From PLI’s Course Handbook

40th Annual Immigration & Naturalization Institute

#11436

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12

visas for trainees: H-3 and J-1

Deborah J. Notkin

Barst & Mukamal LLP

DEBORAH J. NOTKIN, born Chicago, Illinois.

Admitted to practice: 1987, New York; 1989, U.S. District Court, Eastern and Southern Districts of New York

LawSchool:New YorkLawSchool, J.D., cum laude, 1987.

College:RutgersUniversity, B.A., 1979.

Member: American Immigration Lawyers Association since 1987; Lecturer: American Immigration Lawyers Association, 1992-present; Practicing Law Institute, 1994-2000; New York State Bar Association, 1994-2000; Federal Bar Association, 1994; American Immigration Lawyers Association, AILA-N.Y.; Chairperson, INS Eastern Regional Liaison Committee (1991-1992); Co-Chairperson, INS Eastern Regional Liaison Committee, 1994-1995); Vice-Chair, INS Headquarters Liaison Committee, 1996-1997; Vice-Chair, National Labor Liaison Committee, 1998-1999; Co-Chair, National Labor Liaison Committee, 1999-2000; Listed in Best Lawyers in America and International Who’s Who of Corporate Immigration Lawyers; Recipient of the James L. Kibbey Award for Excellence in Commercial Law; Board of Governors, AILA, 1997-2000; AILA-National Treasurer, Executive Committee, 2000-2002; Second Vice President, 2002-2003. National President for American Immigration Lawyers Association for 2005 -2006. AILA Liaison to the ABA Immigration Committee – 2006-2007, “Chair, AILA’s Essential Worker Committee, 2007-2008, Chair, AILA’s Interagency Liaison Committee, 2007-2008. Frequent media spokesperson for immigration reform.

Biography: Recipient, Professor James P. Kibbey Memorial Award for Excellence in Commercial Law. Author: "The Q Visa: An Under Utilized Option", Vol. II, Immigration and Nationality Law, 1993; "Nonimmigrant Visa Options For The Restaurant Industry", Vol. II, Immigration and Nationality Law; "Servicing Corporate Clients," Vol. II, Immigration and Nationality Law, 1994; Excellence in the Employment - Immigration Context: "A Matter of Degree," Vol. 14, Immigration Law Report 241, October 15, 1995; "The Q Nonimmigrant Category for International Cultural Exchange," Vol. 13, Immigration Law Report 145, July 1, 1994. Co-Author, "Defining 'Temporary' in H-2B Cases," Vol. II, Immigration and Nationality Law, 1992. Lecturer: Immigration Law and Practice, American Immigration Lawyers Association, 1992-2007; Practising Law Institute, 1994-2007; New York State Bar Association, 1994-2005; Federal Bar Association, 1994.

Visas for Trainees: H-3 and J-1

Two visa categories are available for employers wishing to bring aliens to the U.S. on a temporary basis to receive job specific or on-the-job type training. Both categories allow an employer to provide employment to an alien that is incidental and necessary to the training provided, however, both specifically state that their main purpose is not, and cannot, be providing productive employment to an alien. The H-3 visa program, administered by USCIS, is a short term visa intended to allow aliens to obtain training from petitioning employees in the U.S. that will aid the alien in his or her pursuit of a career in their home country. The J-1 visa program, administered by the Department of State as part of its cultural exchange program, is intended to allow aliens to receive training and exposure in American techniques, business and culture, and to bring that experience back to their home country to share with their countrymen. While neither the H-3 or J-1 is a true substitute for either an H-1B or H-2 visa, both may prove useful to employers that would benefit from having trainee employees in the U.S. in the present and individuals experienced with the employer’s products, services, or way of doing business in the alien’s home country in the near future.

This article is intended to serve as an introduction to these two less common visas in order to provide the reader with enough information to determine if either visa is worth investigating for any particular case. It is not intended to serve as a step by step or how-to guide. For additional information and procedural requirements, please refer to the applicable statutes and regulations.

The H-3 Visa

I. Overview

The H-3 classification is available for aliens coming to the U.S. to engage in training by U.S. organizations that is generally not available in their home country and which will aid them in their pursuit of a career outside of the U.S. It should be noted that the H-3 classification is not available for foreign medical graduates, as the program excludes post graduate medical training or education.[1] However, under specific circumstances, the H-3 classification is available to medical externs and nurses.[2] There is also a special H-3 classification available for participants in special education training programs that is not subject to many of the restrictions on H-3 visas, however, the number of visas available under this category is limited to 50 per year.[3]

An H-3 visa may be granted for a period of no more than 24 months (18 months for special education H-3s)[4]. For H-3s approved for less than the full validity period, extensions are possible. However, once the 18 or 24 month cap is reached, an H-3 visa holder may not be granted a change or extension of status unless they have been physically outside the U.S. for a minimum of 6 months.[5] Further, the regulations do not provide for extension of H-3 status past the 18 or 24 month period of validity, although they do not appear to preclude the filing of a new H-3 petition so that an alien may obtain different training with the same or a different petitioner.[6]

