Mr. Wildes

Hospitality Law

Help from Abroad - Visa Options for the Hospitality Industry

By Michael Wildes, Managing Partner, Wildes and Weinberg PC

An article published in the International Journal of Hospitality Management has declared that "the hospitality industry is facing a major personnel shortage." The authors provide the following advice to hotel and hospitality managers: "demographic changes … suggest that the hospitality industry should reconsider tactics for recruitment and retention."

The authors' advice is nothing new - hotel and hospitality managers have long struggled to find and retain suitable staff. In fact, many hotel recruiters wouldn't be surprised to learn that the aforementioned article wasn't published this year, this decade, or even in this century - but in 1992.

While hotel labor shortages may be well known, they remain a major issue for nearly all businesses in the hospitality and tourism industries. A report by the Orlando Sentinel captures the problem's severity in one concise quote by a hotel recruiter: "there are no housekeepers left in town." A more recent article, this one by the Portland Press Herald, describes the decision of a Maine motel owner to close a 60-room motel. Why? He couldn't find anyone to work there. "The need is great at every level," stated Greg Dugal told the Press Herald in his capacity as the Executive Director of the Maine Innkeepers Association.

Reconsidered Tactics

Since 1992, when the International Journal of Hospitality Management published its labor forecasts, many hotel recruiters have indeed begun to "reconsider tactics for recruitment and retention." These novel tactics have included looking abroad for new sources of labor and hiring foreign workers under short-term work-visa programs. By leveraging such programs, they have tapped into a young, motivated labor force which is eager to get to know America and its tourists.

There are numerous advantages to using foreign staff members, in addition to simply filling unpopular, low-wage positions. From a financial perspective, most foreign workers are exempt from federal payroll taxes. Furthermore, most visa programs used by hotel owners rely heavily on outside recruiters, lessening the employers' administrative burdens related to sourcing and screening workers (more on that later). Finally, these visas entail a relatively quick and easy application process, at least when compared to other immigration categories.

With the steep advantages involved, it behooves all hotel managers to consider hiring from abroad, regardless of size. This article is designed to assist you by exploring the most common visa option used within the hotel and hospitality industry, the J-1.

J-1 Fundamentals

In the United States, it is Human Resources 101 that all workers must demonstrate valid immigration status. For foreign workers, this generally involves proof of a valid visa status which authorizes such employment. By a substantial margin, the most widely-used employment-based visa category used in the hotel and hospitality industry is the J-1 "cultural exchange" visa. As detailed below, this visa category is available for several hotel positions, including those for Interns, Trainees and foreign college students looking for a summer job.

Congress created the J-1 visa to allow for the temporary admission of participants in "cultural exchange programs" in the United States. Developed to combat Soviet propaganda during the Cold War, the visa was intended to provide participates with "knowledge of the political principles which our history and traditions have evolved and of daily life in the United States."

Notwithstanding the J-1 visa's anti-Communist origins, its straightforward application process and minimal eligibility requirements can make it an ideal staffing tool for hotel managers seeking motivated employees, particularly for those hard-to-fill positions falling during peak summer months.

The Chicago Tribune highlighted the J-1 visa's usefulness in a recent article about the foreign workers seasonally employed throughout the hotel industry of Martha's Vineyard. The article describes the fundamental role the J-1 visa plays in hotels' staffing decisions during the peak, summer months. Per the Tribune, large and small hotels in Martha Vineyard's are dependent on J-1 foreign workers to perform a broad spectrum of positions, from housekeepers to wait-staff. The article quotes several students as being deeply grateful for the opportunity to work in the United States. Many also praise the compensation, which, reportedly, is significantly higher than that received in their home countries. One Vineyard employer succinctly summed up the area's relationship to the J-1 program: "we need workers and they want the experience … [it's] a win-win for everyone."

