Working Visa Options for Restaurants
The restaurant field is generally considered to be disproportionately staffed by foreign nationals that are unauthorized to work in the U.S. In my opinion, this perception is due in part to the fact that the U.S. Immigration laws do not provide efficient and effective work visa options for restaurants that wish to employ foreign nationals. Nevertheless, many potential visa options do exist and they are as follows:
For the permanent immigrant visa, the EB3 visa for specialty occupations has traditionally been the most popular visa option but due to annual quota limits, it can take up to 3 years to obtain a permanent immigrant visa or green card for an employee. During the interim, the employee is not authorized to work for the employer making this visa option impractical except for multinational corporations or employers that have a business plan that allows for such a waiting period. To obtain approval in this category, the employer must demonstrate to the U.S. Department of Labor that no qualified U.S. worker has applied for the position. Currently, cases are taking less than 2 years and this visa category now may therefore be a viable option, especially if the employee has a temporary visa that allows work authorization or is eligible for sponsorship by the employer for one of the temporary working visas listed below:
J-1 Exchange Trainee/Intern Visa
O-1 Extraordinary Alien Employee
The temporary worker visas that I have listed have various requirements and limitations that can make it difficult to qualify a foreign national for the visa. I will discuss some of the requirements and limitations below:
E-1/E-2 Visa
This working visa is available for executive, managerial and highly trained specialists of foreign companies owned by nationals of countries that have a treaty with the U.S. The employee must be the same nationality as the company. Specialist visas are limited to the time required to train U.S. workers. The company must have made a substantial investment in or engage in substantial trade with the U.S. The size of the investment may determine the number of visas available for employees. At least 1-2 visas for the chief executive and manager of a restaurant is possible. An Executive Chef may also qualify. A regular chef will probably not qualify. The spouse of an E visa holder is eligible for a work permit.
L-1 Visa
This working visa is limited to employees transferred to the U.S. company from a parent or subsidiary abroad and have worked for at least 1 year as a manager, executive or specialist. The same type of employees that qualify under the E-1/E-2 visa should qualify under the L-1 except that a specialist will not be required to train a U.S worker. Large restaurants have an easier time in qualifying employees. An average chef usually does not qualify as a specialist. The spouse of an L visa holder is eligible for a work permit.
H-1
This visa is available for an individual that has a Bachelor’s degree in a field of study that is required to fill the position. An office accountant, a marketing director, a business operations manager may qualify along with other occupations that require such a degree. Large restaurant companies have an easier time in qualifying. This visa has an annual quota and chances of being selected are currently less than 50%.
H-2
This visa is available for temporary workers in jobs that no U.S. workers are available to fill. The employer must advertise for a U.S. worker and the visa is limited to one year period. The temporary requirement of this category is difficult to meet, unless an employer can demonstrate a seasonal or one time need.
H-3
This visa is available for workers to be enrolled in a company training program that is primarily of a non-productive nature. This visa is limited for 2 years. On the job training may not be a major component of the program. Large restaurants have an easier time of qualifying workers.
F-1
Students that have graduated from a U.S. school are eligible to work for a period of 12 months practical training. 27 months of work authorization is available for graduates in the STEM fields.
J-1
This visa is available for interns or trainees and limited to 18 months. A training program is required.
O-1
This visa is available for individuals that are prominent, well-known or leading in their field as evidenced by awards, reviews and other media recognition. A famous or accomplished chef can qualify for this visa.
P Visa
The P visa category covers entertainers and athletes that would not qualify under the O-1 category. The P-3 sub-category covers an employee who will participate in a culturally unique program or event with respect to a foreign cuisine.
Q-1
International Cultural Exchange Employee. The employee must be engaged in promoting the culture of their home country in an employer established program.
The above summary is a brief overview of the visa options and meant to be a starting point for a legal consultation and is therefore not to be viewed as such nor as a full and complete analysis of the law.
