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The H-3 And J-1 Training Categories

by Gregory Siskind, Esq.

There are two major categories for individuals seeking training opportunities in the United States . The J-1 exchange visitor visa contains a subcategory reserved for trainees. And the H visa category has an H-3 classification for trainees as well. This article seeks to review the two categories and discuss the advantages of pursuing one visa type versus the other.  

What type of training opportunities are available for H-3 trainees?  

H-3 regulations provide for "instruction 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. Physicians seeking graduate medical training or education are excluded. An exception is available for physicians seeking an externship during a medical school vacation at a program approved by the American Hospital Association or the American Osteopathic Association. Nurses coming for brief training not available in their home country and benefiting an overseas employer are eligible. 

 

What are the requirements for an H-3 visa?  

USCIS regulations set four conditions and eight supplemental restrictions for H-3 cases:  

(1 )-- The proposed training is not available in the alien's own country;  

(2 )-- 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;  

(3 )-- The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and  

(4 )-- The training will benefit the beneficiary in pursuing a career outside the United States .  

(B)--Description of training program.  

 

The eight restrictions on training programs are the following  

A training program may not be approved which:  

(A)-- Deals in generalities with no fixed schedule, objectives, or means of evaluation;  

(B)-- Is incompatible with the nature of the petitioner's business or enterprise;  

(C)-- Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;  

(D)-- Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States ;  

(E)-- Will result in productive employment beyond that which is incidental and necessary to the training;  

(F)-- Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States ;  

(G)-- Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or  

(H)-- Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.  

 

What is the procedure for acquiring H-3 status?  

Like other "H" classifications, an H-3 applicant must file an I-129 petition and supporting documentation with the appropriate USCIS regional service center. In addition to addressing the conditions and restrictions noted above, a successful petition must  

(1 )-- Describe the type of training and supervision to be given, and the structure of the training program;  

(2 )-- Set forth the proportion of time that will be devoted to productive employment;  

(3 )-- Show the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;  

(4 )-- Describe the career abroad for which the training will prepare the alien;  

(5 )-- Indicate the reasons why such training cannot be obtained in the alien's country and why it is necessary for the alien to be trained in the United States ; and  

(6 )-- Indicate the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training.  

 

For how long can an H-3 be admitted?  

H-3 applicants can be admitted for up to two years.  

 

What type of training opportunities are available for J-1 trainees?  

"Specialty" and "non-specialty" occupations can qualify for J-1 training programs, but not people in unskilled occupations. DOS regulations define "specialty occupation" as follows:  

Specialty occupation means an occupation that requires theoretical and practical application of a body of highly specialized knowledge to perform fully in the stated field of endeavor. It requires completion of a specified course of education, where attainment of such knowledge or its equivalent is the minimum competency requirement recognized in the particular field of endeavor in the United States . Some examples of specialized fields of knowledge are public and business administration, agricultural research, architecture, engineering, computer and physical sciences, accounting, and print and broadcast journalism.  

DOS regulations define "non-specialty occupation" as follows:  

Non-specialty occupation means any occupation that is not a specialty occupation (q.v.). Non-specialty occupations range from unskilled occupations up to and including skilled occupations requiring at least two years training or experience.  

DOS regulations list the following as ``unskilled occupations'':  

(1) Assemblers

(2) Attendants, Parking Lot

(3) Attendants (Service Workers such as Personal Services Attendants, Amusement and Recreation Service Attendants)

(4) Automobile Service Station Attendants

(5) Bartenders

(6) Bookkeepers

(7) Caretakers

(8) Cashiers

(9) Charworkers and Cleaners

(10) Chauffeurs and Taxicab Drivers

(11) Cleaners, Hotel and Motel

(12) Clerks, General

(13) Clerks, Hotel

(14) Clerks and Checkers, Grocery Stores

(15) Clerk Typist

(16) Cooks, Short Order

(17) Counter and Fountain Workers

(18) Dining Room Attendants

(19) Electric Truck Operators

(20) Elevator Operators

(21) Floorworkers

(22) Groundskeepers

(23) Guards

(24) Helpers, any industry

(25) Hotel Cleaners

(26) Household Domestic Service Workers

(27) Housekeepers

(28) Janitors

(29) Key Punch Operators

(30) Kitchen Workers

(31) Laborers, Common

(32) Laborers, Farm

(33) Laborers, Mine

(34) Loopers and Toppers

(35) Material Handlers

(36) Nurses' Aides and Orderlies

(37) Packers, Markers, Bottlers and Related

(38) Porters

(39) Receptionists

(40) Sailors and Deck Hands

(41) Sales Clerks, General

(42) Sewing Machine Operators and Handstitchers

(43) Stock Room and Warehouse Workers

(44) Streetcar and Bus Conductors

(45) Telephone Operators

(46) Truck Drivers and Tractor Drivers

(47) Typist, Lesser Skilled

(48) Ushers, Recreation and Amusement

(49) Yard Workers  

Sponsors may NOT place trainee participants in positions which are filled or would be filled by full-time or part-time employees.  

 

What fields are eligible for J-1 training opportunities?  

J-1 programs may be approved in the following eleven fields:  

  • Arts and Culture;
  • Information Media and Communications;
  • Education, Social Sciences, Library Science, Counseling and Social Services;
  • Management, Business, Commerce and Finance;
  • Health Related Occupations;
  • Aviation;
  • The Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations;
  • Construction and Building Trades;
  • Agriculture, Forestry and Fishing;
  • Public Administration and Law;
  • Other (Specify).

 

Are there minimal educational requirements?  

Specialty training programs are for participants who have completed a four-year degree in their field or a recognized professional certificate. Non-specialty training programs do not require participants to have completed a degree. However, program participants must have at least two years of education, training or experience in the field in which they are to receive training.

   

How does one apply for J-1 trainee status?  

J-1 applicants must apply via the sponsorship of a J-1 training programs. A list of available J-1 training programs can be found online at http://exchanges.state.gov/jexchanges/. The entity where a J-1 applicant will be placed will typically file an application with a J-1 training program on behalf of the J-1 trainee.  

A J-1 program will provide a J-1 trainee applicant with a DS-2019 form which will accompany a non-immigrant visa applications submitted with additional supporting documentation to a US consulate.  

 

How long can J-1 trainees remain in their programs?  

Trainees can come for up to 18 months.  

 

What are the requirements for the sponsor?  

According to DOS, sponsors are directly responsible for all aspects of their program, including the selection, orientation, training, supervision, and evaluation of the trainee. Sponsors must ensure that:

  1. individuals and/or entities providing the training possess and maintain the demonstrable competence to provide the offered training;
  2. sufficient plant, equipment, and trained personnel are available to provide the training specified;
  3. prior to the start of the training program a detailed training plan that responds to defined objectives for each trainee or group of similarly-situated trainees is developed;
  4. skills, knowledge, and competence are imparted to the trainee through a structured program of activities which are supportive and appropriate to the training experience;
  5. continuous supervision and periodic evaluation is provided for each trainee.

 

Sponsors must also provide

  1. A written statement which clearly states the stipend, if any, to be paid to the trainee.
  2. The costs and fees for which the trainee will be obligated.
  3. An estimate of living expenses during the duration of the trainee's stay.
  4. A summary of the training program which recites the training objectives and all significant components of the program.

 

What are some advantages of the J-1 over the H-3?

 

J-1 training requirements are generally easier to meet than H-3 requirements. Furthermore, J-1 trainees can apply for a visa without initial approval by USCIS. This means that the costs may be less than the H-3 and the timing may be much faster.  

 

What are some advantages of the H-3 over the J-1?  

Certain J-1 trainees become subject to a home residency requirement that requires that they return to their home country before getting an H or L visa stamp, change from J-1 to another non-immigrant status in the US or get permanent residency. The H-3 does not have such a requirement. With the exception of restrictions for nurses and doctors, there are no specific rules excluding any particular occupations, unlike the J-1 training category which has numerous occupational exclusions.


About The Author

Gregory Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


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