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Englishby Natalie McQuilkin With a wide range of jobs available in the front and back of the house, the restaurant industry accommodates a large set of skills. In our blog post covering common visas for the restaurant industry, we highlight the H-2B visa, which is a temporary work visa suited for workers with minimal experience. In this blog, we will highlight the visas designed for industry “experts.” We will cover the TN visa, which is aimed at Canadian and Mexican professionals, the O-1 visa for chefs with extraordinary ability, and the EB-5 visa for foreign investors.
As part of the North American Free Trade Agreement (NAFTA), which is now known as the Agreement between the United States, Mexico, and Canada (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 depends on the following characteristics: · You must be a Canadian or Mexican citizen, · Your profession is on the USMCA Professional list, · A U.S. company has established a full-time or part-time job for you, and · You are qualified to practice your profession.
One of the main eligibility requirements for the TN visa is having a profession that is on the USMCA professional list. The hotel/restaurant manager position has a direct link to the restaurant industry. Two other options, such as the management consultant position and accountant positions, are not as obvious, but can also be incorporated into the restaurant industry. The management consultant can provide valuable advice to improve a restaurant's operations, while the accountant can track inventory, prepare the company budget, manage payroll, and much more. Because several jobs from the USMCA professional list can be applied to the restaurant industry, it is a smart decision for restaurant owners to consult with a business immigration lawyer to see if a position they need qualifies for the TN visa. Each of these positions requires education and/or experience so that you can prove you are qualified to perform the job in the US. For the hotel/restaurant manager position, you must have a bachelor's 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 are a management consultant, you must have a bachelor's degree, or you must have five years of experience. Finally, if you are an accountant, you must have a bachelor's degree and a certification, such as CPA, CA, CGA, or CMAN.2
The process for obtaining a TN visa is different for Canadian and Mexican citizens. Mexican citizens must obtain the TN visa before entering the United States, and can do so by applying for the visa at a Mexican consulate or a U.S. embassy. Once your visa is approved, you can schedule an appointment for admission to the U.S. at a designated U.S. Customs and Border Protection port of entry or at a pre-flight inspection station. Once a CBP officer finds you eligible for admission, you will 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, upon entering the U.S., you must go to a CBP-designated port of entry to provide proof of your citizenship, a TN visa employer letter, and your credentials. If you are deemed eligible for the TN visa, the CBP officer will grant it to you and allow you to enter the U.S. Another option for Canadian citizens is for their employer to file Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS) before crossing the border. As of January 2024, the Vermont Service Center is processing Form I-129 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.
Unlike other popular visas we have covered on the blog, there is no limit to the number of TN visas that can be issued, so more U.S. employers can hire foreign nationals to fill positions without waiting for visas to become available. Another major appeal of the TN visa is that the spouse and children under 21 of visa holders can join them in the U.S. during their period of stay. TN visa holders can remain in the U.S. for up to three years, and the employer and visa holders can file forms to request an extension of stay. The ability to indefinitely extend the period of stay helps provide stable employment for the TN visa holder while playing a crucial role within the company.
Having a chef who can perfect every dish and create new recipes is imperative to maintaining a restaurant's five-star position. Restaurant owners can hire chefs who are far above the rest in skills and experience with the O-1 visa, which we briefly mentioned in our post about visas for the hospitality industry. The O-1 visa is designed for “the person who has extraordinary ability in the sciences, arts, education, business, or athletics.” As creative masterminds of the palate, chefs fall under the category of “arts,” which is specifically identified in the O-1B visa, or persons with extraordinary ability in the arts. Because the O-1 visa depends on “extraordinary ability,” chefs must be able to demonstrate their “distinction,” which is a “high level of achievement in the arts.”.
Chefs can demonstrate their extraordinary ability in their field by providing at least three pieces of evidence of recognition and achievement. Supporting documentation may include: · Critical reviews, advertisements, promotional releases, publications, contracts, or endorsements showing that the chef has participated or will participate in productions, events, organizations, or distinguished establishments in a leading 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 their position in their 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 command a higher salary than other chefs in the field due to their extraordinary ability.5 A real-world example of a chef who was granted the O-1 visa is Swedish chef Bjorn Weissgerber. Weissgerber is the culinary director of the famous London restaurant Sexy Fish, and several renowned chefs have praised his work. In February 2022, Sexy Fish opened a location in Miami6, and Weissgerber was considered a “critical component of Sexy Fish's [Miami location].”7 So that Weissgerber could work at the new restaurant, Wildes & Weinberg, P.C. filed an O-1 visa, which was approved.
The U.S. employer is responsible for filing several forms with USCIS for the O-1 visa, including 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 established between them and the chef.8 Currently, the Vermont Service Center is taking only two months to process Form I-129 for O-1 visas.9 Once the O-1 visa is approved, the chef may remain in the U.S. for up to three years. In addition, the period of stay can be extended if the employer files 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. As with the TN visa, the spouse and children under 21 years of age of the visa holder may join him or her in the U.S. for the duration of the time he or she is scheduled to live and work in the U.S.
Restaurant investors are the backbone of the restaurant industry, just like the other roles we’ve mentioned. According to TouchBistro, the average cost of opening a restaurant is $375,000, and having a restaurant investor to help cover these costs can significantly alleviate financial stress. Furthermore, “nearly one-third of restaurants close within their first year of business,” so having “an investor who brings capital and valuable industry expertise can provide you with insights and resources that will extend the lifespan of your restaurant.” Restaurant investors can also help you expand your business by enabling 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 established, and this program “reserves EB-5 visas for participants who invest in commercial enterprises associated with USCIS-approved regional centers.”11 This immigrant visa provides a path to obtaining a green card in the U.S.
To be considered eligible for this visa, you must invest directly in a business or invest in a regional center. For those interested in investing directly in a business, they must: · Invest in a “new commercial enterprise” that was established after November 29, 1990, or · Invest in a new commercial enterprise that was established on or before November 29, 1990, but has been purchased and “restructured or reorganized,” making it 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 In addition to investing in one of the above business types, investors must also create at least 10 full-time jobs and invest at least $1,050,000 in the enterprise. You must also be able to provide evidence of where your funds came from to be eligible for the visa. In addition to investing in a specific business, the EB-5 visa also allows immigrants to invest in regional centers, or a “public or private economic unit... involved in 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 local economy, which can indirectly lead to investment in local restaurants. However, if you choose to invest in a regional center, it is important to ensure you invest in a legitimate one. You can consult this USCIS list highlighting approved regional centers by state.
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 lawful status in the United States. In addition, only about 10,000 visas are available each fiscal year. To apply for this visa, investors may file Form I-526, Immigrant Petition by Independent Investor, or Form I-526E, Immigrant Petition by Regional Center Investor, with USCIS. It is important to note that, as of January 2024, processing times for Form I-526 filed by applicants born in mainland China are 56.5 months, and 56.5 months for all other Form I-526 applications.14 Due to these long processing times, it is best to begin the filing process now. Once your Form I-526 is approved, you can file Form I-485, Application for Registration of Permanent Residence or Adjustment of Status. After this form is approved, you will have conditional permanent residence for two years, which means you must renew your status on your second anniversary in the U.S. by filing Form I-829, Petition by an Investor to Remove Conditions on Permanent Resident Status. This form requires you to demonstrate that you have met all EB-5 visa requirements over the past two years, such as creating at least 10 permanent, full-time jobs and investing at least $1,050,000 in a business. Like the visas mentioned above, this visa allows you to bring your spouse and children under the age of 21 to the United States, and they can also adjust their status.
