Because the restaurant and hospitality industry relies so heavily on immigrants, and because US workers are in short supply, immigration issues arise often. We will review some of the immigration options for the restaurant industry.
Immigration Options for Chefs.
A chef who has national or international renown may be eligible for the O-1B as an alien of extraordinary ability. Under the O-1B classification, chefs are considered artists. The restaurant would have to define the area of extraordinary ability, for example, as a Pastry Chef, or as a Chef of Japanese cuisine, and prove that the chef has distinction in his or her field. Thus, it is a lower burden of proof than that for the O-1A which requires you to show that the alien is one of a few at the very top of his or her field. So, it is not necessary to be a Yotam Ottolenghi or a Jacques Pepin for an approval as an O-1B. The O-1B is a temporary status, which may be approved for up to three years, and may be extended.
Another option is Chef as an E-2 employee with specialized knowledge or essential skills for a business owned by a majority of E-2 treaty nationals of the same country. The country of citizenship must have a treaty with the U.S. providing for E-2 treaty investor status. For example, if a restaurant is owned by three Canadian citizens, the restaurant may sponsor a chef who is a Canadian citizen to come and work in the US restaurant. As long as the owners are not also lawful permanent residents or U.S. citizens, this will work. It does not matter if the owners are also dual citizens of another, third country. So, for example, if one owner is a dual citizen of both Canada and Albania, the second owner is a Canadian/Italian citizen and the third is a Canadian/Colombian citizen, the restaurant will still qualify for E-2 treaty investor status through the joint Canadian citizenship. The beneficiary employee must also have Canadian citizenship. The E-2 is temporary, may be approved for two years, and is renewable.
Because the options to come in temporary status are limited, the restaurant may also sponsor a chef directly for the green card, even though the beneficiary chef does not currently work for the restaurant and is not in the U.S. Thus, the restaurant may go through the labor certification process, get an approved I-140 and then have the beneficiary come from abroad through immigrant visa processing to work for the restaurant as a chef.
Owner and Manager starting a business in the U.S.
Owners/managers who wish to start a restaurant business in the U.S., if they are from a country with a bilateral trade agreement with the U.S., may also come to the U.S. as an E-2 treaty investor, if they are coming to develop and direct a company which is a restaurant. They must have a five-year business plan and schedule to increase their hiring of U.S. workers.
For a company that has a very large chain of restaurants, a manager who has worked outside of the U.S. for at least one year for the company, and who is transferred to the U.S. to start a new business/restaurant or manage an existing business/restaurant, it may be possible to obtain an L-1A as a managerial or executive transferee. If it is to open a new business, the L-1A will be approved for only one year. An L-1A for an already existing business may be approved for up to three years, and is renewable for a total of seven years.
Culinary Interns or Trainees
The restaurant may also be able to obtain J-1 Culinary Trainees or Interns for 12 to 18 months. The J-1 intern will be able to work for no more than one year, and must be enrolled in a university or post-secondary program outside the U.S., or have graduated within the past 12 months. Thus, these are young people between the ages of 18 and 25 who are fresh out of school. The J-1 trainee would be able to work for up to one year and a half, and must already have a post-secondary degree outside the U.S., and at least one year of experience in his or her field. This is a good way to temporarily employ enthusiastic young people with a degree in culinary arts or in hotel or restaurant administration. The restaurant/employer would not be the actual sponsor, there are particular J-1 agencies or organizations which are the actual “sponsor”, and the J-1 trainee or intern is placed with a particular employer. The J-1 is not available for unskilled positions.
Hotel Manager TN
A TN as a Hotel Manager, Food and Beverage Dept, may also be possible if a restaurant is an integral part of a hotel, and the candidate is a Canadian or Mexican citizen and has a baccalaureate or licenciatura degree in Hotel or Restaurant Management or Administration, or a Post-Secondary diploma or certificate in Hotel/Restaurant Management and three years experience in Hotel/Restaurant Management.
Temporary or seasonal workers
Restaurants may also be able to obtain temporary or seasonal workers on the H-2B, for positions that are truly seasonal or temporary. For example, many restaurants and hotels have a certain season where they make the most money and have the most customers. During their peak season, they desperately need many additional hands, waiters and so forth. However, after a few months and the season ends, there is no longer work available and these employees are laid off.
Employers have to first file a labor certification showing they could not find U.S. workers qualified, willing and able to perform the job at the prevailing wage for that particular occupation in that geographic location. The employer would have to run a two-day print ad, including one Sunday, in a newspaper of general circulation. Once the labor certification is approved, the employer would then be able to file an H-2B petition with USCIS. These cases are problematic because of the shortage of visa numbers, and also due to timing and processing constraints, as the windows to get a prevailing wage, then advertise, then get the approved labor certification from Dept of Labor and then file with USCIS before the visa numbers run out and in time before the season starts.
It may make sense to apply directly for the green card
If a restaurant has an ongoing problem obtaining qualified, competent and reliable workers, it may make more sense to go through the labor certification process and apply directly for the green card. Because of the short-term nature of the above temporary statuses, and because of increased time and effort in the visa process, a restaurant may do better to investing its time and effort in bringing future employees to the U.S. as permanent residents.
Most cases would involve obtaining a prevailing wage determination from the US Dept of Labor, then advertising the job, running at least two Sunday print advertisements in a newspaper of general circulation, placing a 30-day job posting with the state dept of labor, and a notice in the work place for at least two weeks. Professional positions requiring a bachelor’s degree would require at least three additional forms of recruitment. The restaurant would have to interview any candidates who appeared as if they might be qualified for the job, and have job-related reasons for rejecting any U.S. workers. After all recruitment is performed, the restaurant then files the PERM labor certification with U.S. Dept of Labor.
Once the restaurant receives an approved PERM labor certification, the restaurant may file an I-140 for an immigrant preference visa. Once the I-140 is approved, the beneficiary may go for immigrant visa processing and come to the U.S. as a permanent resident. Or, if the beneficiary is already here in the U.S. in legal status, he or she may apply for adjustment to permanent residency.
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