Labor Shortages facing Restaurant Operators – Grow your Business by hiring Qualified Foreign Workers with the EB-3 Visa

Staffing issues and labor shortages are at unprecedented levels in the Quick Service, Limited Service and Full Service Restaurant space.

This is making it difficult for most operators to grow their business and expand into new locations.

However there are a select few operators who are addressing their labor shortages by recruiting and sponsoring qualified and experienced foreign national workers through the EB-3 green card program.

By doing so, they are gaining a competitive advantage over their competitors, gaining market share, experiencing top and bottom line growth, and increasing the value of the business.

The EB-3 Program for Restaurant Operators

The EB-3 green card program was designed to allow employers with chronic, hard to fill positions to apply for foreign workers to come work for them on a permanent basis. This is a different program than the temporary H-2B or J-1 programs that are more expensive and burdensome on the employer.

Qualifying Assessment:

The first step is to determine:

1. If your organization is qualified to sponsor foreign national workers for the EB-3 Visa.
2. If so, how many foreign national workers is your organization qualified to sponsor.

To do this qualifying assessment, we require 2 things from the employer:

1. A completed Position Profile.

1. This contains the job title, job duties, minimum requirements, work location(s), and offered salary for each of the positions the employer wishes to fill.

• A copy of the most recently filed Company Tax Return or Audited Financial Statement. This is to determine if the employer meets the “Ability to Pay” requirement.

1. The Ability to Pay requirement states that the employer must have the financial ability to pay the offered wage to the foreign worker for the entire period of the intended employment.

• The employer must demonstrate that they have the ability to pay the offered wage by providing the most recently filed Company Tax Return or Audited Financial Statement.

• In determining the ability to pay, USCIS first looks at Ordinary Business Income (page 1) and Net Current Assets (Schedule L).

• In some cases, the ability to pay requirement can be shown if the employer is currently paying temporary or independent contractors to perform the work that the future permanent foreign national worker will perform.

• The purpose of the Ability to Pay requirement is to ensure that the job offer is bona fide, and that the employer will not default on their obligations to pay the foreign worker.

Engagement:

Once you sign on with us the following will occur:

1. Our immigration attorney team will file the prevailing wage request and start the pre-PERM filing requirements on your behalf.

• Our recruitment team will recruit qualified applicants and assist in conducting zoom interviews.

1. Once you select qualified applicants from the interviews and issue a job offer letter we will start the EB-3 green card processing for those applicants.

Step 1: PERM Labor Certification

The application process requires the employer to obtain a prevailing wage determination, then advertise the position(s) to U.S. workers. If they can show that there are not enough U.S. workers able and willing to fill their open positions, then they can file the PERM Labor Certification.

Prevailing Wage Determination

The Prevailing Wage Request takes approximately 6 months.

• The prevailing wage request is filed per job title. For example if you wish to hire 20 dishwashers, you would file 1 (one) prevailing wage request for the Dishwasher job title.
• The prevailing wage determination will tell the employer what the minimum salary requirement is based on the job title, minimum requirements, and work location.

PERM Advertising Requirement

After the employer receives the prevailing wage determination, then they can proceed to the PERM advertising.

• The DOL requires that the PERM position be advertised on 2 different Sundays in a newspaper of general circulation in the area of intended employment.

• The DOL also requires that the employer post the job opening with the State Workforce Agency (SWA) in the area of intended employment for at least 30 days before filing the labor certification application.

• Finally, the employer must post the Notice of Filing  (NOF) for 10 business days internally as part of the recruitment process for the EB-3 Green Card process.

PERM Labor Certification Filing

The PERM Labor Certification takes approximately 7 months.

• The PERM Labor Certification is filed per applicant worker. For example if the employer wishes to hire 20 Dishwashers, then the employer files 20 PERM petitions.

After the PERM Labor Certification is approved, then the Employer can file the I-140 petition with USCIS.

Step 2: I-140 filing with USCIS

The I-140 petition is filed by the employer with USCIS. It is a request by the employer for USCIS to approve the immigrant for visa for the beneficiary worker.

• The I-140 petition is filed per applicant worker. For example if the employer wishes to hire 20 Dishwashers, then the employer files 20 I-140 petitions.

• The employer includes a copy of the most recently filed Company Tax Return to show USCIS that they meet the Ability to Pay Requirement.

The employer has 2 (two) filing options with the I-140 USCIS Filing:

• Regular Processing. The USCIS fee for regular processing is $700. This fee can be paid by the employer or applicant worker. The USCIS processing time is 3-9 months.

• Premium Processing: For an additional $2,500 USCIS will process the case in 15 days.

After the I-140 is approved then we proceed to the third and final step, Adjustment of Status or Consular Processing

Step 3: Adjustment of Status or Consular Processing

Before the Adjustment of Status or Consular Processing can be filed, the applicant’s priority date needs to be current.

The State Department updates the Visa Bulletin every month.

The Visa Bulletin shows us when the applicant’s Adjustment of Status or Consular Processing can be filed.

Adjustment of Status is filed if the applicant worker is in the U.S.

• This is the typical process for international students in F-1 visa status, temporary workers in H-2B status, or exchange visitors in J-1 status.

• Normal processing time is 6 months.

• When the Adjustment of Status petition is approved by USCIS, the applicant is now a permanent resident green card holder and can start work for the sponsoring employer.

Consular Processing is filed if the applicant worker is outside the U.S.

• This process involves Filing Form DS-260 with the State Department, then waiting for the interview appointment from the U.S. Embassy in the applicant’s country.

• After a successful interview, the applicant will receive a stamp in their passport and travel to the U.S. as a permanent resident green card holder.

• They can now start work for the sponsoring employer.