By Natalie McQuilkin

In the midst of the Covid-19 pandemic, business took a turn for the worse for the restaurant industry.

In 2020, the industry lost $240 billion, and by the end of the year, 11,000 restaurants were closed, some permanently. In 2021 and 2022, restaurants were tasked with navigating a new normal and had to pick up the pieces from losing millions of sales. By 2023, the industry was making a comeback, with 75 percent of restaurateurs saying they were resuming regular operations and focusing on growth.

Now, in 2024, the industry is booming.

Despite the adversity the industry has faced in the past few years, the National Restaurant Association projects U.S. restaurants will make more than $1 trillion in sales this year – the first time ever in the industry’s history. The Association also expects restaurants around the country to add almost a quarter of a million jobs – a total of 15.7 million – in 2024. After the last few difficult years, most restaurants have been able to dust themselves off and get back on the saddle. Most restaurants are operating at pre-pandemic levels and accommodating more guests. Because of this, nearly half of restaurateurs require more employees to accommodate more patrons. Moreover, about half of restaurant operators believe competition will be fiercer in 2024 than in 2023, meaning service must be top-notch to take a winning spot in patrons’ hearts.

If you’re a restaurant owner, chances are your business has open positions. If you’re having difficulty finding new employees, don’t worry. Hiring employees through the H-2B visa is a great way to fill temporary positions, obtain reliable work, and boost employee morale.

The H-2B Visa

The H-2B visa is a temporary nonimmigrant visa designed for employers to hire foreign nationals to fill short-term positions. U.S. Citizenship and Immigration Services (USCIS) defines a “temporary position” as falling under the following four categories:

• One-time occurrence – This includes a single, short-term event that requires temporary workers and doesn’t require the workers to remain employed at the business after the event. One example is a special event that requires a restaurant to employ additional workers to serve an influx of patrons or prepare food.
• Seasonal need – This pertains to jobs that need to be filled repeatedly each year, usually based on seasons. Examples include beach restaurants or bars that see an influx of guests during the spring and summer months, or ski resort restaurants and hotels that need to accommodate patrons during the winter.
• Peak-load need – This is for businesses that need to hire additional employees to supplement permanent staff during a short-term period. While seasonal need is typically tied to a specific time of year, peak-load need is designed for adding temporary employees when there is an influx in business, no matter the time of yea
• Intermittent need – This is designed for temporarily employing a foreign national to perform a job that permanent or full-time workers do not do. One example is hiring waitstaff for catering events. Your restaurant might not do catering all the time, but when it does, you must rely on additional, temporary employees because your permanent, full-time employees are assigned to working at your brick-and-mortar location.

Common industries that use H-2B visas to fill temporary positions include landscaping, groundskeeping, construction, meat and fish processing, recreation,  hospitality, and restaurants. In fact, in fiscal year 2021, more than 10,000 H-2B visas were approved for food preparation and serving-related occupations, making up 7.6 percent of the total H-2B visas issued that fiscal year.

The Petitioning Process

The H-2B visa requires you as an employer to petition a foreign national, meaning that you will have to fill out several forms and pay the foreign national’s filing fees. However, it’s important to note that petitioning a foreign national is not as simple as just filling out some paperwork once you’ve found the right fit for your business. Hiring a worker through the H-2B process is a multi-step process:

Step 1: You’ve determined that there is a temporary position that you need to fill at your business and that your business would benefit from hiring a foreign national through an H-2B visa. The first step in this process is obtaining the Temporary Labor Certification, which is a multi-step process on its own:

• First, you must request a prevailing wage determination from the Department of Labor’s National Prevailing Wage Center. You’ll provide information about the position you’re interested in filling, and the National Prevailing Wage Center will send back a “prevailing wage,” or the average wage for a U.S. worker in that position. The prevailing wage determination ensures that if you hire a foreign national, at minimum, you’ll pay him or her the prevailing wage. This helps protect H-2B workers from exploitation and ensures U.S. workers’ wages aren’t negatively affected if a foreign national is hired.
• Once you’ve received the prevailing wage determination, you must attempt to recruit U.S. workers. For two weeks, you’ll run ads about the open position with the State Workforce Agency and in newspapers. There are other stipulations in the recruitment process, which you can read about here. Ultimately, in order to qualify to hire H-2B employees, you have to prove that there were no available, qualified U.S. workers to fill your open position. After the two-week recruitment period is up, you must file a recruitment report detailing who applied for the position and why they weren’t appropriate candidates for the job.
• If you didn’t find the right candidate during recruitment, you can then file the Application for the Temporary Employment Certification with the Department of Labor (DOL). On the application, you’ll provide details about the open position’s qualifications, duties, and conditions.

Step two: Once the DOL issues you a Temporary Labor Certification, you can then begin recruiting foreign national workers. One of the easiest ways to do this is by using a foreign recruitment agency. These companies are already in contact with foreign nationals who are interested in applying for the H-2B visa. You’ll provide the agencies with the job duties, pay, and terms of employment so interested applicants get the gist of what they’re applying for. Once you find the right fit for your company, you can submit the Form I-129 (Petition for a Nonimmigrant Worker) to USCIS.

Step three: This step will differ depending on if the foreign national you’re hiring is located inside or outside the U.S. at the time the Form I-129 is submitted. If the beneficiary is legally in the U.S., you can request that the beneficiary’s status be changed to an H-2B worker when submitting the Form I-129. Once this is approved, the beneficiary can start working for you. If the beneficiary is outside the U.S. when you submit the Form I-129, he or she can apply for the H-2B visa with the U.S. Department of State at his or her country’s U.S. Embassy or Consulate. The foreign national attend a visa interview. Once the beneficiary receives the visa, he or she will be able to seek admission with U.S. Customs and Border Protection at a port of entry. Then, the foreign national can begin working at your business. Ultimately, it takes about two to four months to obtain the H-2B visa.

