Email Us: help@fsxllc.com
October 11, 2022

Just a few years ago, I wrote an article published here regarding the shortage of qualified workers in the US, particularly in the food service and hospitality industries. Since that article was published, COVID-19 and the associated economic impact has intensified the labor shortage.

Published by McKinsey and Co. a paper in July titled “The Great Attrition is making hiring harder. Are you looking for the right talent?”1 The paper examines many of the causes of the increasing labor shortage and provides some possible solutions, but there is no escaping it. the fact that there is a shortage of workers and it will not go away soon. The headline of a more recent article in the Wall Street Journal says it all: “Restaurants, Restaurants and Hotels Still Hiring and Saying There Are Not Enough People.”2

There is an answer to some of your employment needs, but not in the US job market. The answer for many of my clients in my travel business is to recruit and hire foreign workers. Increasingly, restaurants and hotels know that what they cannot find in the US, they can find in the international labor market. There, you have a diverse, large and motivated group of workers who will be willing to come legally to work in America.

The Green Card Sponsorship Process

The US Department of Labor and US Citizenship and Immigration Services provide a Green Card application process that allows US employers to hire foreign nationals if:

Green Card support for a first-time alien involves certifying to the Department of Labor that there is no eligible U.S. worker available and/or interested in the job offer. The process includes advertising in local newspapers and receiving a “Congratulation Letter” from the Department of Labor for the position being offered. Due to the low level of unemployment, my experience is that few, if any, US workers respond to these types of recruitment efforts, since the pay is not attractive and the jobs are available directly. Americans are not really willing to work in the industry. Once the Department of Labor is satisfied that the employer has made a good effort to recruit, the application is usually approved immediately and the employer can file documents with the United States Citizenship and Immigration Services ( USCIS) to complete the Green Card process.

The opportunities offered should not be exclusive or unique. Even bus or kitchen support jobs can qualify under this method. I have used foreign workers to hire almost all of their restaurants through this method, however, it is expensive to hire foreign workers. You must pay advertising, legal, and government fees. The process can be long (one to two years), but you will have access to motivated and qualified candidates that do not exist in the American labor market today.

O-1 Visa for Star Chefs

In addition to the Ministry of Labor process described above for special workers, the “star” chefs can qualify under a simple and quick immigration process. The O-1 Visa is designed for individuals who are “specialists” in their field. A professional chef may qualify for an O-1 Visa as a person specializing in food production. A successful O-1 visa for a chef usually involves someone with advertising credits, certifications/accreditations and experience as a chef in a well-known restaurant abroad.

If the person meets these requirements, the process is quick and does not require announcements or participation from the Ministry of Labor. What is even more interesting about the O-1 Visa, is the important support staff that can easily be added to the main visa holder’s case. For example, a sous-chef who worked with the chef in the past can join the visa and come to the US as a team.

Retaining the Employee You Sponsor

Many employers ask me: How do we know that the candidate will not leave us as soon as they arrive here on a green card? While you cannot force any employee to work for you, it is legal to enforce a fair and balanced contract. This will bind the employee to the company that supports the green card for a set period of time. If the employee leaves before the end of the contract period, he may be liable to pay an estimated amount of damages under the contract due to the breach. This will prevent the departure of employees to whom you are giving time and money, and if they leave, you may be able to recover some or most of your expenses.

In this new world of labor shortages, you may want to look at recruiting worldwide, not just the challenging US market, to meet your needs.

1 https://www.mckinsey.com/business-functions/people-and-organizational-performance/our-insights/the-great-attrition-is-making-hiring-harder-are-you-searching-the-right -talent-pools?cid=eml-web

2 https://www.wsj.com/articles/restaurants-bars-and-hotels-keep-hiring-and-say-they-still-dont-have-enough-people-11659734572

John Assadi, a member of the Office, specializes in representing foreign workers of international organizations, international entertainers, scientists, and professional athletes. His clients include major non-profits, national sports teams, major bands, large corporations and startups. Mr. Assadi received international media attention for his work on behalf of some Chinese artists who were on the Golden Venture ship. His representation allowed them to find a permanent place as artists of great skill. Former Vice Chairman of the American Bar Association Immigration & Nationality Law Subcommittee and is admitted to the Connecticut Bar and Federal District Court. He can be reached by phone at 212-370-1300 or by email at jassadi@egsllp.com