Immigration and the Hospitality Industry

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Now that the election is over and we know who’s running the country for the next few years, is it too much to think that we might get some kind of comprehensive immigration reform? It seems that the time is right for a big change. President’s Bush and Obama were not successful in getting Congress to take action. President Obama recently instituted some controversial but popular reforms on his own without waiting for Congress. The fact that those actions may have helped him get re-elected has not gone unnoticed by Congressional representatives, who are likely to take action. But the question is when.
  Immigration & theHospitality Industry:   What’s Expected for 2013? N  described educational requirements or a limitedgroup o proessions, such as accountant, computersystems analyst and hotel manager. Managementconsultants are also possible, but don’t call someonea consultant just because there isn’t a NAFTAproession or the service you need.For more inormation, see L and EB-1 Status: Executives andManagers can be transerred romrelated businesses  The government makes it relatively easy to transera person rom one related business entity outsidethe U.S. to another in the U.S. That person must haveworked in an executive, managerial, or specializedknowledge capacity or that entity outside the U.S.or at least one year within the past three, and becoming to the U.S. to work in one o those capacities. The two businesses must be related, either in termso corporate relationship or ownership by the sameperson or group o people. This process can be used or temporary positions,approved or up to seven (7) years, or “permanent”employment, which many people call a “green card.”It requires a mail-in ling or most people, taking romtwo weeks (i an expediting ee o $1,225 is paid) toseveral months or review, except or Canadians, whocan present them at a border or port o entry or anon-the-spot decision. Initial ling ees total $825 and,or everyone but Canadians, a visa must be appliedor and issued at a U.S. consulate outside the country.For more inormation, see,, and E-3 and H-1B: Occupations that requirea degree or equivalent can be lled,with some limitations “Specialty Occupations” present another great optionor U.S. employment o transerred employees ornew hires. The general rule or these jobs is that the job requires a particular kind o college degree orthe equivalent o that degree based on educationand/or experience, and the person has that degreeor equivalent. Classically, this applies to jobs such asaccountants, engineers, and computer proessionals,among others. It can be dicult to get approval or jobs that some people (and the government) don’tnormally associate with a particular degree, such asSales Managers, Market Research Analysts, or PublicRelations Specialists. But it can be worth exploring. The current challenge with the H-1B classicationis you can only hire people who already have thatclassication; a person who has not already beenapproved or employment with that classicationcan’t get it until October 2013. Anyone hoping to beconsidered or one o the H 1B’s to be allocated atthat time should plan to submit the ling on April 1,2013, the rst day on which lings will be accepted.Only 65,000 new H-1B’s are available or each scalyear, and they can all be allocated within as little asa ew days or weeks. Fortunately, Australian citizenshave a virtual equivalent to the H-1B in the orm o the E-3 status, which is open or applications year-round.Both o these classications require multiplegovernment lings and approvals, with government-charged ling ees starting as low as $825 or anE-3, and $1,575 or an H-1B. Visa ees add to thosecharges. Approval o an E-3 is or two years, butrenewable indenitely, whereas the H-1B can onlybe approved or as many as six years, in three yearincrements.For more inormation, see can expect that the H-1B classication will be thesubject o great debate in Congress. Many employersclaim that businesses are sufering because o thelack o available, highly educated U.S. workers andthe restriction on the number o new H-1B approvals.Don’t be surprised to see higher government-chargedees in exchange or an increase in the numbers. E-2: Foreign-owned businesses in theU.S. might have another option It might be possible to open an additionalemployment-based immigration option i thebusiness operating in the U.S. happens to have  signicant (50% or more) oreign ownership orinvestment. The U.S. has treaties with many countriesthat make it possible to hire citizens o the oreigncountry, whether they are still in that country oralready in the U.S., to provide executive, managerial,or “essential” services. The E-2 process may involve a ling at a U.S.consulate overseas and/or a mail-in petition in theU.S. Government-charged ling ees at consulatesstart at $270, with the possibility