By Attorneys Robert L. Reeves and May Zhang

In our April 4, 2007 news article, we wrote about the unprecedented exhaustion of H-1B visas. The U.S. Citizenship and Immigration Services (USCIS) received 150,000 applications in just a few hours on the opening day (April 2nd) for the limited number of 65,000 new H-1B visas. USCIS will conduct an H-1B visa lottery to determine which applications of the 150,000 received will be adjudicated, and will return applications received after April 2, 2007. Due to the foreclosure of obtaining a new H-1B visa for fiscal year 2008, many people are inquiring about alternatives, like the H-3 training visa, which we will discuss today.

An H-3 trainee is an alien who has been invited by an individual or organization to come to the United States temporarily for a training program other than to receive graduate medical education or training. H-3 visas are valid for up to two years. Unlike H-1Bs, H-3 applicants must prove that they intend to return to their home country and will pursue a career outside the United States that will benefit from the proposed training.

Most importantly, the employer is required to prove to the USCIS’s satisfaction that an actual training program exists which is purposeful and not just incident to productive employment. The training program cannot be used for the purpose of recruiting and training aliens so as to displace U.S. workers. A company’s well-established training program with a set itinerary and detailed illustration about its objectives, measures of evaluation, training staff and facility has a better chance of approval than a newly-created program containing only cursory details.

Other than receiving classroom instruction, the trainee is not allowed to engage in productive employment that might displace U.S. workers unless it is incident and necessary to the training. A practice teaching internship as an assistant teacher in a Montessori Teaching Training Program would be acceptable as it is an indispensable part of training to observe classes and obtain hands-on understanding of Montessori teaching methods. On the other hand, training programs consisting of a high percentage of on-the-job training with very little academic training are unlikely to be approved.

In addition, the beneficiary cannot possess substantial training and expertise in the proposed field of training. The immigration statute involved contemplates the training of an individual so that he acquires additional skills in the occupation, not repetitious experience through day-to-day application of his skills.

Clear evidence of the unavailability of the proposed training in the alien’s home country must also be submitted as the petitioner’s mere assertion that training cannot be obtained outside the United States is not sufficient. For instance, a training program in United States for Filipino caregivers would likely fail this requirement because caregiver trainings are readily available in the Philippines. It is commonly known that caregivers are in such high demand in this country that the beneficiary also faces an uphill fight to prove that the training will benefit his career as a caregiver in the Philippines and that he will return to his home country.

In light of the exhaustion of H-1B visas, the USCIS is likely to increase the level of scrutiny of H-3 petitions to prevent abuse of the program. Employers and alien workers seeking H-3 visas should consult a knowledgeable and experienced immigration law firm.