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Hospitality Groups Push For Visa Changes To Fill Labor Gap

Dec 5, 2023

The post-pandemic surge in tourism should be good news for the hospitality industry, which suffered widespread layoffs and resignations, but hotels are facing a new double threat: a dearth of available U.S. workers and systemic barriers to hiring foreign workers.

Despite offering higher wages, expanding benefits and offering greater scheduling flexibility, 82% of hotels reported staffing shortages as of June, with 87% of them saying they are unable to recruit enough U.S. workers to meet their staffing needs, according to the American Hotel & Lodging Association.

The only solution then is to look abroad for labor, but immigration attorneys working in the hospitality space blame outdated visa restrictions and few immigration pathways for unskilled workers desperately needed to meet staffing needs at hotels and restaurants.

"We need to recognize that there are just not enough paths," FordHarrison LLP partner Geetha Adinata said. "It's just not easy to bring in unskilled labor … the current pathways that are provided are really difficult. It's almost as if the U.S. government doesn't recognize the importance of these kinds of workers to so many industries."

Like many other non-agricultural sectors, the hospitality industry relies heavily on the temporary H-2B visa program, which allows companies to hire foreign workers as long as U.S. workers and their wages and working conditions aren't negatively impacted.

The program, however, is limited to 66,000 annual visas, which is far fewer than the number of vacancies in the hospitality industry alone.

American Hotel & Lodging Association president and CEO Chip Rogers told Law360 that the current U.S. hotel employment level is 220,500 jobs short of pre-pandemic levels, despite the historic improvement in wages and benefits.

The association has long advocated for an overhaul of the immigration system, and is currently pushing Congress to implement measures that make more visas available to H-2B foreign workers.

One proposal the association is backing would exempt returning H-2B workers from the 66,000 visa cap, which gets divided up evenly between workers starting in the first half of the fiscal year and those starting in the latter half.

The U.S. Department of Homeland Security made an additional 64,716 H-2B visas available for fiscal years 2023 and 2024, which could give Congress an impetus to permanently increase the number of H-2B visas, according to Duane Morris LLP partner Ted Chiappari.

"That might be something where Congress would get comfortable, because it's still labeled as temporary and you're not actually boosting the number of people who can stay here permanently," Chiappari said.

However, the additional visas, while welcome, aren't enough because larger companies tend to win most of the available visas, Chiappari said.

"For a regular local employer who's just looking to bring in a handful of temporary workers, they've got no chance of actually using the H-2B program in any meaningful way," he said.

The American Hotel & Lodging Association is also pushing Congress to pass the Asylum Seeker Work Authorization Act, which would allow asylum-seekers waiting for their immigration court hearings to apply for work permits 30 days after applying for asylum instead of the current 180 days.

Without these kinds of measures, hotels experiencing critical staffing shortages have been and will continue to cut down on the number and frequency of services they offer, or take some rooms out of service altogether, which could ultimately hurt their bottom lines, according to Rachel Magaziner, an associate with Munsch Hardt Kopf & Harr PC.

While these are short-term measures, larger questions about the long-term viability of hospitality companies remain if shortages persist, she said. On a recent work trip to Dallas, Magaziner said she decided not to stay at a hotel that wasn't offering room service during weekdays.

And on another trip to Florida, Magaziner said she wanted to spend her last day ordering food and drinks by her hotel pool. However, she went elsewhere after finding out the hotel pool was no longer offering towel service, which in retrospect she attributed to staffing shortages.

"There has got to be so many more people like me who are making big decisions like that based on little things that when you start looking at them in the cumulative and as a whole, add up to actually be catastrophic for the company," she said.

Companies that aren't lucky enough to score any H-2B visas in the lottery have few other options for hiring foreign workers. One of those options is the EB-3 visa, which is reserved for professional and highly skilled workers, but can also be used for unskilled workers with two years of training or work experience.

Adinata, the FordHarrison attorney, said many companies looking for unskilled labor are starting to realize that EB-3 visas are not just for educated professionals.

The catch, however, is that getting a worker to the U.S. can take up to three years. But the companies that pursue the strategy will be able to start building a solid pipeline of workers, Adinata said.

Adinata also said Congress could create green cards specifically for unskilled foreign hospitality workers as a way to tackle the high turnover rate in the industry. According to the Bureau of Labor Statistics, the hospitality industry has one of the highest turnover rates among all industries.

Employer-sponsored green cards could incentivize foreign hospitality workers to stay in their positions longer, Adinata said.

Right now, getting an employment-based green card takes about two to three years, and hospitality workers on that path will likely be hesitant to leave an employer before that process is complete, she said.

"You're going to get three years out of a worker as opposed to six months. It's a huge, huge benefit on both sides," Adinata said. "It's a win-win."

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