After you’ve hired a foreign national, he or she will work at your business for the time that you’ve set in your Temporary Labor Certification, which is a year or less. After this time passes, however, you can request a one-year extension if you can prove that there is a need for the foreign national to continue working at your business. In total, a foreign national can work in the U.S. on the H-2B visa for as long as three years.

Pros & Cons of the H-2B Visa for the Restaurant Industry

Now that we’ve covered the basics of what the H-2B visa is and how the petitioning process works, let’s break down the pros and cons of this visa in the scope of the restaurant industry.

Pros

Firstly, the H-2B visa doesn’t require the foreign national to have any experience in a specific field, so you can hire new employees for entry-level front- and back-of-house positions, like servers, hosts, dishwashers, cooks, food preppers, and bussers. Because this visa doesn’t require any experience, it can also open up the pool of people interested in applying for restaurant jobs, giving you more opportunity to seek out the right fit for your business.

Another major perk of this visa is that you’ll have reliable labor for a specific period of time. The temporary labor certification lays out how long the foreign national must work for your business. Because restaurants generally have a high turnover rate, knowing that an H-2B visa employee will work for you for a specific period of time adds stability and reduces the risk of having to hire a new employee to take the place of another employee who has quit without notice.  The ability to extend a foreign national’s H-2B visa is also a major benefit. By extending a foreign national’s visa, you can eliminate having to restart the search for another H-2B worker. The H-2B visa can be extended to a total of three years, and although the foreign national must return to their home country for three months after the visa expires, you can petition them for the H-2B visa again after this period is complete.

Hiring H-2B workers reduces the workload for your permanent workers. Having extra employees during your business’s busy months can help distribute tasks more equally, which can help prevent your permanent employees from feeling stressed and overworked. Reducing workplace stress, especially during busy months, can help your business retain more permanent employees. If your permanent employees know that they’ll be working a manageable number of hours during the busy seasons, they’re more likely to continue working for your business and have better morale while doing so.

Cons

Like we mentioned earlier in this article, hiring a foreign national through the H-2B visa isn’t as simple as finding the right fit for your business and putting him or her on the schedule. Hiring a foreign national through the H-2B visa is a lengthy, complicated process. Some might find the process overwhelming and would rather opt to hire a U.S. worker from the get-go.

For some restaurant owners, a potential con of the H-2B visa is having to pay for a foreign national’s visa-related expenses. By petitioning a foreign national, you must pay the $460 filing fee for the Form I-129. On top of that, you’ll have to pay for the foreign national’s travel expenses to and from the United States, which for many foreign nationals includes costly plane tickets. These fees might negatively impact small businesses interested in hiring H-2B workers.

Another potential con for restaurant owners is the H-2B visa cap. Because many U.S. businesses need temporary employees, the H-2B visa is highly sought after. Generally, only 66,000 visas are available each fiscal year, with 33,000 visas available from October 1 to March 31, and the remaining 33,000 visas available from April 1 to September 30. Once the 66,000 cap is reached, USCIS only accepts petitions for workers exempt from the H-2B cap. These workers include those who want to have their H-2B visa extended, change employers, or change the conditions of their employment. Just to give insight of how sought-after the H-2B visa is, in November 2023, the Department of Homeland Security and DOL added 64,716 additional visas for fiscal year 2024, but 45,000 of these visas were made available for returning workers, and the remaining visas were dedicated for workers from El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.

Because there is a lot of competition in obtaining H-2B visas, it can add extra pressure on employers to find the right temporary employee for the business in a specific timeline. Harris Beach, PLLC explains that “an employer should be advised that the very least amount of time the H-2B procedures may be accomplished would be in a 150 day time frame, but ideally the employer should budget an additional 30 to 60 days to that, equally 180 to 210 days, or 6 to 7 months to begin preparation on the first steps of an H-2B filing.”

Should I Use a Business Immigration Lawyer?

Because hiring temporary workers with the H-2B visa can be such a complicated process, there are some pitfalls you might face as an employer.

For instance, you could fail to follow all the stipulations required in attempting to recruit U.S. workers. Or, you could get some information wrong when filling out Form ETA 9142B. Maybe you get the timeline wrong when you’re trying to hire foreign nationals for an open position, or maybe you can’t hire a foreign national at all because of the H-2B cap.

It’s easy to see how some things can go wrong when trying to hire a worker through the H-2B visa.

Having a trusted business immigration attorney on your side, like Eagan’s senior business immigration attorney, Hannah Whaley, can help streamline the process in hiring foreign workers and ensure that you’re submitting all the documentation you need. Attorney Whaley will be able to help you with recruitment efforts and filing USCIS forms while also ensuring you’re following a strategic timeline that works best for your business.

If you’re interested in hiring H-2B workers for your restaurant, contact Attorney Whaley today by calling our office at (202) 709-6439 or clicking this link.

References

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2024 State of the Restaurant Industry  | National Restaurant Association

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Daniel Costa, As the H-2B visa program grows, the need for reforms that protect workers is greater than ever, Economic Policy Institute, pg. 14, (Aug. 18, 2022), As the H-2B visa program grows, the need for reforms that protect workers is greater than ever: Employers stole $1.8 billion from workers in the industries that employed most H-2B workers over the past two decades | Economic Policy Institute (epi.org).

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Leonard J. D’Arrigo, It’s H-2B Season: What Seasonal Employers Need to Know for 2022, Harris Beach, PLLC, (Oct. 13, 2021), It’s H-2B Visa Season: What Seasonal Employers Need to Know for 2022 | Harris Beach, PLLC. Attorneys at Law, (last visited: Apr. 1, 2024).