Some annual club goals usually involve staffing and ensuring that the club has the right number of employees for its needs as well as retaining its good employees.
Planning your club’s staffing strategy is especially important when it comes to employing foreign nationals—non-U.S. Citizens and non-U.S. Lawful Permanent Residents (Green Card holders). With many crucial deadlines and little room for mistakes, outlining your club’s foreign national staffing strategy is important at the commencement of the year.
Common Visa Options for Clubs
First, let us start with the basics. What are the most common visa types applicable to private clubs?
H-2B Visa
The most common visa for the club industry is the H-2B seasonal visa. The H-2B seasonal visa is available for up to nine months and requires that a club demonstrate that it has a seasonal need for additional staff during parts of the year. For example, many properties from the Carolinas to Maine enjoy H-2B visas because they know that they will have staff to work in May and September of every year—two months when it can be very difficult to find reliable staff. Private clubs can use the H-2B visa to help with the problems that many organizations face with staffing the beginning and ends of seasons when college students and J-1 trainee visa holders are unable to work.
H-2B visas can be a major benefit to private clubs as these visas can allow you to staff the right number of employees during each part of the year. If, for example, your club is busiest from May through October, you can use the H-2B visa to bring in additional staff during that time and then decrease your staff in non-busy months. Additionally, because many H-2B visa holders see seasonal work as their careers, organizations often find them to be extremely professional and hard working. H-2B visas can also help organizations avoid the high costs of recruiters as the entire process is often less expensive than using a recruiter to find U.S. workers. Also, many clubs recruit from fellow clubs with opposite seasons (e.g., a club in Florida recruiting from a club in New York), saving the organization costs while having an opportunity to see the H-2B worker perform in a similar environment. Furthermore, some clubs are in remote areas and the H-2B visa is the only way that they can find staff with a small local workforce. Finally, the H-2B visa can be the foundation of year-round employment options for foreign staff, such as H-1B and O-1 visas.
J-1 Visa
The other common seasonal visa option for the club industry is the J-1 visa. The J-1 visa is a temporary exchange visa that anticipates that the visa holders will come to the United States to learn about a job or the culture and then return home to spread what was learned in the U.S. J-1 visas are most commonly used by clubs for summer work, where the visa holder must have completed at least one semester of college. The length of the visa for these individuals cannot exceed four months. Due to the time limitation (four months), the educational requirement and the difficulty of bringing people back year-after-year, more clubs are turning to the H-2B seasonal visa for their staffing needs when a person is needed for more than four months of employment.
H-1B Visa
A common year-round option for the club industry is the H-1B visa, which is also the most common type of work visa in the U.S. It is an employer-sponsored visa that is available to a foreign national that holds at least a Bachelor’s degree or the foreign equivalent and will be working for a U.S. employer in a job that requires, at a minimum, a Bachelor’s degree. Because the H-1B visa is the most popular type of work visa, the government placed a numerical limit on how many of these types of visas it issues annually in an effort to protect U.S. jobs. If that number is exceeded, then every April 1, the U.S. immigration services holds a random lottery to select which petitions are reviewed by immigration officers.
Many of the foreign nationals who are sponsored for H-1B visas by U.S. employers and who are subject to the random lottery have been studying in the U.S. at colleges, universities and in graduate programs in F-1 Optional Practical Training (OPT) student visa status. Upon completion of their studies, many of these students are eligible to work for a U.S. employer for one year without visa sponsorship through the F-1 OPT program.
Now is the time to determine whether your club wants to sponsor employees for H-1B visas. In order to file in time for the deadline, a petition must be initiated no later than the end of February.
O-1 Visa and Other Options
Another year-round visa option that clubs can consider is an O-1 visa. O-1 visas are available to those individuals who have reached the top of their field while receiving recognition or accolades. While this seems like a very high threshold to meet, O-1 visas can be great visa options for those who receive recognition incidental to their jobs, such as club managers and chefs. The government is sometimes willing to consider organizational achievements in the O-1 visa context if a person is able to show that he or she was directly responsible for those achievements. Therefore, someone in a leadership position at a club or a chef who created an award-winning menu can be viable O-1 visa candidates.
The final visa options to consider are very fact-specific—and only available to certain nationalities and/or people who are coming to the U.S. to perform certain jobs. Citizens of Canada, Mexico, Australia, Chile and Singapore all have unique and special visa options allotted for them, but they also must be performing a certain type of job in order to qualify for these country-specific visas.