o additional eesassociated with the particular country. Mail-in lingsin the U.S. have a $325 ling ee. Mail-in lings cantake one month or more or review, and visas can takethat long or longer, depending on the availability o appointments.You can determine whether such a treaty exists ora specic country by checking the Department o State’s Visa Reciprocity page at F-1 and J-1: Foreign students andexchange visitors can help in a pinch Remember those days when you were perorming aninternship while in school, working during summervacation, or in that rst job ater graduation? Optionsmay exist or you to employ oreign students in almostany kind o job, but you must be very careul to ollowthe rules. Employment o F-1 students during theschool year is limited, but many students approvedor “curricular practical training” or “optional practicaltraining” can be available or up to a ull year o ull-time service. J-1 “exchange visitors” have come undermore challenging protocols, but i one is authorizedto work or you, such as at a seasonal resort, it canbe an excellent option or students interested insummer work/travel.For more inormation, see Everybody’s still talking about EB-5 andRegional Centers Many in the hospitality industry have identied asource o signicant unds through the EB-5 program,which includes Regional Centers as one variant.Investors can get a “green card” or themselves andqualiying amily members i their investment o at least either $500,000 or $1 million results in theemployment o at least 10 U.S. workers. The investormust be engaged in the management o the, either through the exercise o day-to-daymanagerial control or through policy ormulation.For more inormation, see Don’t orget – the Form I-9 isor Everybody, not just “oreign”employees Everything I’ve noted above is employment, whichmeans that you must complete a Form I-9 or all o them, just like you do or every single employee inyour workorce. Government audits are becomingmore common, but less widely publicized, and nesor “paperwork” violations can be surprisingly large.Some o you are registered in the E-Veriy program.I would not be surprised i E-Veriy, or some versiono it, becomes a requirement or all employers as apart o comprehensive immigration reorm. Butuntil then, it is optional or most employers exceptcertain ederal contractors and their subcontractors.State and local legislation, such as in Arizona, haveimposed E-Veriy registration, too, so be sure youunderstand the requirements established by theederal and state or local governments in whose jurisdiction you operate.You can learn much more at I-9 Central, at How about transers rom the U.S. toprovide services elsewhere or simplyproviding management services toentities outside the U.S.? It certainly makes business sense to “export” yourknowledge base to improve the bottom line o aoreign entity, whether corporately related or simplyas a matter o selling your expertise. But a wordo caution is due, including or work to be done incountries like Canada and the U.K., where it’s easy toget into the country or months at a time without avisa. Don’t orget – these are diferent countries, with  diferent laws, including immigration, employmentand tax laws. The act that it’s easy to talk on thephone or work together over the internet does notmean that you might not be required to navigatetime-consuming procedures and get governmentapprovals in advance o entering the other country. This is one o the reasons that our rm is a membero the Globalaw network o law rms, with oces inmore than 160 countries. It’s also why I am the co-chairo that organization’s Cross Border Labor Initiative,which regularly meets and shares inormation aboutvarying immigration and employment standards sothat we can get our clients to the right lawyer in thetarget country or quick, efective advice. Conclusion Business moves quickly – government bureaucracydoes not. Don’t expect much change to actually takeplace this coming year. But be prepared to let yourCongressional representatives know what you needin terms o changes to our immigration laws. Otherthan that, the best things that you can do are to planwell in advance and to understand the current rules,timelines and costs required to meet your needs or2013.Gregg Rodgers is an ownerin the Seattle oce o GarveySchubert Barer, a ull-servicelaw rm o more than 100attorneys with oces in Alaska,Beijing, New York, Portland,Seattle and Washington, D.C.He concentrates his practiceon the areas o immigration(business, healthcareproessionals, and amilies) and employment law. Mr.Rodgers provides legal advice to individuals, businessowners, managers, and executives on each o theseareas. He conducts audits and advises clients onForm I-9 and E-Veriy compliance. He also conductstraining sessions or clients, trade associations, andeducational groups, on immigration and on laborand employment law issues.
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