Training foreign nationals who need to enter the United States
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Training foreign nationals who need to enter the United States

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U.S.employers often seek to train or be trained by foreign nationals who need to temporarily enter the United States for this bona fide business purpose. There are a variety of situations which can ...

U.S.employers often seek to train or be trained by foreign nationals who need to temporarily enter the United States for this bona fide business purpose. There are a variety of situations which can present themselves, such as a U.S. company must train personnel from abroad on the methods, procedures and processes of the U.S. operations to implement the same practices at oversea operations of a related entity; a U.S. company may purchase equipment or specialized goods from a broad requiring training by an expert of the foreign vendor; or a U.S. company may simply want to provide a opportunity to a foreign national to gain professional experience in the U.S. in their field of specialization as part of an exchange program. Counsel must examine the visa options available given the statutory and regulatory parameters, policy statements and practical requirements of the particular training program. This article will examine three visa options-the B-1, H-3 and J-1 visas–each with different elements but over lapping requirements, advantages and is advantages, practical uses and processing issues

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Training foreign nationals who need to enter the United States Training foreign nationals who need to enter the United States Document Transcript

  • Training American Style by Cora Tekach, Scott Cooper, Lori Chesser, and M. Mercedes Badia-Tavas INTRODUCTION U.S. employers often seek to train or be trained by foreign nationals who need totemporarily enter the United States for this bona fide business purpose. There are avariety of situations which can present themselves, such as a U.S. company must trainpersonnel from abroad on the methods, procedures and processes of the U.S.operations to implement the same practices at oversea operations of a related entity; aU.S. company may purchase equipment or specialized goods from abroad requiringtraining by an expert of the foreign vendor; or a U.S. company may simply want toprovide a opportunity to a foreign national to gain professional experience in the U.S. intheir field of specialization as part of an exchange program. Counsel must examine thevisa options available given the statutory and regulatory parameters, policy statementsand practical requirements of the particular training program. This article will examinethree visa options - the B-1, H-3 and J-1 visas – each with different elements butoverlapping requirements, advantages and disadvantages, practical uses andprocessing issues. B-1 VISA STATUS FOR TRAINING PURPOSES Potential Training Uses The USCIS (legacy INS) and the Department of State recognize that some B-1business visitors may engage in activities that are appropriate for other visa categories. 1The B-1 visitor for business category may be used for certain types of business-relatedtraining, largely for circumstances in lieu of the H-3 2 or J-1 status, but also for thepurpose of commercial or industrial training. 3 Additionally, certain educational purposessuch as providing or receiving academic training and conferences are also permissible. 4B-1 status is also appropriate for the rarely used purpose of individuals who are invitedto participate in the training of Peace Corps Volunteers or who are coming to the UnitedStates under contract pursuant to certain provisions of the Peace Corps Act, 5 and forparticipants in the United Nations Institute for Training and Research (UNITAR) programof internship. 6 When pursuing a B-1 in lieu of the H-3, the foreign national must be employedabroad and be classifiable as H-3. This requires that the proposed training is notavailable in the foreign national’s own country, the individual will not be placed in aposition that is in the normal operation of the business, the individual will not engage inproductive employment (unless incidental and necessary to the training), and the trainingwill benefit the foreign national in pursuing a career outside the United States.1 9 FAM, Notes; 22 CFR §41.31: OI §214.2(b)2 OI § 214.2(b) (3).3 9 FAM §41.31, Note 10.1(a), INS OI § 214.2(b) (5).4 9 FAM § 41.31 N.8.5 9 FAM § 41.31 N10.6.6 9 FAM § 41.31 N10.7. 1
