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Beyond H-2B: Alternative Visa Options for the Restaurant Industry

January 17, 2024
  • Business Immigration

by Natalie McQuilkin 

With a wide range of available jobs in the front- and back-of-house, the restaurant industry accommodates a huge skill set. In our blog post covering common visas for the restaurant industry, we highlight the H-2B visa, which is a temporary employment visa that accommodates workers with minimal experience. In this blog, we’ll highlight visas designed for “the experts” of the restaurant industry. We’ll cover the TN visa, which is geared toward Canadian and Mexican professionals, the O-1 visa for chefs with extraordinary ability, and the EB-5 visa for foreign investors.  

The TN Visa 

Part of the North American Free Trade Agreement (NAFTA), which is now known as the U.S.-Mexico-Canada Agreement (USMCA), the TN visa allows Canadian and Mexican citizens to temporarily work in the United States and “engage in business activities at a professional level.”  Eligibility for the TN visa hinges on the following characteristics: 

  • You must be a Canadian or Mexican citizen, 
  • Your profession is on the USMCA professional list, 
  • A U.S. business has set up a full- or part-time job for you, and 
  • You are qualified to perform your profession.

How can the TN visa be used in the restaurant industry? 

One of the main eligibility requirements for the TN visa is having a profession that is on the USCMA professional list. The hotel/restaurant manager position has a direct tie to the restaurant industry. Two other options, like the managing consultant position and accountant positions, are not as obvious, but they can be incorporated into the restaurant industry, too. The managing consultant can provide valuable advice to improve a restaurant’s operations, while the accountant can track inventory, prepare the business’s budget, manage payroll, and more. Because various jobs from the USCMA professional list can be applied to the restaurant industry, it’s a smart move for restaurant owners to consult with a business immigration attorney to see if a position they need qualifies for the TN visa. 

Each of these positions requires education and/or experience so you can prove you’re qualified to perform the job in the U.S. For the hotel/restaurant manager position, you must have a baccalaureate or licenciatura degree in hotel or restaurant management, or you must have a post-secondary certificate in hotel or restaurant management and three years of experience. If you’re a managing consultant, you must have a baccalaureate or licenciatura degree, or you must have five years of experience. Finally, if you’re an accountant, you must have a baccalaureate or licenciatura degree and a certification, such as CPA, CA, CGA, or CMAN.

Obtaining the TN Visa 

The process for obtaining the TN visa is different for Canadian and Mexican citizens. Mexican citizens are required to obtain the TN visa before entering the United States, and you can do this by applying for the visa at a Mexican consulate or a U.S. embassy. Once your visa is approved, you can set up an appointment for admission into the U.S. at a U.S. Customs and Border Patrol (CBP)-designated port of entry or pre-clearance/pre-flight inspection station. Once a CBP officer finds you eligible for admission, you’ll be granted entry into the U.S. with your TN visa. 

On the other hand, Canadian citizens do not have to apply for the visa before entering the U.S. Instead, when entering the U.S., you must go to a CBP-designated port of entry to provide proof of your citizenship, a letter from your TN visa employer, and your credentials. If you’re considered eligible for the TN visa, then the CBP officer will grant it to you and allow you to enter the U.S. Another option for Canadian citizens is having your employer submit Form I-129, Petition for Nonimmigrant Worker, to U.S. Citizenship and Immigration Services (USCIS) prior to you crossing the border. As of January 2024, the Vermont Service Center is processing I-129 forms for TN visas in two months. Once USCIS approves the form, you can go to a port of entry with the approved form and proof of your citizenship to receive your TN visa. 

Benefits of the TN Visa 

Unlike other popular visas we’ve covered on the blog, there is no cap for how many TN visas can be issued, so more U.S. employers can hire foreign nationals to fill positions without waiting for visas to become available. Another major draw of the TN visa is that visa holders’ spouse and children younger than 21 can join them in the U.S. during their period of stay.  

TN visa holders can stay in the U.S. for up to three years, and the employer and visa holders can submit forms to ask for an extension of stay. The ability to indefinitely extend the period of stay helps provide stable work for the TN visa holder while also filling a crucial role within the company.  

The O-1 Visa: For Chefs with Extraordinary Ability 

Having a chef that can perfect every dish and create new recipes is imperative to upholding a restaurant’s five-star standing. Restaurant owners can hire chefs who are heads above others in skill and experience with the O-1 visa, which we briefly touched on in our post about visas for the hospitality industry.  

The O-1 visa is designed for “the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics.” As creative masterminds of the palate, chefs fall under the “arts” category, which is specifically identified in the O-1B visa, or individuals with extraordinary ability in the arts. Because the O-1 visa hinges on “extraordinary ability,” chefs must be able to prove their “distinction,” which is a “high level of achievement in the arts.”  

