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H-3 Trainee visa may be an option for some who missed the H-1B cap

Posted on Tuesday, April 30, 2013

immigration attorney lawyer chicago h-1b lottery h-3 trainee h-4 uscis indiaThis year’s H-1B lottery, and the disappointment of many who missed the cap, has sparked a quest for other options for remaining in the U.S. until the FY 2015 cap opens in April 2014. One alternative available to most individuals is changing to or renewing F-1 status for full-time coursework toward a new degree. Another lesser-known option is the H-3 nonimmigrant visa for training with a petitioning organization.

The H-3 may be granted for up to two years, but if a person remains in H-3 status for the full two years, they must return to their home country for six months before returning in another H or L status. As with the H-1B, the spouse and minor children of an H-3 trainee are entitled to H-4 status. There is no cap on the number of H-3 petitions granted each year.

The purpose of the H-3 visa is to enable a foreign national to receive instruction and training. Productive, paid employment is allowed as long as it is incidental and necessary to the training. Factors such as a substantial salary or a long and repetitious training program consisting primarily of on-the-job training may lead to the denial of an employer’s petition.

immigration attorney lawyer chicago h-1b lottery h-3 trainee h-4 uscis indiaSince the work component of the training program is limited, and the employer is not required to pay the prevailing wage, H-3 trainees may need to supplement their compensation with personal funds. USCIS requires beneficiaries to demonstrate that they have sufficient financial support to prevent them from becoming a public charge.

The H-3 visa is particularly applicable to programs involving management training for multinational companies, programs allowing the nonimmigrant to gain further exposure to a company’s business with the goal of increasing business opportunities abroad, and training of joint venture partners to enable them to establish a similar venture in their own country.

immigration attorney lawyer chicago h-1b lottery h-3 trainee h-4 uscis indiaIf you are in a technical field, an H-3 might allow you to grow your skills in a way that would not be possible in a “heads-down” H-1B position. If you are in a business-related field, it could give you the opportunity to develop specific technical skills that would enable you to advance your career more rapidly in the future.

  1. Under the regulations, the petitioner for the H-3 beneficiary must clearly demonstrate that:
  2. The proposed training is not available in the beneficiary’s own country;
  3. The beneficiary’s position is not one in which citizens and resident workers of the organization are regularly employed;
  4. The beneficiary will not engage in productive employment unless it is incidental and necessary to the training; and
  5. The training will benefit the beneficiary in pursuing a career outside the U.S.

immigration attorney lawyer chicago h-1b lottery h-3 trainee h-4 uscis indiaH-3 candidates from rapidly-developing countries may be able to position themselves well to meet the 4th criterion. Professional employment opportunities and greatly improved quality-of-life have led many individuals to return to their country of origin after obtaining education and work experience in the U.S. Such knowledge and skill can greatly enhance a job candidate’s CV and increase his or her chances of landing a preferred position in their home country.

The immigration regulations are very strict with respect to the nature of the proposed training program, which must be described and documented in great detail. Such a program may not be approved if it:

  • deals in generalities with no fixed schedule, objectives, or evaluation methods;
  • is not in close alignment with the nature of the petitioner’s business;
  • is on behalf of a beneficiary who already has substantial expertise in the proposed field of training;
  • is in a field in which the knowledge and skill is unlikely to be used outside the U.S.;
  • is designed to recruit and train foreign nationals to eventually staff the petitioner’s operations in the U.S.;
  • involves productive employment beyond that which is incidental and necessary to the training; does not establish that the petitioner has the capability (including manpower) to provide the specified training; or
  • is expressly designed to extend the total allowable period of practical training for someone who was previously a foreign student in F-1 or J-1 status.

immigration attorney lawyer chicago h-1b lottery h-3 trainee h-4 uscis indiaBecause the H-3 visa has narrow eligibility criteria and a number of restrictions, it may not be an option for more than a few of those who were shut out of the H-1B cap this year. Nevertheless, for those who can qualify, it may work as a “bridging strategy” to a future H-1B, while offering substantial benefits in meaningful skill development and career preparation.

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