  • Additionally, the foreign national must continue to receive a salary from the foreignemployer, with no salary or other remuneration from a U.S. source other than anexpense allowance or other reimbursement for expenses (including room and board)incidental to the temporary stay. 7 The B-1 may be used in lieu of J-1 in circumstances in which a foreign nationalhas travel funded by the U.S. government for the purpose of engaging in any of a widevariety of programs. For example, a Foreign Service National employee of an Embassyor Consulate abroad may travel to the United States at U.S. government expense forspecific training. It will be necessary to show that the J-1 is unavailable for the purposeof the stay in the United States. In order to make this showing, the sponsoring U.S.Government agency may certify that such an exchange program does not exist or thatthe foreign national’s activities are unrelated to any existing program. 8 B-1 visitors may be permitted to enter the United States in B-1 status to train U.S.workers in the installation, servicing, or repairing of commercial or industrial equipmentor machinery purchased from a company outside the United States, as long as there isno “hands on” work. The B-1 status may also be used for those coming to the UnitedStates for building or construction work, but only if those individuals will be engagedstrictly in supervising or providing training to construction workers. 9 B-1 visitors coming to the United States for the purpose of “usual academicactivity” may accept honoraria under the American Competitiveness and WorkforceImprovement Act of 1998 (ACWIA). 10 In order to qualify, the individual may not engagein activity lasting longer than nine days at any one institution and may not acceptpayment from more than five institutions within the previous six-month period. 11 Typically, the B-1 may not be used in cases where the primary purpose of thestay in the United States would be for study. An exception to this rule is a student at aforeign medical school who seeks to enter the United States for the purpose of an“elective clerkship” at a U.S. medical school’s hospital. This exception is permitted withspecific requirements having been met, such as that the individual is attending a foreignmedical school and will receive no remuneration from the U.S. medical school’s hospital.Further, this exception does not apply to graduate medical training. 12 Requirements In Matter of Hira, the Board of Immigration Appeals, with Attorney Generalaffirmation, established the requirements for the business visitor B-1 visa classification.These requirements are the following: • The foreign national must be engaged in commercial activity; • He or she must have a clear intent to maintain a foreign residence;7 9 FAM 41.31 N11.9.8 Cable, DOS, 04-State-13720 (Jan. 21, 2004), posted on AILA InfoNet at Doc. No. 04022564 (Feb. 25,2004).9 9 FAM § 41.31 N.8.10 American Competitiveness and Workforce Improvement Act of 1998, Title IV of Pub. L. No. 105-277(Oct. 21, 1998), 112 Stat, 2381, § 431.11 Id.12 OI § 214.2(b) (4), 9 FAM § 41.31, Note 10.4-1. 2
  • • The individual’s principal place of business and the actual place of eventual accrual of profits, at least predominantly, remains in the foreign country; • The foreign national’s stay in the United States must be temporary in nature (notwithstanding the fact that the business activity may be ongoing); and • The foreign national’s salary must come from abroad. 13 Thus, it is clear that the B-1 visa applicant must show intent to return to his/herforeign residence upon completion of the training. Additionally, the applicant must showthat the purpose of the intended stay is temporary with a definite time limitation. Therecan be no “hands on or productive work” (unless it is incidental and necessary to thetraining). For B-1 issuance, there may be no salary or other remuneration from a U.S.source. Note, however that salary paid by the U.S. entitys separate business enterpriseabroad shall not be considered as coming from a “U.S. source.” 14 The U.S. companymay pay all domestic and foreign employees through a centralized payroll system in theU.S., as long as the B-1 continues to be employed by the foreign branch and the trainingin the U.S. qualifies as a B-1 activity. In order for an employer to be considered a“foreign firm” for this purpose, the entity must have an office overseas. If the applicant is applying for B-1 in lieu of H-3, the fact that the training may lastone year or more is not in itself controlling, and it should not result in denial of visa.Further, the applicant must show that the proposed training is not available in theapplicants own country and the training will benefit the applicant in pursuing a careeroutside the United States. 15 If the B-1 visa applicant’s purpose is for commercial or industrial training, theremust be a contract of sale, specifically requiring the seller to perform such services ortraining. 16 Additionally, the foreign national must possess specialized knowledgeessential to the sellers contractual obligation to provide services or training; the foreignnational will receive no remuneration from a U.S. source; and the trip is to take placewithin the first year following the purchase. 17 Limitations on B-1 for Training The B-1 visa category may not be used for a foreign national seeking entry intothe United States where the individual would qualify for J-1, A or G, or H-2 status (theindividual must seek H-2 notwithstanding the fact that the salary or other remuneration isbeing paid by a source outside the United States, and the petitioner must file a laborcertification). If there is any uncertainty regarding whether a case may be classifiable asB-1, an advisory opinion must be requested through the Department of State atwww.legalnet.com . H-3 TRAINING PROGRAMS13 Matter of Hira, 11 I&N Dec. 824 (BIA 1965, 1966).14 9 FAM § 41.31 N.3.4.15 9 FAM § 41.31 N11.9.16 9 FAM § 41.31 N10.1; OI § 214.2(b) (5).17 Id. 3
