ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Chapter 5 - H-2 Visas for Temporary Workers and H-3 and J-1 Visas for Traininees
by Mark A. Ivener

H-2 VISAS: TEMPORARY WORKERS

  1. WHO IS ELIGIBLE
  2. The H-2 nonimmigrant visa is for temporary workers coming to the United States to fill positions which are temporary in nature. Such positions are usually linked with a specific time frame or contract, and will cease to exist as a job in the foreseeable future. The H-2A category applies to aliens coming to the U.S. to perform agricultural work of a temporary or seasonal nature. The H 2B classification is suitable for athletes or those in the performing arts who have not yet achieved international renown, and skilled workers in crafts and trades who are able to perform tasks for which no U.S. workers are available.

  3. HOW TO APPLY
  4. Obtaining an H-2B visa is a two-step process. To begin the process, a U.S. employer must submit an application for temporary labor certification to the U.S. Department of Labor (DOL). DOL reviews the application to ensure that there are no adverse effects on the U.S. domestic labor market. They will issue, either, a temporary labor certification or a notice that such a certification cannot be made. A Form I-129 with supporting documentation is then filed by the U.S. employer with the INS Regional Service Center having jurisdiction over the city of the intended place of employment. Once the INS approves the H-2 petition, they forward the approval to a U.S. Consulate to have the visa stamped in the alien's passport.

  5. DOCUMENTATION REQUIREMENTS
  6. The documentation that is required to be filed with the I-129 petition varies depending on the H-2 sub-category in which the alien is seeking to provide temporary services.

    For those individuals seeking to perform temporary services as an H-2A in agricultural employment, the petition must be filed with the following documentation:

    1. A single valid temporary agricultural labor certification or, a copy of the Department of Labor's denial of a certification, and evidence that qualified domestic labor is unavailable; and
    2. Copies of evidence that each alien named in the petition meets the minimum job requirement stated in the certification when it was applied for.

    For those individuals seeking to perform temporary services in an H-2B capacity, the petition must be filed with the following documentation:

    1. A temporary labor certification from the U.S. Department of Labor (DOL) indicating that qualified U.S. workers are not available and that employment of the alien will not adversely affect the wages of working conditions of similarly employed U.S. workers; or
    2. A notice from DOL that such certification cannot be made, along with evidence of the unavailability of U.S. workers, documentation of the prevailing U.S. wage rate, and evidence overcoming each reason why the certification was not granted; and
    3. Copies of evidence, such as employment letters and/or training certificates, documenting that the alien met the minimum job requirements stated in the certification when the labor certificate application was submitted to DOL.

  7. DURATION OF THE VISA
  8. An H-2B visa is granted for the validity of the labor certification, or for an initial period of up to one year. The H-2 visa holder's total period of stay may not exceed three years. If H-2 visa holder has remained in the U.S. for the maximum period of time, as stated above, he/she may not seek a change of status. extension, or readmission to the U.S. until he/she has resided outside of the U.S. for a period of six months.

  9. STATUS OF SPOUSE AND MINOR CHILDREN
  10. A spouse or unmarried child of an H-2 visa holder is entitled to an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.

H-3 VISAS: TRAINEES

  1. WHO IS ELIGIBLE
  2. The H-3 visa is for an alien coming to the United States to receive training from an employer in any field other than graduate education or training. This covers a specific course of job-related training that has been planned in the United States which may include employment incidental to the training period.

    When an application is made in this category, the employer must state that the training is not available in foreign nationals, and why it is necessary for the alien to take training in the U.S.

    "Special Exchange Visitors" may also apply for nonimmigrant visas under the H-3 category. A "Special Exchange Visitor" is one who seek to enter the U.S. to gain practical training in educating children with physical, mental, or emotional disabilities. The alien must have a foreign residence they have no intention of abandoning, and they may stay in the U.S. for up to eighteen months. Only 50 aliens per year may enter the U.S. in the Special Exchange Visitor category.

  3. HOW TO APPLY
  4. The Form I-129 visa petition must be submitted by the U.S. employer to the INS Regional Service Center that has jurisdiction over the place of intended employment.

