There
are many types of work permits, each with specific
requirements as to type of position, type of employer,
duration, etc. One of the most important steps in
the visa application process is to determine what
category/ies may be the most suitable, considering
the nature of the position, your background and
goals, and other factors. Given below are some common
positions and the appropriate visa categories for
those positions.
Chefs and Hospitality Management positions
The USCIS is inconsistent in classifying chef and
hospitality management positions and workers as
specialist or professional. Some visas are approved
for foreign nationals to work in large restaurants
and hotels that would be denied for their counterparts
in smaller establishments.
For example, an H-1B
visa may be approved for a chef to work at a five-star
restaurant but not for an upcoming restaurant with
a two star rating. As a result, these professionals
often must use B-1,
E-2,
H-2B,
H-3,
J-1,
L-1,
O-1,
Q-1,
or TN
visas or permanent
resident status to work in the U.S.
Chefs and hospitality management professionals can,
depending on the specific facts, use almost all
of the nonimmigrant work visas. This distinguishes
these occupations from others that are more limited
to specific visa categories.
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Chefs and Cooks
It is important for petitioners to accurately describe
cook and chef positions, as the Department of Labor
(DOL) publications distinguish between the two positions.
In general, chefs have more managerial responsibilities
than do cooks, who primarily prepare food.
E-2
visa: Chefs holding managerial or specialist
positions may be issued E-2 visas to work for a
qualified E-2 enterprise. For example, a large Japanese-owned
restaurant chain such as Benihana may employ a number
of Japanese chefs using E-2 visas. A small E-2 qualified
restaurant also may justify employment of a chef
in a managerial or specialist position. Chefs who
start their own restaurants are often eligible for
E-2 status as principal investors.
H-1B
visa: In the past, the USCIS has held
that chefs were not professionals or specialists.
However, practice shows chefs employed by large
hotels and prestigious restaurants may be granted
H-1B visas. Usually, the foreign national must be
primarily engaged in management duties as opposed
to working in front of a stove. Expert testimony
from a culinary professor or hospitality management
academician is often needed to prove that the position
is so complex that it requires a person degreed
in culinary arts.
H-2B
visa: Chefs may qualify for temporary
positions during a busy season—for example, the
employer is a ski resort and the position is for
the winter season. Once the employer proves the
position is temporary or seasonal the employer will
be barred from sponsoring the foreign national for
a permanent
labor certification for that position.
J-1
visa: A young cook seeking exposure
to how a restaurant operates in the U.S. may obtain
a J-1 industrial trainee visa for up to 18 months.
Many organizations have J-1 programs specifically
accredited for training in the culinary arts.
L-1
visa: Chefs with management responsibilities
employed by multinational companies should be eligible
for L-1A visas. It is also possible that a specialized
knowledge chef or cook could obtain an L-1B visa.
For example, an international airline catering company
may have unique processes, technologies, and procedures
for preparing their food and delivering it to airplanes
such that an employee with specialized knowledge
is necessary.
O-1
visa: O-1 visas are available for chefs
of extraordinary ability. Extensive evidence is
required to show that the chef is a culinary artist
of ‘distinction’ who is ‘renowned, leading, or well-known’
in the field.
TN
visa: Chefs are not included in the
NAFTA Schedule of Professionals. Some chefs, however,
may work from time to time as management consultants
to advise on the design, building, opening, and
advertising of new restaurants, as well as the menu
planning. In this situation, a management consultant
TN visa may be granted to a Canadian or Mexican
chef.
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