  • General Considerations H-3 training programs are developed and administered by the United Statesentity offering the training to the foreign national. Unlike J programs, there is no pre-approved intermediary. The training entity applies directly to CIS on Form I-129 with adetailed statement of the proposed program with extensive documentation to support itsvalidity. The H-3 category requires that the foreign national not have immigrant intent -meaning that he or she intends to leave the United States at the end of the trainingperiod. 18 It also requires the training not be available in the foreign national’s homecountry. 19 The beneficiary may not be placed in a position where U.S. workers areregularly employed, 20 and no “productive employment” is allowed unless it is incidentalto training and necessary for preparing the beneficiary to perform a function outside theUnited States. 21 The training must prepare the beneficiary to pursue a career outsidethe United States 22 The regulations provide that training may not be granted in certain situations,which include the following: • Training which is too general or has no objective means of evaluation; • Training which is not compatible with the nature of sponsor’s business; • The beneficiary already possesses substantial expertise in the training area or subject matter; • It is unlikely the training will be used outside the U.S.; • The training will result in productive employment, meaning the training involves functions, responsibilities, duties and schedules which are the same as a U.S. worker regularly employed at the training site; • The sponsor does not have sufficient physical plant and personnel to conduct the training; • The training is designed to extend time granted for training of a foreign student. 23 The period of admission on an H-3 may not exceed two years. 24 No extension,change of status or readmission to H or L state will be granted if the full two years hasbeen used unless the beneficiary has resided outside the U.S. for six months. 25Additionally, an extension may be denied if labor certification has been granted or an I-140 Petition for Immigrant Worker filed for the beneficiary. 2618 INA §101(a)(15)(H)(iii), 8 C.F.R. § ______19 8 C.F.R. § 214.2(h)(7)(ii)(A)(1)20 8 C.F.R. § 214.2(h)(7)(ii)(A)(2)21 8 C.F.R. § 214.2(h)(7)(ii)(A)(3)22 8 C.F.R. § 214.2(h)(7)(ii)(A)(4)23 8 C.F.R. § 214.2(h)(7)(iii)(A-H)24 8 C.F.R. § 214.2(h)(9)(iii)(C)(1)25 8 C.F.R. § 214.2(h)(12)(iv)26 8 C.F.R. § 214.2(h)(16)(ii) 4
  • The I-129 / H-3 Petition may be filed up to six months before training isscheduled to begin. 27 The petition may be filed for one employee/one location, oneemployer / two or more locations with an itinerary, or for multiple beneficiaries beingtrained at the same location. However, all aspects of the itinerary, training, and locationshould be the same, or separate petitions will be required. 28 Multiple beneficiariesprocessing at different consulates may use one petition, however. 29 An H-3 petition may be denied, or an approved petition revoked and entry intothe U.S. by the beneficiary may be denied by CBP and USCIS if the Secretary of Laborcertifies that a strike or other labor dispute involving a work stoppage is in progress inthe occupation at the place where the beneficiary is to be trained, and that the training offoreign workers would adversely affect the wages and working conditions of U.S. citizenand lawful permanent resident workers. 30 If the beneficiary has already entered in H-3 status at the time a strike or workstoppage commences, the beneficiary will not be considered to be out of status solelybecause of his or her participation in the strike or other labor dispute, but will still have toabide by the terms of authorized stay and depart the United States at the end of the H-3status. 31 The spouse and minor children of an H-3 beneficiary may accompany or follow tojoin the trainee into the United States in H-4 status, which is not a work-authorizedstatus. The dependent would have to qualify independently under a visa classificationauthorized for employment incident to status. 32 Special H-3 Programs The regulations specifically provide for three special programs: medical studentexterns 33 , nurses 34 and special education programs 35 . Externs may qualify for H-3 status if they attend a residency or internshipprogram at an American Medical Association or American Osteopath Associationhospital and will engage in the externship during school vacation. 36 Nurses may use the H-3 program if they have an unrestricted license in thecountry where they received medical education or if the education was in Canada or theUnited States and the petition states that the nurse is qualified under State law to2728 8 CFR §214.2(h)(2)(i)(B and C)29 8 C.F.R. §214.2(h)(2)(ii)30 8 C.F.R. §214.2(h)(17)31 8 C.F.R. § 214.2(h)(17)(iii)32 8 C.F.R. § 214.2(h)(9)(iv)33 8 C.F.R. § 214.2(h)(7)(i)(A)34 8 C.F.R. § 214.2(h)(7)(i)(B)35 8 C.F.R. § 214.2(h)(7)(iv)36 8 C.F.R. § 214.2(h) (7) (i) (A). See also 9 FAM 41.53 N.20. 5
