Sindell Law Offices E-Min Newsletter (Vol. 6) - English Article #28
Unless Congress acts soon, we could experience H visa blackout early in FY 2005 (which begins on October 1). The FY 2005 H-1B cap is expected to be reached shortly after the start of the fiscal year, and the H-2B cap is likely to be reached in early January if not earlier.
Congress has just returned from recess. Your elected officials need to hear from you on this issue if we are to succeed in increasing access to these important visas. See below for a direct link to letters that you can send to your Members of Congress in support of the H-1B and H-2B visa programs. You can also contact your elected officials by phone via the Congressional switchboard (202-224-3121). USCIS has reported receiving 45,900 petitions that will count against the FY 2005 cap of 65,000. At this rate, the FY 2005 cap could be hit by the start of the upcoming fiscal year. Without Congressional relief, your clients will be barred from petitioning for new H-1Bs for almost all of FY 2005. To send a letter to Congress urging members to support increased access to H-1B foreign professionals, go to: http://capwiz.com/aila2/mail/oneclick_compose/?alertid=5183421. You can also phone your Members of Congress to register your support for increased access to H-1B visas.
We have written about several other visa options in the past, and we would like to expand on the other options for people to consider.
H-3 Visa
The regulations allow for training in "any field of endeavor". Only about only 3000 H-3 visas are issued each year. However, it is a useful tool if the goal is training and not productive employment. The requirements are
1. The training must not be available in the alien's home country.
2. The alien must not be placed in a position which is part of the normal operation of business which would ordinarily be filled by a US worker
3. The alien must not be productively employed unless such employment is "incidental and necessary" to the training.
4. The training must benefit the alien in pursuit of employment outside the US
The employer should also keep in mind that the program should include:
1. A fixed schedule
2. Stated objectives
3. Evaluation of the training
4. It will teach skills the alien already possesses or will not be able to use in employment outside the US
It cannot be used to extend the training of a student who has used their maximum period of optional practical training. Therefore, if an H-3 training program is used for a student in this position, it must be shown that the training is not related to the training undertaken pursuant to the optional practical training.
The purpose of the training must be to enable the alien to pursue a career outside of the US, a career that can by with the US based employer. Sometimes, a potential alliance with an overseas employer can be a legitimate basis for the training. Generally, if the USCIS considers that the training includes any productive employment, it will not approve the petition.
When training is sought in an area in which the alien already has ability, USCIS will closely scrutinize the application to ensure the visa is not being used to provide the alien with productive employment.
The E visa
If you are currently in the U.S. in F-1 status, you may petition the USCIS to change your status to the E visa category. If your company is Japanese owned and you are a Japanese national, and your company has substantial trade or made a substantial investment, the company would qualify for an E visa. If your company has E visa holders in the U.S. then the answer to your query is simplified. However, you still must show that you qualify for the E visa. An E visa holder may have managerial or executive duties or have specialized skills in a specific area particular to that organization. For example, an accounting position would not be managerial or executive in nature, and therefore, would not qualify for that category. If you have performed accounting in Japan for the parent company, or for a similar company in the industry, an argument can be made that you possess specialized accounting skills relative to the industry.
Experience with a parent company
It is true that most E visa holders have worked for a parent company in a managerial or specialized skills position, there are no regulations, unlike the L visa that require the applicant to have been employed by the parent company. From a practical standpoint, showing that you have specialized skills important to the function of the company may be difficult if you have never worked there, or worked there for a short period using practical training. Procedurally, it is generally easier to convince the USCIS of the skills than the US Embassy in Japan. Further, if you return to Japan to obtain a visa stamp, there is a good chance you will be stuck there for several months before you obtain the visa stamp because you need to schedule an interview with the embassy and then wait for them to adjudicate your case, which could take several weeks to several months.
J-1 Visa
Another training visa is the J-1 training visa. This also requires a sponsor and that a training program be in place. With an H-3, a petition must be filed and approved by the USCIS. The J-1 program applicant needs to obtain a DS-2019 from an umbrella organization and take his or her application to the U.S. embassy to obtain a J-1 visa stamp. J-1 programs can be issued for up to 18 months. In order to obtain a DS-2019 form, the applicant and the employer must fulfill the criteria of the particular program. The training provided must be an area approved by the organization, for example management, business, engineering, etc. The applicant should prepare a statement as to why he or she needs training. The organization should provide detailed information regarding the training. In addition, the applicant should be prepared to describe his or her plans after completing the training. A trainee also needs to have travel and medical insurance during his or training in the U.S.
The problem with the J-1 is that changing status to the J-1 category in the U.S. takes 4-5 months. From a practical standpoint therefore, the J-1 is most helpful if the applicant applies for and obtains the J-1 visa stamp abroad. The problem is that if the consulate doesn't believe the J-1 program is legitimate or if they believe that the applicant will not return to their home country after completion of the studies, the consulate will deny the application as per section 214(b) of the Foreign Affairs Manual which basically states that the applicant has immigrant intent. However, if a petitioner decides to pursue a training program, the J-1 is an effective mechanism and will allow someone to train in the U.S. for up to 18 months.
