Immigration Law Associates
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Alternatives to H-1B Visas: J-1 Trainee Visa and H-3 Trainee Visa


The most common visa category used for temporary employment purposes is the H-1B visa. H-1B visas are counted and allotted each fiscal year with employment begin dates beginning on October 1. The H-1B visa filing period begins on April 1, or six months before an H-1B employee can begin work. As such, for an October 1 H-1B visa start date, a non-immigrant worker or employer should file the H-1B visa petition on April 1. However, it is extremely important to note that the U.S. Government caps the number of H-1B visas available each fiscal year. For example, H-1B visas for non-immigrant workers with bachelor's degrees or its equivalent are capped at 65,000, and H-1B visas for non-immigrant workers with graduate degrees from U.S. institutions of higher education are capped at 20,000. There are no H-1B caps for university employers, non-profit employers, and government research laboratories.

Finally, it is important to note that the H-1B caps are reached very quickly. In fact, the 65,000 cap this in 2007 was reached on April 2, 2007, within hours on the first filing date. Moreover, the 20,000 cap was reached quickly on April 30 of thatyear. As such, it is extremely important for companies to prepare and submit their H-1B petitions early, or explore other possibilities that would enable them to bring qualified foreign workers to the United States. Two such other alternatives to the H-1B visa are the J-1 Trainee Visa and H-3 Trainee Visa.


J-1 Trainee Visa

J-1 Trainee Visa is a category of J-1 Visas that are issued pursuant to the U.S. Exchange Visitor Program. The purpose of this program is to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. The Department of State website for information on the Exchange Visitor Program is: http://exchanges.state.gov/education/jexchanges. The length of stay for these programs varies, depending on the purpose of the exchange visit. At the conclusion of the Exchange Visitor Program, participants are expected to return to their home countries to utilize the experience and skills they have acquired while in the United States. In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates certain public and private entities to act as exchange program sponsors. Designated J-1 Program sponsor's can be found at: http://exchanges.state.gov/education/jexchanges/private.htm. Applicant's wishing to apply for a J-1 Visa generally apply directly through the designated sponsoring agency. After the sponsoring agency approves its application packet, it produces a DS-2019 form that the applicant brings with him/her to the J-1 Visa consulate interview.

In July of 2007, the J-1 visa regulations were substantially changed. The new regulations replaced the former "specialty" and "non-specialty" J-1 visa categories, with the new J-1 Trainee/Intern Visa category. 22 CFR § 62 (2007). Under the new regulations, a J-1 Trainee is eligible for a Visa to participate in the Exchange Visitor Program if they have either:

  1. a degree or a professional certificate from a post-secondary academic institution abroad and at  least 1 year of work related experience abroad,
  2. or

  3. 5 years of work related experience abroad

However, a J-1 Trainee Visa is not available for trainees in positions of unskilled or casual labor positions, where the trainee performs more than 20% clerical work, where the trainee provides therapy, medication, clinical care or medical care. If the applicant meets one of the requirements identified above, he or she may apply for the J-1 Trainee Visa through a designated organization via the Department of State's DS-7002 form. The form describes in detail the Trainee's training program and describes the company where the Trainee will train. The J-1 Trainee Visa programs can last for a maximum of 18 months. It is also important to note that each designated sponsor organization has its own fees, applications, and requirements.

J-1 Visa holders can work legally in the U.S. if employment is part of the approved program. Additionally, J-1 Visa holders can travel in and out of the U.S., or remain in the U.S. continuously through the completion of the training program. Also, dependents of J-1 Visa holders are eligible for J-2 Visas. J-2 dependents can also travel, receive work permits, and attend schools without applying for an F-1 Visa.

Finally, it is important to note that certain J-1 Visa holders are subject to a 2 year foreign residency requirement. As such, certain J-1 Visa holders cannot change their status to that of H, L, K, or lawful permanent resident (LPR) until they have returned to their home country for at least 2 years, or received a waiver of that requirement.


H-3 Trainee Visa

Another avenue for employers to bring qualified employees into the United States is via the H-3 Trainee Visa.  The H-3 Trainee Visa is a nonimmigrant visa which allows foreign nationals to enter the U.S. to receive training in an existing training program of a U.S. company. The H-3 trainee seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment. This category shall not apply to physicians, who are statutorily ineligible to use H-3 classification in order to receive any type of graduate medical education or training. The four conditions required for the H-3 Trainee Visa are:

  1. Training is not available in home alien's home country;
  2. The alien will not be placed in a position where U.S. Citizens and Legal Permanent Residents are normally employed;
  3. The alien will not engage in productive employment, unless incidental and required for the training; and
  4. The Training will benefit the alien in pursuing a career outside the United States.


It is important to note that there are restrictions on the training programs for H-3 Trainee Visa. A training program may not be approved which:

  1. Deals in generalities with no fixed schedule, objectives, or means of evaluation;
  2. Is incompatible with the nature of the petitioner's business or enterprise;
  3. Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;
  4. Is in a field in which it is unlikely that the knowledge or skill will be used outside the U.S.;
  5. Will result in productive employment beyond that which is incidental and necessary to the training;
  6. Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States;
  7. Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or
  8. Is designed to extend the total allowable period of practical training previously authorized to a nonimmigrant student.


If the applicant satisfies H-3 requirements, he or she may apply for the H-3 Trainee Visa to the USCIS on form I-129, Petition for Nonimmigrant Worker. H-3 Trainees can be admitted for a maximum of 2 years. They can also travel in and out of the United States. The H-3 Trainee is also permitted to bring in dependents on H-4 Visas. They are also permitted to change their status if they desire during their training program. However, the experience gained during the H-3 training period cannot be used to qualify for the H-1B visa. Finally, if the H-3 Trainee has used their full 2 years of status, they must exit the United States for at least 6 months prior to applying for H-1B status.

Without a close examination of an applicant's credentials and the company's short-term and long-term needs, it is difficult to recommend which visa category is most appropriate. Every case needs to be determined on its own merits. Therefore, those interested in brining foreign workers to the U.S., should consult experienced immigration attorneys before they make any serious decisions.

 

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