Article contributed by John Assadi, Ellenoff Grossman & Schole LLP
As an immigration lawyer in today’s booming economy, many of my business clients ask me about how to satisfy their employment needs. There are labor shortages in many American industries including in the food service industry. Most employers who approach me for advice on sponsoring a foreign worker anticipate a heavy commitment of time and resources as well as a difficult method to justify the green card sponsorship process. In addition, under President Trump, there is a misperception that immigration laws have become more difficult and that visas and green cards are virtually impossible to obtain.
In fact, the opposite is true, at least for green cards. The green card sponsorship process has become easier and faster than before. You can hire the cooks, kitchen workers and other support staff that you need. You will find the international pool of restaurant workers to be large and eager to work in the US. Skilled (chefs) and unskilled (busboys) labor is within your reach.
Green card sponsorship for a foreign national first involves proving to the Department of Labor that no qualified US workers are available and 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 will not be attractive and many of the advertised jobs are available 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 USCIS will typically only review 2 factors in its adjudication:
- Does the employer have the financial ability to pay the offered wages as of the date the Labor Department application began?
- Does the foreign national have the required qualifications?
Upon approval by the USCIS, the foreign national can receive his/her immigrant visa at a US Consulate overseas, or if in the US, at a local USCIS office. Some interesting points to consider:
- The foreign national does not need to be physically in the US in order to be sponsored. Many of my clients recruit overseas and bring the foreign nationals to the US after the green card sponsorship process is completed. Employers should consider recruiting overseas where the promise of a green card and employment in the US will lead to an enthusiastic response.
- The employer can sponsor multiple foreign nationals for the same position using one set of recruitment/advertising for all required employees. For example, if a restaurant is looking to hire 3 cooks, it can conduct one recruitment/advertising effort and obtain simultaneous approval for all 3 foreign nationals. This will be cost-effective and time-efficient for the employer.
- US employers can easily attract foreign workers by offering green card sponsorship and employment to them; these individuals will prove to be highly motivated and loyal future employees as a result of the effort put into their sponsorship by the
employer. - Employers can formalize the commitment of the future employees by having each foreign national sign an employment contract of up to three years, which would deter them from leaving the sponsoring employer prior to the three years unless they pay liquidated damages. This will protect the employer from investing in a green card process for a foreign national who may leave the employer soon after the green card is issued.
- There is virtually no limit to the types of jobs that can be sponsored. Some recent successful green card sponsorship cases include cooks, busboys, HVAC technicians, sommeliers, kitchen staff, maintenance and cleaning staff, marketing and managerial staff, etc. Both skilled and unskilled positions can benefit from sponsorship, as the demand carries across virtually every category of worker.
- The green card sponsorship process, if done properly, can be completed in less than a year.
Given the reality in today’s limited worker availability, few qualified Americans will work for wages that a restaurateur will consider reasonable. Many American workers are attracted to jobs being offered in industries such as technology, finance and science, whereas the hospitality and food service industries continue to require a global labor force that is becoming increasingly difficult to fulfill. Sponsorship of qualified and motivated foreign nationals may be a practical and necessary response to this new reality.
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 jassadi@egsllp.com
