Over the past 12 months, President Trump’s “Buy American, Hire American” Executive Order, signed April 18, 2017, has been integral to the policy decisions of the Trump Administration and, indeed, underpins proposals to reform the H-1B visa program.

It is surprising therefore that it was reported this week that President Trump’s Mar-A-Lago Golf Club in Florida has filed a request for temporary labor certification, with a view to recruiting 61 foreign employees, on H-2B visas.

The H-2B  Visa

The H-2B visa is a nonimmigrant visa, which enables foreign nationals, in some circumstances, to enter the US to fill temporary nonagricultural jobs.

In order to qualify for H-2B nonimmigrant classification, the petitioning employer must establish:

  • There are not enough U.S. workers who are able, willing, qualified and available to do the temporary work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a:

 

  1. One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:

 

  • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
  • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;

OR

  1. Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
  • Traditionally tied to a season of the year by an event or pattern; and
  • Of a recurring nature.

Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:

Unpredictable;

Subject to change; or

Considered a vacation period for your permanent employees.

OR

  1. Peakload need – A petitioner claiming a peakload need must show that it:

 

  • Regularly employs permanent workers to perform the services or labor at the place of employment;
  • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
  • The temporary additions to staff will not become part of the employer’s regular operation.

OR

  1. Intermittent need – A petitioner claiming an intermittent need must show that it:

 

  • Has not employed permanent or full-time workers to perform the services or labor; and
  • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Upon receipt of temporary labor certification, the petitioning employer may then file a petition for the foreign national in question, after which the proposed foreign worker may seek a H-2B visa to enter the United States, subject to circumstances.

Mar-A-Lago

According to Job Order records posted by the Department of Labor’s Employment and Training Administration on July 5, 2018, the Mar-A-Lago Golf Club seeks 40 H-2B visas for servers and 21 H-2B visas for cooks. According to the filing, the cooks will be paid at least $13.31 an hour and the servers at least $12.68 an hour.

During the Presidential campaign in 2016, President Trump defended the golf club’s practice of recruiting foreign employees, on the basis that Mar-A-Lago golf club found it difficult to recruit US staff to short-term positions at the golf club spanning 5 months or less.  However, such a move will no doubt spark astonishment, given President Trump’s vocal support for the “Buy American, Hire American” Executive Order and, indeed, his use of the Executive Order to justify proposals to curtail the H-1B visa program.

 

Davies Legal Immigration

At Davies Legal, we offer a “one stop shop” for all of your U.S business immigration needs. Our team of Attorneys, Masters of Business Administration and Certified Public Accountants offer a fully flexible service, tailored to the needs of your business. We offer a transparent fixed fee pricing structure and undertake to provide the highest standards of client care. Call now for a complimentary assessment of eligibility by telephone and for a free, no obligation quote.

Published: 22nd August 2018