Changes make H-2B visa program more challenging for hotels

Editor’s note: This is the first installment of a two-part series about staffing challenges facing the U.S. hotel industry. To read “Unemployment rate not helping hotels fill positions,” click here.

REPORT FROM THE U.S.—The H-2B visa program was never a cure-all for the hospitality industry’s staffing woes, but recent changes have made it practically unusable for a large section of the industry. Additional modifications some members of Congress are pushing for could increase the program’s cost and complexity even more.

To make the employment issue even more dire, there is expected to be a shortage of workers for the foreseeable future, even with the high rate of unemployment in the United States.

“The program is constantly changing and constantly becoming more onerous and hard to follow,” said Paul Monte, general manager and CEO of Gurney’s Inn Resort, Spa and Conference Center in Montauk, New York. “I’m sure the intent is to legislate the program out of existence. It’s being labeled as an immigration program when it’s not—it’s a labor program. The people are very happy working for their contracted time and going home. They don’t come here with the intention of staying.

“When the program is monitored by employers that follow the rules, it’s a wonderful program,” Monte added.

The program is vital to keep the industry going, said Shawn McBurney, senior vice president for governmental affairs for the American Hotel & Lodging Association.

“When you get visa workers, you’re able to operate at full capacity, making more revenue and allowing the hotel to retain full-time workers year round,” McBurney said. “If you don’t have visa workers, you can’t operate at full capacity, and that puts full-time workers at risk.”

Numbers game

One of the most immediate problems with the H-2B visa program is the small number of visas granted. The government grants a total of 66,000 per year, 33,000 from 1 October through 31 March and another 33,000 from 1 April through 30 September.

“The biggest problem with H-2B is the save our small business act that passed in 2006 that allowed returning workers to be exempted from the cap the second year,” said Jacob Sapochnick, a San Diego, California-based lawyer whose practice is devoted to immigration law. “The legislation stopped in September 2007, and Congress hasn’t renewed it. Now, returning workers and new workers are competing for the same 33,000 visas. They’re very, very difficult to get.”

Until three years ago, Gurney’s Inn would file for 90 workers. The 109-room property is open year-round, but its peak is right before Memorial Day in May through the end of September.

“During the past three years, we’ve gone down to 60, and this year, if we participate on transfers or extensions, we’ll get maybe 30,” Monte said. “We’re forced to fill the gap with J-1 visas and hospitality interns from as far away as the Philippines.”

There’s an easy solution for this part of the problem, Sapochnick and Monte said.

“The most important thing to do is create more visas,” Sapochnick said. “Open up the cap and allow returning workers to come back without affecting the cap. They should eliminate seasonality from the visa. Hotels need these people year round.”

“Lifting the cap for returning workers—that’s all it would take,” Monte said. “It worked for three years. It was enough to level the need among all the industries that were using the program.”

Sapochnick also recommended making the visa a regular guest-worker visa.

The second major roadblock in the H-2B process is the deadline.

“You can’t apply for an H-2B visa more than 120 days before your need,” McBurney said. “The cap was met in early January 2009, so if someone needed someone from June 1 on, they wouldn’t have the opportunity to apply.”

The cap was met within four days of the application period opening, a month before properties that open 1 June could even apply, McBurney said.

“We filed our petition at the earliest possible time,” Monte said. “We have an approved labor certificate from the Department of Labor, but we don’t have an approved petition. You can find people who are here on H-2B visas that are about to expire, and they can transfer to our property. Most of the people don’t like to do that, though. They want to work, earn their money and head home. The H-2B employees are happy to have these jobs and don’t mind going home for a while and coming back the next year.”

Two other issues impacting the H-2B visa process are recent changes to the program that deal with how hotels find workers and where they’re from.

The change barring the practice was the final nail in the coffin, Monte said.

“Out here, it’s always been the policy that the employee paid the recruiters about (US)$500 to find them a job,” he said. “The recruiter did all the paperwork for the hotel gratis because they were getting paid by the employee. The employees were happy to pay because they had guaranteed work when they got here. Now the recruiters are looking for money from the employers, and that’s an expense owners didn’t budget for and can’t really afford at this time.”

Where employees come from is an issue as well. Until January, there are only 28 countries whose citizens are allowed to apply for an H-2B visa. These countries are the least susceptible to abuse of the system, Sapochnick said.

Options

For those properties that can’t hire workers on H-2B visas, there are a couple of options. The first is a Q-1 visa, which is issued to foreign nationals coming to the U.S. to participate in an international cultural exchange program. Under the Q-1 visa, a foreign national can engage in practical training and employment as long as he also is sharing the history, culture and traditions of their home country.

“It’s an interesting visa because it allows the hotel to create a cultural exchange program,” Sapochnick said. “The public must have interaction with the people to learn the culture. For example, Jamaican cooks can wear Jamaican clothes some days and cook Jamaican meals. It helps diversify the work force.”

This type of program typically involves housekeepers, kitchen workers, front-desk support and waitstaff, Sapochnick said.

Another option is the J-1 visa, which is part of the U.S. government’s Exchange Visitor program. People can apply for the visa for summer work if they:

• plan to remain in the U.S. for a temporary, specific, limited period;
• have evidence of funds to cover expenses in the United States;
• have evidence of compelling social and economic ties abroad and other binding ties that will ensure their return abroad at the end of the visit.

They’re allowed to remain in the country for four months.

In some circumstances, J-1 visa holders can remain in the country as long as one year. Prospective visa-holders must have some language skills and training, Sapochnick said.