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Post-Cap Season: H-3 Visa as an Alternative to an H-1B Visa

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2015 that it has received more than the limit of 65,000 general category cap and 20,000 advanced degree exemption H1B petitions for FY 2016.

On April 13, USCIS used a computer-generated random selection process to select enough petitions to meet the statutory cap for both categories. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

USCIS conducted the selection process for the master cap first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 general category limit.

USCIS will begin premium processing for H-1B cap cases no later than May 11, 2015.

During this waiting period, I advise my clients to start thinking about alternative solutions to pursue in case their H-1B petition is rejected. Some types of alternative visa types are: F-1, OPT, J-1, B-1, B-2, TN (for citizens of Canada/Mexico), E-3 (for citizens of Australia), H-1B1( citizens of Chile and Singapore) H-3. Those type of visas are not subject to strict requirements like the H-1B visas and can be filled throughout the year.

In this post we will explain specifically about H-3 trainee visa.

H-3 Visa Requirements:

H-3 classification is designed to provide a foreign national with job-related training for work that will ultimately be performed outside the United States.

An H-3 trainee must be invited for the purpose of receiving training, in any field including but not limited to: Agriculture, Commerce, Communications, Finance, Technology, Government, Transportation. Graduate medical training is specifically excluded from this visa category (foreign nurses and medical students on school vacation may, in some circumstances, receive training)

If the H-3 petition is approved, the trainee may be allowed to remain in the United States for up to 2 years. Upon the completion of the maximum period of stay (i.e. 2 years), trainee must leave the U.S. and cannot extend his visa or change his status.

The H-3 nonimmigrant visa category allows foreign nationals coming temporarily to the United States as either a:

In order to obtain H-3 classification, a U.S. employer or organization must demonstrate that:

  • The proposed training is not available in the foreign national’s native country;
  • The foreign national will not be placed in a position which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;
  • The foreign national will not engage in productive employment unless such employment is incidental and necessary to the training; and
  • The training will benefit the beneficiary in pursuing a career outside the United States.

Each H-3 petition for a trainee must include H-3 Training Program and a Support Letter with a statement that:

  • Describes the type of training and supervision to be given, and the structure of the training program;
  • Sets the proportion of time that will be devoted to productive employment;
  • Shows the number of hours that will be spent, respectively, in classroom instruction and in on –the-job training;
  • Describes the career abroad for which the training will prepare the foreign national;
  • Indicates the reasons why such training cannot be obtained in the foreign national’s country and why it is necessary for the foreign national to be trained in the United States; and
  • Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the employer/organization for providing the training.

An H-3 Training Program may not be approved which:

  • Deals in generalities with no fixed schedule, objectives or means of evaluation;
  • Is incompatible with the nature of the petitioner’s business or enterprise;
  • Is on behalf of a foreign national who already possess substantial training and expertise in the proposed field of training;
  • Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
  • Will result in productive employment beyond that which is incidental and necessary to the training;
  • Is designed to recruit and train foreign nationals for the ultimate staffing of domestic operations in the United States;
  • Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or
  • Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.

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