Eligibility for the O-1 Visa 

Chefs can prove their extraordinary ability in their field by providing at least three pieces of evidence of recognition and achievement. Supporting documentation can include: 

  • Critical reviews, advertisements, publicity releases, publications, contracts, or endorsements that show the chef has participated or will participate in distinguished productions, events, organizations, establishments in a lead or starring role, 
  • Newspapers, trade journals, magazines, and other publications detailing the chef’s national or international  recognition,  
  • Evidence of commercial or critical success through standing in his or her field and other professional successes 
  • Praise from organizations, critics, government agencies, and other experts detailing the chef’s skill set and knowledge, and/or 
  • Proof that the chef will demand a higher salary than other chefs in the field due to his or her extraordinary ability.5 

One real-world example of a chef who was granted the O-1 visa is Swedish chef Bjorn Weissgerber. Weissgerber is the director of renowned London restaurant Sexy Fish, and several well-known chefs have praised his work. In February 2022, Sexy Fish opened a location in Miami6, and Weissgerber was considered to be a “critical component of Sexy Fish’s [Miami location].”7So Weissgerber could work at the new restaurant, Wildes & Weinberg, P.C., submitted an O-1 visa, which was approved. 

The Process of Obtaining the O-1 Visa 

The U.S. employer is in charge of filing several forms to USCIS for the O-1 visa, including the Form I-129, evidence of eligibility, and itineraries, if applicable. The employer must also provide proof of a consultation with a “peer group,” which includes labor organizations. Finally, the employer must submit a copy of any contract set between them and the chef.8 Currently, it’s taking the Vermont Service Center just two months to process the Form I-129 for O-1 visas.9  

Once the O-1 visa is approved, the chef can stay in the U.S. for up to three years. Moreover, the period of stay can be extended if the employer submits another Form I-129, a copy of the chef’s Form I-94 Arrival/Departure Record, and a statement explaining the reason for the extension to USCIS. Like with the TN visa, the visa holder’s spouse and children under 21 can join him or her in the U.S. during time he or she is set to live and work in the U.S. 

EB-5 Immigrant Investor Visas 

Restaurant investors are just as much of the backbone for the restaurant industry as the other positions we’ve mentioned. According to TouchBistro, the average cost of starting a restaurant is $375,000, and having a restaurant investor to help cover these costs can alleviate major financial stress. Moreover, “almost a third of restaurants close within their first year of business,” so having “an investor bringing in money and valuable experience in the industry can give you insight and resources that will extend the life of your restaurant.” Restaurant investors can also help you expand your business by allowing you to open new locations or create a franchise.10  

The EB-5 Program was created in 1990 to “stimulate the U.S. economy through job creation and capital investment by foreign investors.” Two years later, the Immigrant Investor Program was formed, and this program “sets aside EB-5 visas for participants who invest in commercial enterprises associated with regional centers approved by USCIS.”11 This immigrant visa provides a pathway to obtaining a green card in the U.S. 

Eligibility for the EB-5 Visa 

To be considered eligible for this visa, you must either directly invest in a business or invest in a regional center. For those interested in directly investing in a business, you must: 

  • Invest in a new commercial enterprise that was established on or before Nov. 29, 1990, but has been purchased and “restructured or reorganized” so it is essentially a new commercial enterprise. This business could also have been “expanded through investment,” resulting in at least a 40 percent increase in net worth or number of employees.12 

Along with investing in one of the above business types, investors must also create at least 10 full-time positions and invest at least $1,050,000 in the company. You must also be able to provide evidence of where your funds came from to be eligible for the visa. 

Aside from investing in a specific company, the EB-5 visa also allows immigrants to invest in regional centers, or an “economic unit, public or private…involved with promoting economic growth” in the United States.13 Although this route does not directly contribute to restaurants, investing in these centers can help boost the area’s economy, which can indirectly lead to investing in local restaurants. However, if you choose to invest in a regional center, it’s important that you ensure you’re investing in a legitimate one. You can check out this list from USCIS which highlights approved regional centers by state. 

Applying for the EB-5 Visa 

Unlike the TN and O-1 visas, which are nonimmigrant visas, the EB-5 visa is designed to provide a pathway for visa holders to obtain legal status in the United States. Moreover, only about 10,000 visas are made available each fiscal year.  

To apply for this visa, investors can file the Form I-526, Immigrant Petition by Standalone Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, with USCIS. It’s important to note that as of January 2024, it’s taking 86 months for China mainland-born applicants’ I-526 forms to be processed and 56.5 months for all other I-526 forms.14 Because of these long processing times, it’s best to get started with the filing process now. 

Once the I-526 forms are approved, you can file Form I-485, Application to Register Permanent Residence or Adjust Status. After this form is approved, you will have a two-year conditional permanent residence, meaning you’ll need to renew your status on your second anniversary in the U.S. by filing Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. This form requires you to prove that you met all the requirements for the EB-5 visa for the past two years, like creating at least 10 permanent, full-time jobs and investing at least $1,050,000 into a company. Like the previously mentioned visas, this visa allows you to bring your spouse and children younger than 21 to the United States, and they can adjust their status, too. 

How Do I Get Started? 

If you’re a business owner interested in petitioning a beneficiary for the TN or O-1 visa, or if you’re interested in applying for the TN or EB-5 visa for yourself, Eagan Immigration’s senior business immigration attorney, Hannah Whaley, can help. All three of these visas have different requirements, and having a trusted business immigration attorney on your side makes all the difference. Call our office today at (202) 709-6439, or click this linkto get in contact with Attorney Whaley. 

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  • Chapter 4 – O-1 Beneficiaries | USCIS, (last visited: Jan. 8, 2024).
  • Virginia Gil, Sexy Fish Miami finally has an opening date, TimeOut, Feb. 1, 2022, Sexy Fish Opens in Miami’s Brickell Neighborhood on February 3 (timeout.com).
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