Many employers are familiar with visa categories that allow foreign nationals to work for them in the U.S. These same employers might be surprised to hear that there are visa categories available for on-the-job and classroom-style training for foreign nationals. These categories cover a wide range of activities and can generally span from a few weeks to up to two years.
The visa categories are designed to allow the foreign national to obtain knowledge and experience in a specific career field via immersion in U.S. employer operations and then bring home their new skills and experiences to enhance their careers outside the U.S. The trainees can be paid for their time and work and should be provided opportunities for exposure to U.S. cultural activities.
Below are descriptions of the two U.S. visa categories most appropriate for foreign national training and the related process to obtain the visa status.
Action Items for Employers Interested in Sponsoring Foreign National Trainees:
- Assess which areas of the business and organizational structure are suitable for a trainee.
- Develop a structured and targeted training program.
- Understand the limitations.
- Work with qualified immigration counsel to determine which visa program better fits best and understand how the foreign national will obtain the status.
The H-3 Trainee Visa:
The H-3 visa has two main categories.
1. Trainees: Foreign nationals can receive up to two years of training in virtually any field or industry, if such training is not available in their home country.
2. Special Education Exchange Visitors: Foreign nationals can receive up to 2 two years of practical training and experience in the education of children with physical, mental, or emotional disabilities.
- Advantages: Individuals may be involved in productive work and receive compensation, but it must be incidental to, and necessary for, the training.
- Limitations:
- Training period is limited to two years, without an extension option.
- The trainee’s role cannot be within the normal operations of the U.S. business and one that normally U.S. workers would hold; the employer should ask themselves: Can my operation run without the trainee role? If not, then an H-3 visa would not be suitable.
- Not available for graduate medical education or for training provided primarily by academic or vocational institutions; limited availability for medical students and nurses.
- Requires approval of an H-3 petition by the U.S. Citizenship & Immigration Services (USCIS) before the application for an H-3 visa stamp at a U.S. consular post abroad or visa-free admission at the border for Canadians.
- Generally, USCIS will apply a high level of scrutiny about the bona fide training nature of the role.
- Completion of two years of H-3 training will require the foreign national to return home for at least six months before being eligible for certain work visa categories.
- The dependent spouse of an H-3 worker cannot obtain U.S. work authorization.
The J-1 Exchange Visitor Visa for Interns and Trainees:
The J-1 visa overall has numerous sub-categories to support exchange, including short-term scholars and seasonal employment. The two main options for employers offering training to foreign nationals are the J-1 Intern and the J-1 Trainee.
The J-1 Intern: For up to 12 months, current post-secondary students or recent graduates can participate in structured, targeted and supervised work-based learning in their academic field.
The J-1 Trainee: For up to 18 months, those with a bachelor’s degree and at least one year of experience in the occupation, or five years of experience in the occupation, can work and receive training to enhance existing skills in the occupation.
- Advantages:
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- Significant flexibility in the type of training, work, and occupation involved.
- The J-2 spouse of a J-1 can obtain work authorization in the U.S., as long as their work is not needed to financially support the J-1 principal.
- No petition with USCIS required.
- Employers work with a Department of State (DOS)-approved sponsoring organization that assesses the proposed training program and issues the J-1 documentation for a visa stamp at a U.S. consular post abroad or visa-free admission at the border for Canadians.
- Limitations:
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- Cannot be used for unskilled labor, positions involving substantial clerical work, clinical care, or childcare.
- Cannot be used to staff positions as part of regular business operations.
- May trigger the “two-year home residency requirement” before the foreign national can obtain another immigration status or file certain green card steps; this depends on the foreign national’s country of residence, occupation, and any government funding for the training program; there are several waiver categories, most of which require assistance of qualified immigration counsel.
The Bottom Line:
U.S. employers interested in hosting foreign national interns or trainees should assess their capacities to provide structured training and consult qualified immigration counsel about the visa options. These programs can offer great opportunities for U.S. employers to connect in particular with college students and young professionals, without the need for a full, longer term employment relationship that requires more extensive immigration sponsorship.
If you have questions, please contact a member of the HSE Immigration Practice Group.