Labor Shortages – The World is Your Solution
Article contributed by John Assadi, Ellenoff Grossman & Schole LLP
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.
McKinsey and Co. published a paper this July entitled “The Great Attrition is making hiring harder. Are you searching the right talent pool?”1 The paper examined the many causes of the worsening labor shortage and provided some potential solutions, but there is no escaping the reality that labor shortages are here and are not going away any time soon. The title of an even more recent article in the Wall Street Journal says it all: “Restaurants, Bars and Hotels Keep Hiring and Say They Still Don’t Have Enough People.”2
The answer to at least some of your staffing needs exists, but it’s not in the tight US labor market. The answer for many of my clients in my immigration practice is to recruit and hire overseas workers. Increasingly, restaurants and hotels realize that what they can’t find in the US, they can find in the international labor market. There, you have a diverse, large and motivated group of workers who would be eager to legally come and work in the US.
The Green Card Sponsorship Process
The US Department of Labor and the US Citizenship and Immigration Services provide a Green Card application process where US employers can hire foreign workers if:
- The employer can demonstrate that it made a good faith recruitment effort to hire US workers and could not find them; and
- The employer can afford to pay the market wage for the foreign recruits.
Green Card sponsorship for a foreign national first involves proving to the Department of Labor that no qualified US workers are available and/or interested in the offered position. The process includes advertising in local newspapers and obtaining a “Prevailing Wage” from the Department of Labor for the offered position. Due to the historically low unemployment rate, my experience has been that few, if any, US workers respond to these types of recruitment efforts, since the salary is not attractive and the jobs are available precisely because Americans are not actually willing to work in the offered industry. Once the Labor Department is satisfied that the employer has conducted a good faith recruitment effort, it will typically quickly approve the application and the employer can then file the paperwork with the United States Citizenship and Immigration Services (USCIS) to finalize the Green Card process.
The positions being offered do not have to be highly specialized or unique. Even basic busboy or kitchen support staff positions can qualify under this method. I have had clients use foreign labor to staff virtually their entire restaurant through this method, however, it costs money to recruit foreign workers. You must pay advertising, legal, and governmental filing fees. The process can be lengthy (one to two years), but you will get access to highly motivated and qualified candidates that simply do not exist in today’s US labor market.
O-1 Visa for Star Chefs
In addition to the Department of Labor process described above for basic personnel, “star” chefs can qualify under a simpler and faster immigration procedure. The O-1 Visa is designed for individuals of “extraordinary ability” in their field. A well-regarded chef can qualify for the O-1 Visa as someone who is extraordinary in the culinary arts. A successful O-1 visa for a chef typically would involve someone with media coverage, prizes/awards and experience as a chef in a prestigious restaurant abroad.
If the person meets these requirements, the process is quicker and does not require advertising or involvement by the Department of Labor. What is even more attractive about the O-1 Visa is that essential support staff can easily be added to the principal visa holder’s case. For example, a sous-chef who has 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, a fair and balanced employment contract is legally enforceable. It will bind the recruit to the green card sponsoring company for a defined period of time. If the employee leaves before the end of the contract term, he/she could be obligated to pay a determined amount of liquidated damages under the contract as a result of the breach. This will deter the departure of employees upon whom you have invested time and money, and if they do leave, you could arguably get some or most of your expenses returned.
In this new world of labor shortages, you may want to look at the labor pool in the entire world, not just the challenging US labor market, to meet your needs.
John Assadi, a member of the Firm, specializes in the representation of foreign employees of multi-national corporations, international entertainers, scientists, and professional athletes. His clients include major nonprofit organizations, national sports leagues, major orchestras, larger companies and startups. Mr. Assadi received international media attention for his work on behalf of several Chinese artists who were aboard the Golden Venture ship. His representation enabled them to obtain permanent residence as artists of extraordinary ability. He was the 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 [email protected]