Maybe the Restaurant Revitalization Fund replenishment will happen after all?

And the House receives a bill for a new visa class to help the restaurant industry's labour shortage

Apr 04, 2022

Despite the fact that I take a liking to all things digital, I still very much enjoy printed material, particularly when it comes to reviewing technical texts. Unfortunately, my printer doesn’t appreciate the amount of work I asked of it this weekend when I sent two bills into the printing queue.

The proposed bills that I reviewed this weekend cover the following:

Small business pandemic aid relief, which includes additional dollars for the Restaurant Revitalization Fund
Introducing a new visa class, which can be used by restaurants

Let’s get started, shall we?

Another crack at the Restaurant Revitalization Fund

Released on Friday afternoon, the House is expected to vote this coming week on a relief package targeted at small businesses. Per Roll Coll, the Rules Committee will meet on Tuesday afternoon, which means that we should hear an answer fairly soon.

Lindsey McPherson @lindsemcpherson

NEW: The House is expected to vote next week on a small business pandemic aid package that would appropriate $42 billion for additional restaurants relief and $13 billion for other “hard hit” industries. Story to come. Bill text here:

The bill proposes earmarking $42B for the Restaurant Revitalization Fund, supplementing the original $28.6B. In terms of how the number was derived, we can look at the Independent Restaurant Coalition’s remark that over $75B was requested for 370 000+ applicants. The total number from this potential round and the original disbursement brings us up to $70B in funding for the program and the remaining 265 000 businesses who didn’t receive anything from the initial round.

Not all of the $42B will be for restaurants and similar food businesses, though. Carveouts have been made totaling $442.5M for program dues, which include but are not limited to: administrative expenses; the Inspector General; investigative and prosecutorial activities related to fraud and abuse; and audits of grants. Still, $41.5B is a much bigger chunk of change that we could’ve anticipated to be proposed at such a late point in the game.

The way the bill is written makes an assumption that this will be the second and final round of funding for the program—who will not be accepting new applicants at this point in time. There is a provision in the bill that in the event there is not enough funding to provide applicant their requested amount, the Small Business Administration (SBA) will have to pursue one of the following solutions:

Reduce the grant of each eligible business by an equal percentage;
Establish a maximum amount for a grant, ensuring that all smaller asks have been fulfilled in their entirety; or
Provide all rewards in full below a certain threshold, and reduce grants about said threshold by an equal percentage

In addition to the measures above, the SBA may also provide partial rewards to start to ensure that all eligible applicants can be funded before they can, available dollars permitting, start distributing remaining dollars.

For those that receive a denial, there is now an opportunity for applicants to have their application reconsidered. Further, denials will receive a brief explanation identifying the reason as to why the SBA could not provide the requested funding.

Given that it’s been quite some time since businesses applied for the Fund and some may have unfortunately gone out of business, applicants who are in line for this round of funding will have to attest that they are either still operating, or intend to reopen within six months of submitting said attestation.

And for the FOIA-happy folks, like myself, there will be mandated reporting by the SBA on both a biweekly and weekly basis.

Biweekly
- Number of applications received, reviewed or in the process of reviewing, and received decisions
- Number of grants and dollar amounts that have been awarded and disbursed
Weekly
- Details of those that have received grants: name of business; address; amount of grant; and business category

Let’s remember, though, that even if the bill passes the House, we still have the Senate to contend with. So, we will see what comes of it all over the coming week.

Proposal for a new visa class: H-2C

Introduced by Rep Lloyd Smucker (R-Pa.) last week, H.R. 7239 seeks to amend the Immigration and Nationality Act by adding the H-2C nonimmigrant classification with the intent that this visa class will help with the current labour shortage. The Act has been dubbed as the “Essential Workers for Economic Advancement Act” (EWEA).

Apart from coverage that includes the National Restaurant Association’s (NRA) fervent support (see examples 1, 2, and 3), I haven’t seen a lot written about this proposed program. So, I figured I’d take a dive into the literature and weigh in.

This visa caters to employers whose industries “have comparatively low sales per employee” (i.e. industries that rank in the lowest ten when dividing number of sales by number of employees in the census’ dataset). I couldn’t figure out for the life of me how to replicate the data, so I will have to take the NRA’s word here that the restaurant industry is included as a participating industry.