  • receive training. 37 Note that the foreign health care worker certifications required underINA §212(a) (5) (C) are not required for trainees. 38 The special education program addressed in the regulations is for practicaltraining and experience in the education of children with physical, mental or emotionaldisabilities. 39 It is limited to 18 months duration (as opposed to the usual two years), andthe petitioner must be a facility with professional trained staff and a structuredprogram. 40 The beneficiary must be “nearing” a B.A. or higher degree or have“extensive” prior training or experience. 41 Practical Considerations A detailed, specific outline of the training must be submitted to include thefollowing information: • Who will be performing the training (names of staff members and job titles); • Where the training will be performed (including photographs of physical location); • What course materials will be used (including table of contents for instruction manuals, for example); • How many hours will be devoted to each aspect of training, including breakdown of classroom, hands-on, on-the-job or other type of training; and • The statement should also include how the trainee is to be evaluated. The petition must be very clear regarding the proportion of time devoted toproductive employment versus classroom training. The statement describing thetraining, submitted with the petition, should fully describe the amount of time thebeneficiary will devote to classroom training, on-the-job training and productiveemployment. Productive employment and on-the-job training must be minimal andjustified as necessary for the training and not to displace a U.S. worker. 42 The trainingprogram must also be compatible with the nature of the employers business orenterprise. 43 The employer must have physical plant and sufficiently trained personnelto provide the training. 44 Training primarily by or at academic institutions is prohibited, 45 but the petitionermay integrate outside classroom studies into a training program. 46 If classroom37 8 C.F.R. §214.2(h) (7) (i) (B).38 William R. Yates, Final Regulation on Certification of Foreign Health Care Workers: Adjudicators FieldManual Update AD 03031 (Sept. 22, 2003); posted on AILA InfoNet, Doc. No. 03092641, Sept. 26, 2003.39 8 C.F.R. § 214.2(h)(7)(iv)(A)(1)40 8 C.F.R. §41 8 C.F.R. § 214.2(h)(7)(iv)(B)(2)42 8 C.F.R. § 214.2(h)(7)(ii)(2)43 8 C.F.R. § 214.2(h)(7)(iii)(B)44 8 C.F.R. § 214.2(h)(7)(iii)(G)45 8 C.F.R. § 214.2(h)(1)(ii)(E)(1) 6
  • instruction is too theoretical, hands-on experience could supplement the program,although care should be taken in justifying the necessity of such practical experience. Specific proof should be submitted regarding how the beneficiary will use thetraining outside the U.S., including proof of the existence of an office abroad or otherplace the person will be returning to for work after the training. The ideal situation is ifthe petitioner operates a foreign office that employed or will employ the beneficiaryfollowing training. In this case, a letter or other proof from the foreign office stating thetraining is not available at the foreign location and committing to employing thebeneficiary following the period of U.S. training is advisable. A more difficult situation is when the U.S. company plans to open a new foreignoffice and will employ the U.S.-trained beneficiary there. In this case, specific plansregarding when and how the office will be opened, proof of contracts in the foreigncountry, letters from suppliers or customers confirming the foreign office is beingopened, and similar evidence would all go to substantiate the claim that the beneficiarywill have a career to pursue outside the U.S. at the end of the training period. If the petitioner is training the beneficiary for a position at an unrelated third-partycompany abroad, the existence of a job offer with the third party should also be well-documented. If the beneficiary will work somewhere besides his or her home country at theend of the training period, proof should be provided that he or she will be authorized towork in the target location. Legitimate reasons for H-3 training may include a corporate rotation to enableoverseas employment, a desire to educate an overseas client about the employersbusiness as a marketing strategy; or a need to train a co-venturer in the employersmethodology to facilitate the development of a joint project. 47 However, if the employeehas significant prior experience with a related entity abroad, it may appear that the H-3training is unnecessary. This assumption may be addressed by including thebeneficiary’s Curriculum Vitae or resume and pointing out gaps in experience or priortraining that are intended to be filled by the H-3 training program. 48 If the training is utilizing prepared course material from an outside source,evidence should be provided that such training is not available in the home country, suchas the proprietary aspects of the training in addition to prepared course material, or theneed to interact with persons in the U.S. office to fully learn applications of the coursematerial. A copy of the contents page, or the entire course material if not too bulky,should be submitted with the petition. The source and amount of remuneration must also be documented, 49 and careshould be taken regarding this aspect lest USCIS may use it as a basis for concludingthe H-3 beneficiary is being used as a ruse for productive employment. The beneficiary46 Immigration Briefings, No. 93-05, “Training Visa Categories In The United States” (May 1993), pgs 2to 8, et al.47 Id.48 Id.49 8 C.F.R. § 214.2(h)(7)(ii)(B)(6) 7
