Did you miss the H-1B visa cap? – Part II

Mike Coles
July 3, 2006 — 1,908 views  
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In my last HR Blog I discussed the H-1B visa shortage, and provided a primer for those new to H-1B visas. But the real question is what to do now that H-1B visas are no longer available for Fiscal Year 2007. There are several options available, though not every option is well-suited for every case. The first option is the J-1 visa category. The J-1 visa is a cultural exchange visa, and includes many cultural exchange programs such as au pair programs and professional development programs. For some, J-1 visas may be a viable alternative. The J-1 visa, however, is only available for a maximum of 18 months, is not renewable thereafter, and requires the employer provide genuine training to a foreign national. To qualify for a J-1 visa, the employer must create a Training Plan designed to provide professional development as well as cultural exchange opportunities. These cultural exchange opportunities may include travel and opportunities to interact with professionals outside the company. Finally, the J-1 visa holder must demonstrate non-immigrant intent (i.e., no intent to abandon his home country). There are drawbacks to J-1 visas, however. Most importantly, J-1 visas include a requirement that the foreign national return to his home country for 2 years after the J-1 program before he may obtain a work visa (i.e. H-1B) in the U.S. This requirement further facilitates the cultural exchange component of the J-1 visa program, and also serves to reduce “brain drain.” But only some J-1 visa holders are required to return to their home country; assuming a private employer provides all financial support for the J-1 visa, the employee will be subject to the 2 year residence abroad requirement only if the foreign national will receive training in a particular skill or industry that has been determined to be in short supply in his home country. This information is provided in the Skills List published by the U.S. State Department. If a foreign national is not receiving training in a field determined to be in short supply, the 2 year residence abroad requirement likely will not apply. Rather than pursue a J-1 visa, you may choose to pursue an H-3 visa. The H-3 visa is similar to the J-1, but does not include the 2 year residence abroad requirement after the visa expires. The H-3, like the J-1, requires a Training Program and also requires the H-3 visa holder demonstrate non-immigrant intent. The major obstacle for H-3 visas is the two-fold requirement that the H-3 visa holder demonstrate that the proposed training is not available in her home country and the proposed training will benefit her in future employment in her home country. If the employer has offices in the foreign national’s home country, the second requirement may be satisfied easily. Based on personal experience, however, the H-3 visa was an extremely attractive option before 2006. Since 2005, the H-3 category has become a haven for those who missed the H-1B cap. Now, the H-3 category is over-used, and the Immigration Service carefully scrutinizes applicants for H-3 visas. This does not mean that H-3 visas are no longer viable. Instead, H-3 visas should be reserved for cases where (1) a J-1 visa is not advisable, either because of the Skills List or a prior J-1 visa, (2) the U.S. employer has a pre-established training program involving foreign and U.S. trainees, and (3) the U.S. employer has offices overseas. If at least 2 of these 3 factors are present, an H-3 visa may be a viable alternative. But before pursuing H-1B visa alternatives, first ask if you truly need an alternative. In some cases, doing nothing may be better than rushing into a J-1 or H-3. Because immigration reform currently is a hot-button issue, some changes to the H-1B process are likely. For employees who have work authorization through the end of 2006 or beyond, immediately pursuing a J-1 or H-3 may be a mistake. Discuss the viable alternatives now, decide which option you will pursue, if any, and then move forward only when work authorization is 90 days from expiring. This will save you time and money, and avoid unnecessary risks.

Mike Coles

Michael E. Coles graduated from Duke University with a B.A. degree in political science and African-American studies and a J.D. degree. He began his legal career at Winstead Sechrest & Minick P.C. and he founded The Coles Firm PC, a labor and employment law boutique.