In order to be a “registered employer” in the program, the business must be registered and approved by the Secretary of Homeland Security. Each potential employer must estimate how many H-2C nonimmigrants the employer will seek to employ annually. Also, the county or metropolitan area from which the employer is based must have an unemployment rate of ≤7.9% during the fiscal quarter they submit an application; this requirement is otherwise known as “full employment area”. If approved, all eligible H-2C positions are to be made available on a website maintained by the Secretary of Labor and with the workforce agency of the state where the position is located.

The eligible non-agricultural occupations are designated by the Occupational Information Network Database (O*NET), and are categorized by “Zones”, referring to levels of preparation (i.e. education, experience, training) needed for such a position. The H-2C will only be available for positions that fall under Zones 1–3, which for the restaurant industry include the following examples:

Zone 1 (little or no preparation): barista; fast food cook; dishwasher; food preparation worker
Zone 2 (some preparation): bartender, cashier, institution and cafeteria cooks, restaurant cooks, short order cooks, first-line supervisors of food preparation and serving workers, food cooking machine operators, batch makers, food service managers, hosts and hostesses
Zone 3 (medium preparation): chefs, head cooks, private chefs

While the above positions may not need a college education, it is important to note that any occupation that is listed in the Occupational Outlook Handbook (published by the Bureau of Labor Statistics) as requiring a bachelor’s degree or higher level of education is not an eligible occupation for this visa.

The duration of the initial granted visa is three years. The status can be renewed for up to two more additional consecutive periods of three years at a time.

Portability (i.e. changing positions within the same visa class) is permitted so long as the H-2C holder has been with the initial sponsoring employer for one year. If the H-2C nonimmigrant is unemployed, they are allowed up to 45 consecutive days of presence within the United States to either obtain new employment or to prepare for departure.

The program’s current capacity allows for 65 00 persons during its first fiscal year, with the number going up as high as 85 000 or as low as 45 000 annually in subsequent years. The calculations on how this program scales up or down its allotment involves a demand-based calculation that can be easily followed. I’ll spare everyone the list of scenarios in which the numbers go up and down.

For the most part, this program sounds fine in terms of what it seeks to accomplish: providing a workforce for industries that are facing low profit margins and labour shortages. However, what confounds me about this program, though, are two things:

Does not allow for dependents to be brought with the H-2C worker
Does not appear to be dual intent

Normally, in order to bring over a dependent, paperwork must reflect that the sponsored worker is able to cover the dependents financially. And if wages for Zones 1–3 were not necessarily conducive to financial coverage, the dependents’ applications would speak for themselves and be denied by USCIS thereafter. There is no need to outright explicitly prohibit family members and dependents from joining program participants. The H-class (H-2A and H-2B) has traditionally not had dependent visas because of their seasonal nature. However, I would contest that the H-2C is markedly different with its initial three-year term, and its lack of dependency on season or pattern for employment.

Not surprisingly, since dependents are not allowed to be brought over under H-2C status, there will be no eligibility for child tax credits. However, the bill goes out of its way to stipulate that if there is a joint return, comprised of two H-2C nonimmigrants, the spouses still would not be eligible.

Single intent and dual intent are terms that refer to how long a non-U.S. international intends to stay in the U.S. I use the term nonimmigrant a lot in reference to the H-2C, in part because it is literally written in the bill, and also because it expresses the single intent. In other words, “nonimmigrant intent” means that the foreign national has no intention on staying in the U.S. in the longterm and will return to their home country after their status expires. Dual intent visas can carry the nonimmigrant intent, as well as the intent to one day start the immigration process for permanent residency. The H-1B, for example, is a dual intent visa, permitting employers to start the process for employer-sponsored green cards.

So, by coupling the outright prohibition of dependents with having a visa status that carries both a nonimmigrant intent and working term of up to nine years is untenable. Yes, folks on an H-2C visa can be promoted and see upward mobility in their jobs, but that’s not the point. By not offering a straightforward pathway to employment-based immigration, we are pushing these folks to: return to their home country after almost a decade of labour; hoping they find love and marry a U.S. citizen; or pushing them to another visa program that does carry dual intent. Unfortunately, with the H-1B still having caps that are more often than not shuttle its applicants into a lottery system, it is not such an easy fix. By setting up such a program where opportunity is compromised at the outset, and continues to be hampered by an outdated immigration system, we are not setting up anyone for success here. Immigrants are not to be used and tossed out; they should be invested in, especially given how much they’ve invested their lives here in the U.S.

Chortle Chortle

Discussion about this post