The H-2B Visa Cap and Possible Strategies to Keep It From Hamstringing Your New Operation

Many startup restaurants rely on foreign national chefs and cooks on a short-term basis. These temporary workers can be critical in assisting new restaurants launch authentic international and ethnic concepts. Until recently, these restaurants have banked on U.S. immigration laws that provide for a temporary employment visa -- the "H-2B" visa. As you probably know, the legal landscape has changed for temporary visas, as part of Congress's well-publicized limit of 66,000 visas to this category annually.

If 66,000 total H-2B visas a year nationally sounds like a tiny number, you're right. In fact, the cap was met on January 3, 2005, for the U.S. government fiscal year 2005, creating a serious problem for those restaurants hiring foreign labor. New H-2B visas cannot be issued until October 1, 2005 (the beginning of the new fiscal year 2006). It is likely that you have learned of this cap from the National Restaurant Association and state counterparts, which are vigorously lobbying for emergency H-2B relief.

If you rely upon H-2B visas to fill short-term workforce demand, this article intends to help you understand the laws and possibly formulate a strategy to avoid being hamstrung by recent severe limitations on visa allocations in this country. (For an overview on immigration law and how it affects the restaurant industry, see "Immigration Legal Issues for Startups.")

What is the H-2B Visa?

The H-2B visa permits a U.S. business to sponsor a foreign national for nonagricultural employment when there is anticipation of a shortage of domestic workers. This visa is frequently used by restaurants to fulfill a temporary need that is either one-time, seasonal, peak load or intermittent. The position must be full-time, for less than one year and the employer must prove that there are no qualified and willing U.S. workers available for the job. Although an employer is permitted to apply for recertification for an additional two years, extensions are very difficult to obtain because, by law, the employer's need cannot be ongoing or continuous.

As you may have learned, immigration law can be a veritable alphabet soup, and involve a number of government agencies. But here goes. The process for obtaining an H-2B visa involves initially filing an application with a local State Workforce Agency (SWA), which sends the application to the U.S. Department of Labor (DOL), and then filing another application with the Citizenship and Immigration Services (CIS) agency. The local SWA directs the recruitment process and instructs the employer on the recruitment requirements, wages and working conditions offered, and refers qualified U.S. job applicants to the employer for interviews. At the end of the recruitment process, the employer is required to prepare a "recruitment report" summarizing the results of the interviews, which includes providing the lawful reasons for not hiring the applicants, in addition to other information. The local SWA then forwards the application to the appropriate regional office of the DOL.

Certification by the DOL is granted if the regional certifying officer finds that qualified U.S. workers are not available and that the terms of employment will not adversely affect the wages and working conditions of workers in the United States similarly employed. For highly specialized workers, such as foreign chefs trained in a particular cuisine, at least theoretically, this is not a reach.

As the old saw goes, it ain't over until it's over. If certification is not granted, the employer can still file a visa petition for the H-2B visa with CIS and appeal the DOL's denial of the certification at the same time. If CIS approves the petition, a foreign national who is already in the United States will receive a change of status (if he or she was in legal status when the petition was filed) or if abroad, he/she will apply for the visa at the U.S. Consulate. Navigating this process without an experienced immigration attorney is challenging, to say the least.

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