The J-1 Application Process

As previously noted, a primary reason for the J-1 visa's popularity is its streamlined application process. These procedures, thankfully, minimize the employer's expenses and administrative burden. The visa's easy application process flows from the heavy involvement of J-1 "sponsors," organizations which are approved and regulated by the U.S. Department of State to facilitate and maintain J-1 program. J-1 sponsors do much of the heavy-lifting during the visa application process, including recruiting, interviewing, and screening foreign applicants, as well as coordinating with employers. The sponsors will also typically assist J-1 employers with the program's paperwork requirements.

Hotel managers interested in leveraging the J-1 program can easily get started by contacting any of the program sponsors listed on the Department of State website. Prospective employers will be asked to provide information about the intended program and complete a handful of forms.

Nearly all the J-1 programs entail the same basic application process, which can often be completed in only a matter of weeks. This process starts with the employer contacting a J-1 sponsor. After completing the necessary paperwork, the sponsor issues the program participants with the forms necessary to submit his or her J-1 visa application at the nearest U.S. Embassy or Consulate abroad (Canadian citizens are exempt from the visa applicant process and submit their paperwork upon entry at the U.S. border).

Before contacting a J-1 sponsor, hiring managers should familiarize themselves with those J-1 programs most relevant to the hotel and hospitality industry. These include the Summer Work Travel Program, open to foreign college students, and the Intern / Trainee Program for college students and recent graduates. Each Program carries a unique set of employment restrictions and eligibility requirements, as more fully explored below.

J-1 Programs -- Summer Work Travel

The qualifications are simple: any full-time university student at a foreign institution may qualify for a J-1 Summer Work Travel Program. If approved, the visa is valid for up to four months and may not be extended.

Not all jobs will qualify for under the Summer Work Travel regulations. At a minimum, these positions must require "minimal training," and be "temporary" or "seasonal" in nature (basically, during peak seasons). The job also may not involve any licensing requirements, staffing agencies, purchasing of inventory for personal sale, domestic help (such as child care, elder care, gardening, or chauffeuring), operating of a pedicab / rolling chair, driving such that it requires a license, medical care, adult entertainment, night-time shifts, gaming / gambling / betting, pest control, warehousing, online ordering, traveling fairs, and/or involving goods-production.

These restrictions are designed to prevent the exploitation of J-1 visa program participants as sources of cheap, foreign labor. To this end, the regulations also require that all J-1 positions comply with local, state and federal employment laws, including minimum wage requirements.

As another qualification, the work involved during a J-1 Summer Work Travel Program must allow for a degree of "cultural exchange" in line with Congress's intention. As such, employers may only employ J-1 workers for roles allowing them to "work alongside U.S. citizens and interact regulatory with U.S. citizens to experience U.S. culture." Examples of acceptable hotel jobs usually include waiting tables, serving drinks, and/or cleaning rooms, all of which involve interacting with U.S. citizen workers and patrons, to varying degrees, sufficient to foster a "cultural exchange."

J-1 Programs -- Trainees and Interns

Another J-1 visa category widely-used in the hotel and hospitality industry is that falling within the Trainee and Internship Program. In fact, many "name-brand" hotel chains routinely recruit J-1 Trainees and Interns on their websites, including Marriott and Sheraton. Internship Programs may be approved for only up to 12 months. While most Trainee Programs can be approved for up to 18 months, Trainees working in the Hospitality and Tourism industry are limited to only 12 months.

Eligibility requirements differ between trainees and interns. A Trainee is defined as a graduate of a foreign college or university who has one year of on-the-job experience outside the United States, or, in lieu of a degree, five total years of on-the-job experience. To qualify as an Intern, the applicant must be currently enrolled in a college or university abroad or have graduated from such an institution within the last 12 months.

Due to the J-1 visa's purposes towards facilitating cultural exchange, there are several restrictions on the types of acceptable work under a Traineeship or Internship Program. Employers should design these programs such that they "enhance the skills and expertise of exchange visitors in their academic or occupational fields." The J-1 worker's job should expose him or her to "American techniques, methodologies, and technology" through structured and guided activities and on-the-job training. With these goals in mind, the regulations limit the amount of clerical work performed to only 20% of all duties. Furthermore, for programs longer than six months, J-1 employers must rotate their Trainees and Interns between departments and/or functions at least three times.