  5. DOCUMENTATION REQUIREMENTS
  6. The documentation that is required to be filed with the I-129 petition varies depending on the H-3 sub-category in which the alien is seeking to obtain training. For those individuals seeking to obtain training in a special education training program, the petition must be filed with the following documentation:

    1. A description of the training, staff, and facilities;
    2. Evidence that the program provides special education to children with physical, mental, or emotional disabilities, and that any custodial care of the children is only incidental to the training program;
    3. Details of the alien's participation in the program;
    4. Documentation that the alien is nearing the completion of a baccalaureate degree in special education, already holds such a degree, or has extensive experience in teaching children with physical, mental, or emotional disabilities.

    For those individuals seeking to obtain training from an employer in any other field (other than graduate education or training), the petition must be filed with the following documentation:

    1. A detailed description of the structured training program, including the number of classroom hours per week, and the number of hours of on-the-job training per week;
    2. A summary of the prior training and experience of the alien; and
    3. An explanation of why the training is required, whether similar training is available in the alien's country, how the training will benefit the alien in pursuing a career abroad, and why the employer is willing to incur the cost of providing the training without significant productive labor.

  7. DURATION OF THE VISA
  8. An H-3 visa for an alien trainee may be valid for a period of up to two years. An H-3 visa for an alien participant in a special education training program may be valid for up to 18 months. If H-3 visa holder has remained in the U.S. for the maximum period of time, as stated above, he/she may not seek a change of status, extension, or readmission to the U.S. in H or L status until he/she has resided outside of the U.S. for a period of six months.

  9. STATUS OF SPOUSE AND MINOR CHILDREN
  10. A spouse or unmarried child of an H-3 visa holder is entitled to an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.

J-1 VISAS: EXCHANGE TRAINEES

The Department of State rather than the Immigration and Naturalization Service ("INS") administers the J-1 visa program which was implemented in 1961 by the Fullbright-Hays Act to promote educational and cultural exchange. In order to obtain a J-1 visa for an employee, a company must either become designated by the Department of State as a J-1 visa program sponsor or initiate an application through an approved third party training sponsor organization.

Applying for Department of State authorization as a program sponsor may well be worthwhile for large publicly traded corporations, however as a practical matter it will not solve an immediate Human Resource need because it is a lengthy and complex process. On the other hand an application through an existing third party training sponsor organization will often allow a company to hire a foreign employee in as little as two weeks which is significantly quicker than if an H-1B application was made for a qualifying employee through the INS.

The first step is to find an appropriate third party training sponsor. There are dozens of organizations that are authorized by the Department of State to act as a third party sponsors of J-1 training programs. These organizations review and approve the application and training program of a proposed employer and issue Form IAP-66 which is a Certificate of Eligibility for J-1 training. Each of the third party program sponsors have different requirements, filing fees and procedures. Almost all third party sponsor applications require that the employer submit a detailed training program. The training program must spell out in explicit detail the type and chronology of training which will be accomplished, even if it will take place through on-the-job training.

Third party sponsors can take as little as 2 weeks to review and approve J-1 applications and training programs. Ultimately when the application is approved, the third party sponsor will send Form IAP-66 to the employee abroad. The employee then submits the Form IAP-66 to the US Consulate in his or her home country and obtains the J-1 Visa. Processing times are generally from 1 day to 1 week, depending on the US Consular post where the visa application is made. Canadians and Canadian landed immigrants who are nationals of British Commonwealth countries are visa exempt and are not required to obtain the visa at a US Consulate. These visa exempt individuals merely submit Form IAP-66 and proof of nonimmigrant intent to the INS officer at the time of admission to the United States.

  1. MINIMUM QUALIFICATIONS
  2. Unlike the H-1B visa, wherein the basic minimum qualification is a Bachelor's Degree related to the area of employment, the minimum requirements for a J-1 training visa vary according to the requirements of the individual third party training sponsor organization. While some do require that applicants have at least a Bachelor's Degree, many require only a High School Diploma or a minimum amount of experience in the field. Most but not all third party sponsors have age guidelines. It is common to see age guidelines such as, "age 20 to age 35", however in most cases these age guidelines are somewhat flexible depending on the other factors involved in the application.

