By: Damian P. Conforti and Bryan Cavallaro
Important points to serve up first:
- Immigrant labor is essential to the hospitality workforce, making compliance with immigration and employment laws a critical business priority.
- I-9 compliance is under intensified scrutiny, and even minor technical errors can result in significant fines.
- Strict record retention rules apply, and employers must maintain completed I-9s for specific periods of time depending on length of employment.
- Supplemental H-2B visa availability has been dramatically reduced, and since January 17, 2025, petitions can be denied for certain labor law violations—making meticulous compliance essential.
- J-1 visas remain a stable, valuable staffing option, offering employers access to a large pool of exchange visitors amid broader immigration enforcement pressures.
It is estimated that hospitality employers hire non-US citizens for one-third of the hotel and lodging positions, and one-fourth of food service industry positions. There is no doubt that hospitality businesses and their immigrant employees are facing significant challenges as the current administration intensifies its focus on immigration enforcement. Still, business owners that work directly with knowledgeable attorneys, ensuring they have the appropriate information at their disposal, can significantly reduce the risk of incurring substantial fines or facing even more severe penalties. Following are key tips to get you started.
Employment Eligibility Verification (Form I-9)
New York and New Jersey hospitality companies must comply with federal employment eligibility verification requirements by properly completing and retaining Form I-9 for every employee hired in the United States after Nov. 6, 1986, regardless of citizenship or immigration status. Given the steady focus on immigration enforcement, I-9 compliance is more essential now than ever before. Federal enforcement agencies can issue fines even for technical issues, such as missing signatures or late completion.
Businesses must not discard a current employee’s Form I-9 or any copies or electronic images of the supporting documents. These records must be retained for the entire duration of the individual’s employment and for a specified period after their employment ends.
For example, if the employee worked for less than two years, retain their form for three years after the date you entered in the First Day of Employment field. If they worked for more than two years, retain their form for one year after the date they stopped working for you.
Hospitality Staffing and H-2B Visas
Recent reporting suggests that the current U.S. Administration has nearly cut in half the number of available supplemental H-2B visas. The hospitality industry relies on H-2B visas to hire temporary nonimmigrant workers for seasonal or short-term positions. Essentially, petitioners must establish that there are not enough able, willing, and qualified U.S. workers to fill the positions, and that hiring the foreign employees will not erode the wages and working conditions of their U.S. employee counterparts.
After U.S. Citizenship and Immigration Services (USCIS) grants an initial H-2B for the authorized period, the visa may be extended in one-year increments, up to a maximum stay of three years. However, the three-year limit may be reset if the foreign national remains outside the United States for an uninterrupted 60-day period.
Now, more than ever, it is imperative for employers to maintain a clean compliance record. Since January 17, 2025, USCIS may deny H-2B petitions if a petitioner “has been found to have committed certain serious labor law violations or otherwise violated the requirements of the H-2A or H-2B program.” Effect of Prior Violation Determinations, uscis.gov.
Therefore, employers must be sure to strictly adhere to the terms and conditions of the authorizations, including job role limitations, work hours, and duration of employment. Misunderstanding or ignoring visa restrictions can jeopardize the employer’s business, and the employee’s legal status.
Hospitality Staffing and J-1 Visas
Another way hospitality employers can maintain an adequately staffed business is by utilizing J-1 visas. J-1 classifications, also known as “exchange visitors,” are granted to individuals who “intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.” Exchange Visitors, uscis.gov.
By capitalizing on the “Intern” and “Trainee” categories, hospitality employers can benefit from the more than 300,000 exchange visitors who enter the United States each year. Unlike H-2B visas, J-1 visas are administered by the U.S. Department of State, and applicants must first submit a Form DS-2019.
The good news is that, despite heightened attention on immigration and related policies, the J-1 visa program has remained relatively stable and fundamentally untouched.
If you need further information on this topic, see our article in Dive Magazine, or check out our “Four Steps to Remain Immigration Compliant” video. For assistance with a hiring issue or any hospitality-related matter, contact Damian P. Conforti or any member of Mandelbaum Barrett PC’s Hospitality Practice Group.