  • will not be able to seek supplemental employment while in the U.S. in H-3 status, so theamount should be sufficient to live on while in the U.S., and could include room andboard, for instance, as another portion of remuneration. THE J-1 TRAINEE The J-1 visa is appropriate for industrial and other types of training whereexchange activities are contemplated pursuant to the United States Information andEducational Exchange Act of 1948 (Smith-Mundt Act) 50 , as well as the Fulbright-HaysAct 51 , the statutes which originally authorized the J-1 visa category. General J-1 training categories The J-1 category includes three general categories of training – graduate medicaltraining, flight training, and industrial training. The latter accommodates most every othertype of training in specialty and non-specialty occupations other than that in clinicalhealth professions. Medical trainees must be sponsored by the Educational Commissionfor Foreign Medical Graduates, the only organization designated to sponsor physiciansfor post-graduate clinical training. 52 Since the attacks of 2001 and the revelation thatseveral of the terrorists were trained by U.S. based flight training programs, flight trainingsponsorship has been closely monitored. A moratorium on approval of new flight trainingprograms and agricultural training programs was recently announced by the Departmentof State citing a lack of resources to properly monitor such programs 53 . The trainingprogram under the J-1 has survived years of criticism by Congress, labor andprofessional organizations, and several studies which have found abuse and lack ofproper controls on the program by the U.S. government 54 . Industrial Training The use of the J-1 for industrial training has grown significantly within the pastdecade. The Department of State (and former United States Information Agency andInternational Communication Agency) has designated both individual sponsororganizations as well as “umbrella” sponsors to serve as sponsors for training programs. Sponsor organizations vary in terms of the individual whom they will sponsor.Some, such as the American Council for International Personnel (“ACIP”), limitsponsorship to trainees who will train with member employers. Several U.S.-foreignchambers of commerce, such as the British-American Chamber, German-AmericanChamber or French-American Chamber, tend to favor sponsoring individuals of thechamber’s national group or for member organizations, but not exclusively. Traineesneed not be nationals of the particular foreign chamber partner country. American50 United States Information and Educational Exchange Act of 1948, Pub. L. No. 402, 66 Stat. 6. (Smith-Mundt Act).51 Mutual Educational and Cultural Act of 1961, Pub. L. No. 87-256, 75 Stat. 527 (Fulbright-Hays Act).52 The scope of this article is limited to industrial training.53 71 Fed. Reg. 3913 and 71 Fed. Reg. 3914 (Jan. 24, 2006)54 General Accounting Office (GAO) report, Inappropriate Uses of Education and Cultural Exchange Visas(Feb. 5, 1990) ("GAO report"), reported in 67 Interpreter Releases 315 (Mar. 19, 1990). Also see 58 Fed.Reg. 15180 (Mar. 19, 1993) (supplementary information) and 70 Interpreter Releases 337 (Mar. 22, 1993). 8
  • Immigration Law Foundation (“AILF”) and the Association for International PracticalTraining (“AIPT”) are examples of organizations which will serve as a sponsor for anythird party employers and prospective trainees without any need for membership andirrespective of nationality or industry. The sponsoring entities can be found on theDepartment of State website at http://exchanges.state.gov/education/jexchanges/Specific employers are authorized to sponsor trainees for internal training purposes.These employers tend to be international companies in manufacturing, service, financial,educational, research, and other industries. Advantages in using the J-1 category The principal advantages of the J-1 over the B-1 for training is that on-the-jobtraining can be an element of the program 55 , the alien need not be an employee of aforeign employer, and financial support of the trainee can come from both U.S. or foreignsources. Contrasted with the H-3, productive employment can be the principal trainingsetting for a J-1 and there is no requirement to show that the training is unavailable inthe home country. There is also no need to file and obtain approval of a petition withUSCIS before the alien applies for a visa. The J-1 applies directly for the J-1 visa withthe sponsor-provided certificate of visa eligibility