II. Requirements

In order to obtain H-3 classification for an alien, a petitioning employer must demonstrate a number of things. As an initial matter, the alien must be coming to the U.S. to participate “in a training program that is not designed primarily to provide productive employment” for the alien.[7] The training to be provided to the alien must be training that is not readily available in the alien’s home country.[8] The employer must also show that the beneficiary “will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed.”[9] Further, the petitioning employer must show that the beneficiary will not engage in productive employment unless it is “incidental and necessary to the training.”[10] Finally, the petitioning employer must show that the training will benefit the beneficiary in pursuing a career outside the U.S.[11]

Additionally, a petitioning employer must establish a formal training program. Each petition must contain a description of the training program which describes the type and structure of the training and the supervision to be given the alien; the amount of time that will be devoted to productive employment by the alien; the number of hours that will be spent by the alien in formal classroom training and on-the-job training; the potential career abroad for which the training will prepare the alien; the reason why the training is not available outside the U.S.; the source of any remuneration to be paid to the alien; and any benefit obtained by the petitioning employer as a result of providing the training.[12]

There are numerous restrictions on the H-3 visa category. The H-3, while allowing the alien to be engaged in employment that is incidental or necessary to training, is explicitly not intended to provide an alternate means of filling an employer’s demand for labor within the U.S. As such, training that is intended to recruit or train aliens who will ultimately become part of an employer’s temporary or permanent U.S. workforce is prohibited.[13] As a result, training that is not likely to aid an alien in the advancement of his career in his home country (or otherwise outside the U.S.), and training of aliens that already possess substantial experience or expertise, is also prohibited.[14] It should also be noted that petitions will be denied if they seek to use the H-3 visa as a way of extending the total allowable period of practical training previously authorized for an alien as a nonimmigrant student;[15] if the petitioning employer cannot demonstrate that it has the physical premises and manpower necessary to implement the proposed training program; where the training is incompatible with the petitioner’s business; or where the proposed training program is too vague, lacks structure and a fixed schedule, and has no objectives or means of evaluation.[16]

Also significant is the fact that an alien who has been present in the U.S. in H-3 status must reside abroad for a period of six months before they are eligible for a new H-3 visa or change of status.[17] This requirement does not apply where the alien is present in H-3 status on a seasonal or intermittent basis, or present for an aggregate period of six months or less.[18] If a training program is for a period of less than two years, the alien’s H-3 status may be extended for further training if required by the program.[19] However, if the alien is present in H-3 status for more than six months (or not on a seasonal or intermittent basis) he or she will have to remain outside the U.S. for six months before applying for another H-3 visa.[20] Additionally, the same holds true where the alien seeks to enter the U.S. with an H or L visa.

Is should be noted that the H-3 visa category is not a dual intent category.[21] Spouses and minor children of aliens in H-3 status may accompany or follow to join the principle alien.[22]

III. Application

Due to the numerous restrictions on the H-3 visa category, it is likely to appeal mainly to employers with overseas markets for its products or services, or with current or planned overseas operations. For instance, a company with plans to launch a new product or service in a foreign market is in a position to benefit from having trained individuals in that market to sell and service the product. Such individuals need not be employed by the company in the foreign location in order to facilitate the use and spread of the company’s products in that market. However, providing training to an alien with the intention of employing him in his home country would also be a legitimate purpose, provided that the employer could demonstrate that the training could not be provided in the foreign location.

IV. The Special Education Exchange Visitor Program

Although this sub-category of the H-3 visa is limited in scope by virtue of the fact that only 50 are available each year, it is worth discussing, if only for humanitarian reasons. This unique visa is not subject to most of the H-3 requirements.[23] It is available specifically for aliens participating in a structured program that provides practical experience and training in the education of children with physical, mental or emotional disabilities.[24]

An H-3 petitioner must be a facility with a professionally trained staff that offers a structured program for providing education to children with disabilities and for providing training and hands on experience for participants in the special education exchange visitor program.[25] Participating aliens must possess a bachelor’s degree or higher in special education, or nearing completion of such a degree, or have extensive previous experience and training in teaching disabled children.[26]

A training program under this provision is limited in duration to 18 months, and is presumably subject to the six month foreign residence requirement.[27] However, none of the more stringent H-3 requirements apply. Custodial care of any children must be incidental to the training.[28] However, the petitioner does not need to demonstrate that it would not ordinarily use U.S. employees in the position, or that the training is not available outside the U.S. The petitioner also need not demonstrate that the training will aid the alien in pursuing a career outside of the U.S., that the training is not intended to recruit or train future members of the petitioner’s U.S. workforce, or even that it will not result in productive employment that is not incidental to the training.

The J-1 Visa for Trainees and Interns

I. Overview

The Exchange Visitor Program, administered by the Department of State, has recently undergone substantial regulatory changes. Many of these changes focused specifically on the J-1 visa category for trainees. The new regulations, promulgated in the form of an interim final rule, took effect on July 19, 2007, and were published at 72 Fed. Reg. 33669 (June 19, 2007). The new regulations establish a new internship program and re-define many of the eligibility requirements for trainees and sponsors. These requirements are discussed below.