The job of a J-1 Trainee or Intern must be "related to" the applicant's education and/or experience. In submitting his or her J-1 visa application, the applicant must demonstrate a logical nexus between the U.S. job and the skills gained during his/her education and experience. For jobs in the hotel and hospitality industry, a background in tourism, hospitality and/or hotel management will almost certainly be related to most hotel jobs. This determination becomes much harder for applicants with education in obscure or general degree programs. Given these challenges, it is advisable to consult with knowledge immigration counsel before proceeding.

J-1 Use, Not Abuse

Given its ease and flexibility, it's perhaps not surprising that the J-1 visa program has been marred by a series of widely-circulated accounts of employer abuse. These stories began in 2-2011 with by The New York Times chronicling a walk-out by J-1 participants working at a chocolate manufacturing plant run by The Hershey Company. Per the Times, the J-1 workers claimed that Hershey subjected them to around-the-clock hours in sweatshop-like conditions, among other serious allegations of abuse.

Following an investigation of the Hershey incident, the State Department heavily amended its J-1 regulations to better protect program participants. These changes included new restrictions on the hours worked in Summer Work Travel Programs, as well as improved mechanisms for J-1 visa holders to report abuse by their employers.

Despite these amendments, in 2014 the Southern Poverty Law Center issued a much-cited report alleging ongoing abuses of the J-1 program. The report is filled with anecdotes by program participates of their employers' abuse. Among the complaints are allegations that employers refused to pay or underpaid participants, worked J-1 visa holders in improper jobs, and, in one particularly frightening story, forced students to sleep in horse stables.

Fortunately, these stories stand in contrast to the typical J-1 worker's experience. I speak to numerous J-1 visa holders and their experiences with employers almost always mirror the symbiotic relationship between Martha's Vineyard's hotels and its summer workers as per the Chicago Tribune.

For employers already using J-1 workers, the negative stories should serve as a cautionary tale. If your hotel is already using J-1 workers, you may want to consult with an experienced immigration attorney to ensure you are strict compliance with the regulatory rules. This additional oversight will only become more critical as accounts of employers' abuse become more widespread.

If your hotel is not yet participating in the J-1 program, I draw upon the advice of the International Journal of Hospitality Management*: "don't wait another 25 years to "reconsider tactics for recruitment and retention." An immigration attorney with deep experience in the J-1 space can help you by explaining the J-1 visa's easy application process, employer obligations, and how to make most of the program's many advantages. The hotel labor shortage is not getting any better, so now is the time to reconsider your company's tactics. By drawing on foreign labor pools using the J-1 visa program, you can properly staff your hotel or hospitality business with eager workers, when you need them most.

Adam Moss contributed to this article.

Michael Wildes is the managing partner with the leading immigration law firm of Wildes and Weinberg, P.C. He serves as counsel to several hotel chains; hospitality groups and several international/corporate law firms. He is an adjunct professor at the Benjamin N. Cardozo School of Law in New York and teaches Business Immigration Law. He is a former federal prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). Having represented the United States government in immigration proceedings, Mr. Wildes is a frequent participant on professional panels and commentator on network television and radio with regard to corporate immigration law, employer sanction work and compliance. He has testified on Capitol Hill in connection with anti-terrorism legislation and is internationally renowned for his successful representation of distinguished individuals and corporate clients. Mr. Wildes represents many performing artists, directors, writers, models, actors/actresses, athletes, race car drivers, fine artists, art dealers, curators, and literary agents. His boutique law firm specializes exclusively in the practice of U.S. immigration and nationality law. It was established in 1960 by his father Leon Wildes whose best known accomplishment was his successful representation of John Lennon in his widely publicized deportation proceedings, the circumstances of which have inspired several films, documentaries, and a recent book that Mr. Wildes wrote the Foreword. Mr. Wildes can be contacted at 212-753-3468 or michael@wildeslaw.com Please visit http://www.wildeslaw.com for more information. Extended Bio...

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