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looks at a ski area’s season in 12-week increments. During Britain’s Loss is US Ski Industry’s Gain.” Past issues of the
each of these 12-week periods, the government requires Journal can be found at www.nsaa.com.)
that a person be paid for at least three-quarters of the 35
hours guaranteed, on average. Therefore, as long as your EAST VS WEST
mountain is paying someone for at least 28 hours per week By and large, our immigration legal practice sees simi-
during the course of employment, you will be compliant; lar requests for H-2B job positions for both Eastern and
however, businesses should strive to meet the full 35 hours Western ski areas. Job positions such as cooks, housekeep-
that you apply for to ensure that your petitions are contin- ers, cafeteria attendants, and custodians, and bussers are in
uously approved without issue. Fortunately, this 35-hour high demand across the country. The biggest regional dif-
rule does not apply to American workers under the “corre- ferences come in the form of lift operators and ski instruc-
sponding worker” rule like travel reimbursement (the pol- tors. In the East, we continue to see lift operators as the most
icy rationale is that American workers can be hired for sought-after H-2B visa position, in large part because of
part-time work). the difficulties ski resorts face in finding lift operators, and
Also, one option is to consider a broader job descrip- because resorts usually do not need to worry about the cor-
tion with a variety of job duties, like a “utility” all-pur- responding US worker travel requirement in these jobs. In
pose job category (as if applying for multiple jobs in one the West, despite the hurdles noted herein for ski instruc-
H-2B application)—with some key caveats. Having a tors, we have still seen ski areas sponsor highly certified ski
broader “utility” job position must be carefully scruti- instructors (PSIA Level II or Level III), because most resorts
nized (DOL has recent guidance on this), so this type struggle to find enough highly certified instructors. Western
of position must already be an existing mountain posi- destination resorts are much more capable of satisfying the
tion. This type of utility position with multiple job duties 35-hours requirement for their ski instructors compared to
would provide the ski area some flexibility for the guar- their Eastern counterparts.
anteed hours, but also could bring unwanted scrutiny A major trend seen in both the East and West is
during an audit, so work with an immigration attorney to four-season ski resorts applying for long-term (10-month)
understand this option. positions for cooks and housekeepers. For example, ski
areas apply for cooks to begin work around November,
EQUIPMENT have them work the busy winter season, and then remain
Another requirement under the H-2B visa regulations man- on staff through the spring and into the growing summer
dates that employers must pay for any equipment that a season. This long-season H-2B visa petition has brought
person needs to perform a job. In our practice, we have staffing relief to ski areas needing employees to work in
only seen this be an issue for ski instructors, where we the winter and summer, and is one the key advantages to
actually saw one H-2B visa worker demand that his resort using H-2B visas over J-1 visas (which, again, are limited to
purchase him new skis. It is possible that a ski area could four months).
provide equipment through your rental shop, but the
DOL guidance is somewhat ambiguous. Moreover, with CONCLUSION
nearly all ski instructors, they are often loyal to their per- While the regulations for H-2B visas are intentionally oner-
sonal equipment or brand, and bring it with them to the ous, they remain a surprisingly viable option for many ski
US because of their familiarity with their own equipment. areas across the country. The regulations may seem daunt-
Due to the equipment issue, the guaranteed hours, and the ing at first, but some of the strategies outlined here can save
corresponding worker challenges noted above, we always your ski area substantial headaches and costs, and make the
advise resorts to carefully consider using H-2B visas for ski use of H-2B visa workers increasingly affordable. Using these
instructors. techniques, the process can be straight-forward, streamlined,
Lastly, it bears mentioning that after Great Britain and relatively painless. The visas can result in real solutions
announced its decision to pull out of the European Union— to your mountain’s staffing struggles, provide a safeguard
as part of “Brexit”—the country’s 6,000 ski instructors against potential J-1 reform and, importantly, help maintain
would no longer be able to work at European ski resorts. the sanity of your human resources director.
They are now looking to the US and Canada to provide ski
instruction, but will need visas to work at American resorts. Keith Pabian is an immigration attorney based in Boston,
(Read about opportunities for hiring British ski instruc- Mass., with a national practice focused on the ski area and hos-
tors in the winter 2018 issue, “The Brexit Is Coming: Great pitality industries. He can be reached at keith@pabianlaw.com.