Timing, Dates, Deadlines
If your club already employs foreign nationals, then taking time at the beginning of the year to look at looming expiration dates and having a long-term plan are vital in keeping the employee happy while e making the right decisions for your club.
Perhaps the most critical deadline to be aware of early in the year is the H-1B visa cap lottery. If your club is currently employing someone who holds F-1 student visa status and is working for your club through the Optional Practical Training (OPT) program, then this will be the most important immigration deadline of the year for your club. The filing deadline for the H-1B visa cap is April 1, 2017. In order to meet this deadline, your club must start the H-1B visa petition preparation process no later than mid- to late-February. Initiating the process after February can result in not being able to file the H-1B visa petition in time for the filing deadline. This has major consequences for the club and the employee. If the deadline is missed, it is all but certain that the employee will need to stop working for the club at the expiration of the OPT time and may need to return to his or her home country.
If your club currently employs H-2B seasonal visa holders, it is important to schedule a reminder to start the visa process for the next season at least six months before your seasonal start date to ensure that your visas are approved in time for the following season. This will allow you to bring back many of your current H-2B visa holders if you choose to do so. If for example your season runs from October 1 through May 15, you should set a reminder to start the petition process six months prior to October 1—around April 1 of every year.
All visa types expire after a period of time. Tracking these expirations is vital to not only keeping your club compliant, but also to protect your foreign national employee against working without legal authorization. As a best practice, schedule a reminder to commence the visa renewal process six months prior to the visa expiration to protect against the visa expiring without time to file a renewal application.
Green Cards
For many foreign nationals, the ultimate goal is staying in the United States permanently. To do so, the foreign national would need to apply for U.S. Permanent Residency (green card). There are two common ways to obtain a green card in the U.S. The first is by marrying a U.S. citizen. The second is through employer sponsorship. Every club has the opportunity to sponsor any employee—including those in the United States on seasonal visas—for U.S. Lawful Permanent Residency.
The process of sponsoring an employee for a green card is time consuming and can be costly. It is extremely helpful to have a green card sponsorship policy in place when employing foreign nationals. Issues that can be covered in the policy are: When is the club willing to commence the green card process for foreign nationals, who pays what costs, and whether spouses and children of the employee will be included.
Importantly, there are times when green card sponsorship is necessary if the club wants to continue to employ a foreign national. For example, a person can only hold H-1B visa status for a total timeframe of six years unless an employer has initiated a green card application around the four-year mark of H-1B visa status.
If an employer wants to sponsor an H-2B seasonal employee for a green card, the timing of filing a green card application is critical as filing at the wrong time could make the U.S. entry for the seasonal employee very difficult.
Because of the above deadlines and considerations, taking a moment to look at the year ahead can help to ensure that nothing is missed when it comes to the employment of your club’s foreign nationals.
Planning for New Staff Hires
The issues for new staff are a bit different than those for current staff and are centered around when you hire employees. The only deadline driven issues for new staff center around H-2B seasonal visas and H-1B visas.
As discussed previously, if your club is interested in employing H-2B seasonal visa holders to help with your busy time of year, it is important to schedule a reminder to start the visa process for the next season at least six months before your seasonal start date to ensure that your visas are approved in time for your season.
If you are looking to hire a current student in the U.S. or someone outside the U.S., then the H-1B visa may be applicable. If so, then January or February is the best time to look into this hire to see if it is worthwhile to file an H-1B visa petition that would be subject to the random lottery and if there are any alternative visas are available.
Taking an individualistic approach to determining what is the best visa type for each employee and that situation is important, especially is a club must work around issues like the H-1B visa lottery.
While it may seem that there are many visa options when it comes to clubs, in reality, though, many of the visa types are only applicable to certain situations and timing is often key. Therefore, make 2017 the year to be organized in how you plan for the employment of foreign nationals to help your club achieve its staffing goals. Taking the time to analyze your club’s staffing strategy and needs at the beginning of the season can have major benefits and consequences for both your club and your foreign national employees.
Keith A. Pabian, Esq. is an immigration attorney at Pabian Law, LLC, an immigration law firm that represents companies and organizations in New England and across the United States. He can be reached at [email protected] or 617-939-9444. This article was prepared for educational purposes only.