Wednesday, July 20, 2016

H-3 Visa As An Alternative to H-1B

As promised in my tweet earlier, here is a report on the H-3 visa as an alternative to H-1B. First of all, special thanks to Margaret Holland-Sparages, a Senior Associate at Deutsch Williams, for sharing your experience and knowledge with the attendees. It really is a great and under-utilized program and I will very likely be suggesting this program to those of my clients that are concerned about the H-1B quota and the H-1B rejections. Below is a brief background of the program and why this program should be considered.

Under INA Section 101(a)(15)(H)(iii), H-3 visas are granted to temporary workers "invited by an individual or organization for purposes of receiving instruction and training 'in any field of endeavor...other than graduate medical education or training.' The training program must be one that is not designed primarily to provide productive employment." Chapter 5, Kurzban's Immigration Law Sourcebook, 14th Ed.  

In order for your H-3 petition to be approved, among many other requirements, you must prove that the beneficiary cannot obtain the training in her own country, that the program does not exist in the her own country, and that it is unique to the degree in the U.S. You also must prove that the H-3 beneficiary will not be a productive member of your company, due to the required training process. Importantly, you must show that this training program is required for a number of employees at the company and was not implemented just for the purpose of obtaining the H-3 visa. 

This Program Should be Considered Because...
As every immigration practitioner and every H-1B-dependent employer recognizes, H-1B is an exhausted program. For many years, the 65,000 quota has been filled within the first week of April. This leaves many qualified foreign nationals here on F-1 status with no options but to return to their home countries upon the expiration of their F-1 status. Simply because of the inadequacy of our H-1B program, many talented individuals leave the U.S., leading to a waste of our resources as we spend to train them only to have them leave and contribute to the growth of other countries. Without an expansion of the H-1B quota and without considering the alternatives, the decision of which talented individual stays and which one leaves is left to chance (i.e. the H-1B lottery).

The H-3 program should be utilized for many reasons. I name only a few here. First, the lives of international students and the well-being of the U.S. economy is too important to leave to chance. Second, the high demand for STEM talent is vastly unsatisfied and H-3 can help fill that gap. Last, but definitely not the least, this program will provide these highly qualified individuals a chance to stay and another chance for the H-1B lottery or an alternative employment-based visa at a later year.

Even if your beneficiary has been selected in the H-1B lottery, there is another level of review to see whether he/she meets the requirements of H-1B. If she is ultimately denied the H-1B, the H-3 program should also be considered in order to allow her to stay here and utilize her talents, for the same reasons mentioned.

Training and The STEM OPT Extension
As mentioned above, in order to use the H-3 visa, the foreign national must be here for a training program. The training requirement should be easily satisfied for a F-1 beneficiary who has been here for 12 months of OPT. The main argument to use is that 12 months is not nearly enough to fully train someone for the workforce. Of course, the evidence provided to prove that would be different for each case.

However, please note that the USCIS will deny the H-3 visa if the beneficiary already possesses substantial training and expertise in the proposed field of training. This raises the issue of the new 24 month STEM OPT Extension. It will be substantially more difficult to argue that the H-3 beneficiary still needs further training after three years in her field of specialty. However, Mrs. Holland-Sparages suggested the wonderful idea of arguing that new training is needed because of technological advancements or new scientific discoveries, which is definitely not a problem in the STEM fields!

In creating the training program for the H-3 petition, it should state the reasons that the training is required to extend to a specific length of time beyond the OPT period. Moreover, there are many other requirements that should be outlined, such as the kind of training to be given, the level of supervision to be given, and the structure of the program. These issues should be considered with an immigration attorney. we would be able to talk about exactly how to draft the training program to meet the needs of the H-3 program.

Zhang-Louie, Immigration Legal Counsel is a semi-virtual immigration law practice in Cambridge, Massachusetts. Embedded in Cambridge's innovative culture. we understand that particularly for startups, human resource issues such as where to find the next qualified employee can be daunting. We are here to provide you guidance and counsel on hiring globally so that you can focus on growing your business. 

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