In addition to several types of exchange visitors that are not relevant to the present discussion, the J-1 visa category provides a visa for interns and trainees coming temporarily to the U.S. to participate in training programs run by program sponsors designated by the Department of State. The purpose of these programs is “to enhance the skills and expertise of exchange visitors in their academic or occupational fields through participation in structured and guided work-based training and internship programs and to improve participants’ knowledge of American techniques, methodologies, and expertise,” as well as to promote understanding of American culture and society.[29] It is expected that participants will return to their home countries and share their knowledge and experiences with their countrymen.[30] The regulations expressly prohibit the use of such training programs as a substitute for ordinary employment.[31]

The Department has established eleven categories of employment in which training programs may be approved. These include: 1) Agriculture, Forestry and Fishing, 2) Arts and Culture, 3) Aviation, 4) Construction and Building Trades, 5) Education, Social Sciences, Library Sciences, Counseling and Social Services, 6) Health Related Occupations, 7) Hospitality and Tourisim, 8) Information Media and Communications, 9) Management, Business, Commerce and Finance, 10) Public Administration and Law, and 11) The Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations.[32] Sponsors may place participants in training programs only in the category for which they have received designation.[33] The distinction between specialty and non specialty occupations of the former regulations has been eliminated.

The new internship program is for recent and soon-to-be graduates of foreign post secondary academic institutions.[34] Internship programs have a maximum duration of twelve months.[35] It is important to note that interns may not be placed in positions in the field of aviation.[36]

The trainee classification is available to aliens who have a degree or professional certificate from a foreign post-secondary institution and at least one year of post graduate employment experience in their chosen field, or, five years of employment experience in their chosen field outside of the U.S.[37] In general, the maximum duration for a training program is eighteen months. However, for training programs in agriculture and in the Hospitality and Tourism category, the maximum duration is twelve months. Training programs in agriculture may last eighteen months if the additional six months consists of classroom training.[38] Flight training programs have a maximum duration of twenty four months.[39]

Trainees and interns under the J-1 program must spend two years abroad before participating in additional training or internship programs.[40] They also may be subject to the two year foreign residence requirement of INA § 212(e), which precludes certain J-1 visa holders from changing to H or L nonimmigrant status or adjusting to permanent resident status. This requirement may only be satisfied if the alien resides in his home country for an aggregate of two years, and is only waivable in certain circumstances.[41]

Training may be provided by sponsors, or by third party host organizations designated by a sponsoring organization.[42] This is significant because an employer need not be an actual sponsor in order to have a training program and host trainees. Interns and trainees may be paid by the sponsor or host for work performed as part of the training or internship program.[43]

II. Requirements

Analytically, the requirements for the J-1 visa program for interns and trainees can be divided in three parts: sponsor requirements, program requirements, and alien eligibility. The requirements for training and internship programs and alien eligibility are fairly straightforward. Sponsor requirements are somewhat more complex, and may be difficult for some employers to meet.

A. Program Sponsors.

Sponsoring organizations are designated by the Department of State. Sponsors may be government agencies, educational institutions, non-profit organizations or private companies.[44] Sponsor must be “citizens” under the regulations. Citizenship is determined based on the predominance of U.S. ownership of the entity and whether or not it is publicly traded on a U.S. market.[45] As previously noted, sponsors may only sponsor an alien for an internship or training program in the category or categories in which the sponsor has received designation from the Department. Sponsor training or internship programs must have at least five participants annually, though not necessarily placed with the same host organization.[46]

Sponsors must designate a Responsible Officer (RO), and are encouraged to designate one or more Alternate Responsible Officers.[47] The RO is responsible for administering the program, keeping records, and maintaining and issuing Forms DS-2019. The RO must be thoroughly familiar with the exchange visitor program and regulations. They must provide advice and assistance to program participants, conduct official communication with the Department of State, and act as a custodian for the Forms DS-2019 issued to the sponsor.[48]

The RO is charged with issuing DS-2019s, keeping appropriate records, and implementing the SEVIS program at the sponsor level. As such, the RO plays an integral part in the visa process. The RO is responsible for approving alien participants in training and internship programs, verifying participant eligibility, facilitating entry and re-entry of participants and their dependants, and providing required information to the Department of State.[49]

Sponsors may conduct their training and internship programs in house or may place participants at host organizations.[50] This is of great significance because, due to the complexity and potential burden of the requirements for sponsors, many organizations that could provide suitable training programs that benefit both the organization and the participants might be otherwise foreclosed from utilizing the J-1 program by the inability or unwillingness to become a designated sponsor. However, sponsors are responsible for screening and vetting host organizations and ensuring that they comply with program regulations. This includes conducting a site visit for new host organizations, ensuring that host organizations have the appropriate state workers compensation insurance, obtaining the host’s tax identification number, and requiring the host to provide a Dun & Bradstreet identification number.[51] Sponsors and hosts must have a written agreement detailing how the host will conduct the training program and comply with the supervision and evaluation requirements of the training program.[52] Hosts must sign the Form DS-7002 Training/Internship Placement Plan (TIPP).[53] The sponsoring organization retains ultimate responsibility for the training program and the host’s conduct of that program.[54]