  3. NONIMMIGRANT INTENT
  4. Since the J-1 visa is a nonimmigrant visa, applicants must demonstrate that they have a residence abroad which they do not intend to abandon. As is the case with the F-1 student visa or the B-2 visitor visa, applicants for a J-1 visa must prove to the US Consulate that they have strong enough family, economic and social ties to their own country that they will not immigrate to the United States, but will depart the United States when the training program is completed. As a practical matter, nonimmigrant intent can generally be demonstrated by obtaining an offer of future employment from a company in the alien's home country abroad commencing at the time the US training is completed.

  5. BENEFITS
  6. The spouse and single children (under 21) of a J-1 principal applicant are also able to come to the United States on J-2 visas for the period of the J-1 training program. One benefit of the J-1 visa is that the spouse may obtain Employment Authorization through the INS by submitting Form I-765. However a J-2 alien spouse may only use his or her income to support the family's customary recreational and cultural activities and related travel among other things. The INS will not authorize employment for J-2 dependants if the income is needed to support the J-1 principal alien.

    While the employment of the J-1 principal is limited to the employer as set forth in the application made to through the third party sponsor, the employment authorization offered to a J-2 dependant permits employment in the open market. The J-1 visa is the only nonimmigrant visa which allows employment of dependants.

    Another benefit of the J-1 visa is that J-1 employees are exempt from FICA withholdings. 7.65% of the earnings of US employees and holders of other nonimmigrant visas is withheld from all earnings for Social Security and Medicare. In addition the employer pays another 7.65% for a total of 15.3% of the employees total wages. The withholdings drop to 1.45% from the employee and 1.45% paid by the employer after an employee has earned $72,600.00 in any given year. Therefore, if a trainee is paid $40,000 per year, the employer and the trainee would each save $3,060.00 per year just because the trainee is in the US on a J-1 Visa rather than an H-1B visa or $4,590.00 over the life of the 18 month training program, a total savings of $9,180.00 through the use of the J-1 visa.

  7. SOMETHING TO WATCH OUT FOR - THE TWO YEAR HOME RESIDENCE REQUIREMENT
  8. Nationals of certain countries who will be obtaining training in areas listed on the Department of State's "skills list" are not allowed to change to any other nonimmigrant status in the US or immigrate to the United States until they have returned to their home country for two years. The skills list is organized by country and contains several skills groups, each of which contain numerous categories of skills. Because of the difficulty of obtaining a waiver of the two year home residence requirement, it is important to check the skills list before applying for the Certificate of Eligibility. Most European and Asian countries do not fall under the skills list.

    While the J-1 visa is not well known, it should be considered in situations where it is not practical or possible to obtain an H-1B visa for a foreign hire. While the 18 month term is shorter than the 36 month term of the H-1B visa, the J-1 can be obtained relatively quickly and the requirements for obtaining a J-1 visa are less stringent than for an H-1B visa.


About The Author

Mark Ivener has been practicing law in Los Angeles for 30 years. He has lectured on U.S. immigration law for the World Trade Institute in New York, Houston, Chicago, and San Francisco. He has also lectured for the International Bar Association in Munich, Madrid, and New York. Mr. Ivener has participated in many immigration seminars for the Law Societies of British Columbia and Alberta and the American Immigration Lawyers Association.

He has authored the books, Handbook of Immigration Law, Volumes I and II [1980; 2nd edition, 1982; and 3rd edition, 1986; Online edition, 1999]; Doing Business in the U.S.A. Under Free Trade [1989; 2nd edition, 1990]; Get The Right Visa [1992; 2nd edition 1994]; A Complete Guide To Getting An American Visa (in Japanese) 1993; 2nd edition 1994; 3rd edition 1997]; and Have You Thought About Immigrating To The U.S.? (in Spanish) [1995]. He has also written many articles on immigration law which have appeared in the International Law Journal, the Canadian-American Bar Association Newsletter, Business and the Law and World Trade Trends.

Mr. Ivener is a founding member of IMMLAW, The National Consortium of Immigration Law Firms. Also, Mr. Ivener is listed in the Martindale-Hubbell Bar Register of Preeminent Lawyers.



• Jobs for immigrants    • Track your case online   
• Find a lawyer    • Immigrant's shop   

Share this page with a friend Share this page


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: