We are happy to join the ILW family of Blogs. This is our first post and we will focusing on Hospitality Immigration among other topics. Hope you will benefit.
In this Bog article we discuss the very unfamiliar area of H3 visas for the Hospitality Industry. The very talented attorney Kate Powell from our office has been very successful in crafting and getting approved numerous such cases, and her summary is presented below.
The H-3 nonimmigrant visa category is available for aliens coming temporarily to the United States as either a:
• Trainee to receive training, other than graduate or medical education training, that is not available in the alien’s home country or
• Special Education Exchange Visitor to participate in a special education exchange visitor training program for children with physical, mental, or emotional disabilities.
This article will cover only H-3 trainee visas. H-3 training may be in a variety of fields, including commerce, communications, finance, government, transportation, agriculture, etc. Our office has been successful in obtaining H-3 visas for numerous hospitality trainees to receive hospitality related training at the hotels in the U.S.
Training purpose. The heart of an H-3 petition is the explanation for conducting the training in the United States. The petition should describe how the U.S. company is benefited by providing the training, the career abroad for which the training will prepare the foreign national, and the reason why the training cannot be obtained in the foreign national’s home country. The training program should be related to the petitioner’s business and cannot be for workers who already possess “substantial training and expertise” in the area of training.
The petitioner must establish its ability to provide the training, and the training program itself must not be available in the foreign national’s own country. In addition, the training cannot be in a field unlikely to be used outside the United States, or the primary purpose of which is to eventually staff the domestic operations of the U.S. company. This classification is not intended for employment within the United States. The petitioner must establish that the beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training. It is designed to provide an alien with job related training for work that will ultimately be performed in the alien’s home country.
Therefore, it is very important to show that the trainee has no intention of abandoning his or her foreign residence and will return to his or her home country upon completion of the training program.
Training program. In order to obtain H-3 classification, the petitioner must describe the training program in detail. The description must include the nature of the training, the type of supervision, the proportion of time, if any, that will be devoted to productive employment, the number of hours in classroom instruction and/or on-the-job training, and an itinerary if the training will be in more than one location. The training program that deals in generalities with no fixed schedule, objectives, or means of evaluation will not be approved.
Practice shows that training programs will be approved if they are described carefully and specifically, and if the petitioner demonstrates some benefit to the U.S. company providing the training.
Advantages of H-3 category
1) Eligibility for H-3 status is not based on advanced education. Unlike nonimmigrant work visas, absence of the degree in the field of training is actually beneficial for H-3 classification. The regulations require that the alien does not possess substantial training in the proposed field of training.
2) There are no numerical limits on the number of H-3 petitions granted each year. H-3 may be a good option for an alien who wants to stay in the U.S. and eventually apply for H-1B, but the number of H-1B visas allotted for the fiscal year has run out and the alien has to wait until the visas become available. In that case, the alien might want to receive H-3 training and then switch to H-1B in the future. If this is the case, the adjudicator might later request evidence that the alien has intent to go back to his or her home country after completion of the temporary employment in the U.S. This is because anytime you apply for a nonimmigrant visa the adjudicating officer has a presumption that you have the intent to immigrate. Therefore, the burden is on you to show that you have sufficient ties with your home country, such as relatives, property, offer of employment upon your return, etc.
3) Sometimes it may be beneficial to obtain H-3 training visa rather than J-1 training visa. Certain J-1trainees are subject to a two-year home residency requirement that requires that they return to their home country before they can acquire H or L visa status or permanent residency. The H-3category does not have such a requirement, and there are no specific rules excluding any particular occupations--unlike the J-1 training category, which has numerous occupational exclusions.
Limitations on extensions. If the H-3 petition is approved, you may be allowed to remain in the United States for up to 2 years. However, we advise our clients to complete the training program before the expiration of 2 years. An H-3 foreign national trainee who has completed two years of training may not have his or her status extended or changed or be readmitted to the United States with another H or L visa unless he or she has resided outside the United States for at least six months. In order to avoid that, we recommend our clients to change their status before completing full two years of training. In that case, the alien does not have to remain outside the U.S. for 6 months.
In case H-3 visa is denied, there are ways to challenge the denial. Our office has been successful in securing an H-3 visa even after the denial was issued.
H-3 training visa may be used to provide a nonimmigrant solution for training in a variety of industries, and, thus, can be a valuable tool in meeting the goals of U.S. employers and foreign nationals seeking training in the United States. The circumstances of each case must be evaluated to determine which would be more appropriate and advantageous to your particular case, taking into consideration many of the factors discussed above. If you are interested in your eligibility for H-3 visa, contact our office for additional information.
Jacob J. Sapochnick is the managing attorney of The Law Offices of Jacob J. Sapochnick and is an active member of the American Immigration Lawyers Association; he has been invited to lecture on immigration law topics at various conferences in the United States and abroad. He has also published several articles on issues related to the field. Mr. Sapochnick, Esq. provides immigration law support to US Immigration clients worldwide. This includes assisting individuals and companies applying for Visas to work and live in the United States, Canada and Mexico. Mr. Sapochnick graduated from Manchester Metropolitan University, School of Law with a Bachelor of Law (Hons.) Degree. He also attended California Western School of Law in San Diego, CA and obtained his LL.M (Masters) degree in international and comparative law. Thereafter, he pursued his career, focusing on US business immigration law. Mr. Sapochnick assists foreign workers to live and work in the United States by understanding their situation, goals and objectives he obtains the appropriate work and investment visas. His clients range from multi-national companies to mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.