ensure that the employer makes an effort of hire a US worker before certifying a foreign national for the position.

The Department of Labor will mandate more recruitment requirements if the job is deemed a “professional occupation.” A professional occupation is defined by the Labor Department as one of the occupations listed in their regulations as meeting the standard they refer to as “professional.” It doesn’t matter if the employer’s requirements are minimal; the presence of the occupational category on their list is sufficient to require additional recruitment. If the job is deemed a professional occupation, then the employer will need to proceed with three more recruitment steps; anything from attending job fairs, to on-campus recruiting; to broadcasting radio and television advertisements, etc.. Next, the employer must post a notice at the job site to be viewed by employees and visitors alike listing the job specs and salary offered.

After the aforementioned recruitment and notice steps have been completed, the hotelier must produce a recruitment report to summarize her recruitment efforts and the results achieved. A copy of the report, along with all of the recruitment evidence, must be maintained. In case of an audit by the Labor Department, this evidence must be produced.

An audit is to the Labor Certification process what a broken leg is to a marathon runner. Audits really slow things down. A Certification Officer may flag an application for audit for any reason. An application can be audited to challenge the minimum educational and experiential requirements set by employers, or it may be audited randomly, for no reason at all. Regardless, the employer will have 30 days to respond to the audit letter with the supporting documentation requested. Right now, the Labor Certification process generally takes between two and ten months for un-audited applications. When an application gets audited, it can take up to two years to process.

Once all the recruitment has been completed, an hotelier may apply online by filling out the online application through the PERM system. There are some people who may wish to try this at home without legal counsel, but a PERM application must be totally, completely, unequivocally perfect in every way. There is no chance to amend or erase a mistake once it has been submitted. If the application contains even a minor error, it can be denied. If, however, all goes well, and all the information is accurate and clearly stated, the employer should receive a Labor Certification from the Department of Labor, which is tantamount to permission granted by the Department of Labor to reach beyond the U.S. workforce to satisfy labor needs. It also communicates to the U.S. Customs and Immigration Services (USCIS) that the employer has met the Department of Labor’s guidelines with respect to the conditions of labor for that particular job. Once the Labor Certification has been granted, the employer may, along with the employee beneficiary, submit the paperwork for a green card.

Every year, there are a minimum of 140,000 employment-based immigrant visas, a.k.a., green cards, made available for those who can get to them; first come, first served. The number of available immigrant visas is divided into five preference categories. The visa category most relevant to an hotelier is entitled the EB-3 visa, also known as the Employment Third Preference visa category. The EB-3 is perfect for the hotelier seeking top talent because it allows for a wide variety of skill sets, experience, and educational training by which to classify the right person for the job. Whether hiring a concierge, a decorator, or an executive hotel manager, the EB-3 will cover it.

There are four main players in the EB-3 visa application process: USCIS, the employer sponsor, the employee beneficiary, and the Department of State. The hotelier sponsor must communicate to USCIS that she has made an offer of permanent employment. This means the hotelier is not simply contracting the employee for a year or two; it means the hotelier is expressing the intent to hire the foreign national indefinitely - for the long haul – by filing an Immigrant Visa Petition. In the petition, the hotelier must describe the job offered and must demonstrate an ability to pay the prevailing wage. USCIS will examine the petition and supporting evidence, and if all seems legit, USCIS will classify the beneficiary in a green card category.

Once a beneficiary has been approved for a green card, she must go to collect it. Foreign nationals may apply to adjust status with USCIS here in the U.S. or go the American consulate in their home country. Remember, however, that there are only 140,000 green cards set aside each year for the five visa categories of which EB-3 is only one. Then, the EB-3 category is further broken down into equal “per country” limits, meaning that each country is given an equal percentage of visas from the available visa quota for the EB-3 category. This means that even when you are approved for a green card, it may be a while before one is collected.

To deal with what has become a green card backlog, the Department of State has created a published visa waiting list called the Visa Bulletin. All prospective green card holders are organized on the Visa Bulletin based on their preference category and something called a priority date. The priority date for purposes of the EB-3 category is the same date the Labor Certification application was filed with the Department of Labor. When checking the Visa Bulletin, the most important number is the cut-off date. If the priority date of an individual is earlier than the cut-off date listed, that means the beneficiary is current, which means a green card application can be filed and adjudicated. The beneficiary must be current and then wait until the application is readied for visa issuance.

All in all, a most complex and cumbersome process, but well worth the effort.

Michael Wildes is the Mayor of Englewood, NJ, an immigration lawyer and a former federal prosecutor. As partner of preeminent immigration law firm Wildes & Weinberg, Wildes has become internationally renowned for having represented the United States Government in immigration proceedings, for the successful representation of several defectors who have provided hard-to-obtain national security information to the United States and, most recently, for obtaining an injunction to prevent Libyan leader Muammar Gaddafi from residing in New Jersey during the 2009 UN Summit. Mr. Wildes can be contacted at 212-753-3468 or mwildes@wildesweinberg.com Extended Bio...

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