known as the Form DS-2019. Although a B-1 or H-3 may be required to be taxed as a resident for federal andstate income tax purposes and subject to payment of social security taxes, an exchangevisitor enjoys an initial nonresident tax status, is exempt from FICA contributions, andmay benefit from tax treaty provisions exempting J-1’s from U.S. taxation altogether fordefined periods. The category may help an employer avoid paying into both the U.S. andforeign social tax systems for a trainee where there is no totalization agreement in placebetween the U.S. and the trainee’s home country. Much of the criticism of the J-1 trainee program has been that it is being used byemployers as an employment visa and to avoid the wage and other requirements underthe H-1B category. For this reason, it is imperative that counsel assures that trainingprograms meet regulatory requirements. The Department of State’s auditing of trainingprograms over the last several years has prompted many trainee sponsors to morecarefully review applications for sponsorship, and they are now more likely to refusesponsorship if a training program appears incomplete or the training is in an unskilledoccupation. Another distinction between the J and other trainee categories is J dependents(both spouse and children), who are granted J-2 visas, may apply for employmentauthorization once they have entered the United States in J-2 status. The dependents ofH-3 foreign nationals as well as H-1B dependents in H-4 status do not qualify for workauthorization. The dependents have to qualify independently for a visa which grantsthem work authorization. Requirements for J-1 Training Programs55 22 CFR § 62.22(b) (April, 11, 2002). 9
  • Department of State (“DOS”) regulations require that a training program bedesigned to enhance the exchange visitors skills in his or her specialty or non-specialtyoccupation through participation in structured training and that the program improve theparticipants knowledge of U.S. techniques, methodologies, or expertise within thetrainees field of endeavor 56 . Such programs are also supposed to incorporate elementswhich will convey to the trainee knowledge of U.S. culture and society as well as toexpose U.S. residents to foreign cultures and skills 57 . On-the-job training is allowed as a component of a bona fide training programand such is defined as an individuals observation of and participation in given tasksdemonstrated by experienced workers for the purpose of acquiring competency 58 . Thesebona fides distinguish a program from one involving unauthorized gainful employment. The field in which training can be provided must be either a "specialty" or "non-specialty” occupation as opposed to unskilled work. A "specialty occupation" is definedas "an occupation that requires theoretical and practical application of a body of highlyspecialized knowledge to perform fully in the stated field of endeavor” 59 , not dissimilarfrom the USCIS definition of an occupation appropriate for H-1B classification. “Non-specialty” occupations are generally those which are more than skilled occupations, butnot specialty occupations and generally require at least two years or training orexperience 60 . Specialty programs are allowed in: • Arts and Culture; • Information Media and Communications; • Education, Social Science, Library Science, Counseling and Social Services; • Management, Business, Commerce and Finance; • Health-Related Occupations (non-clinical); • Aviation (other than flight training); • Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations; • Construction and Building Trades; • Agriculture, Forestry and Fishing; • Public Administration and Law; and other training 61 . A particular J-1 sponsor may be restricted as to the occupational areas in which itis authorized by DOS to sponsor participants so it is necessary to assure that thesponsor’s program designation allows for training in the desired field. DOS generally relies upon the Department of Labor’s former Schedule B as areference point for unskilled occupations 62 . The length of a J-1 trainee program may range from a minimum of three weeksto no longer than 18 months in duration. In October, 2003, the DOS notified J-1sponsors that an alien may be sponsored under the J-1 trainee category only one time,56 22 CFR § 62.22(d) (April, 11, 2002).57 22 CFR § 62.22(b) (April, 11, 2002).58 22 CFR § 62.22 (April, 11, 2002).59 22 CFR § 62.2 (April, 11, 2002).60 Id.61 22 CFR § 62.22(c) (2) (April 11, 002).62 22 CFR § 62.22(c) (1) and Appendix E to Part 62 (April 11, 2002). 10
  • with few exceptions. Exceptions to this limit must be obtained by contacting the AssistantGeneral Counsel to the DOS Exchange Visitor Program Designation Branch. Theagency has also said that a departure of 30 days or more serves to terminate a J-1alien’s program. This would appear to preclude a trainee from engaging in a programwhich contemplates return to the home country of a month or more within the authorizedperiod of stay, even if the purpose is to allow the alien to transfer the skills gained backto the home country for a short period and then to return to continue the program. J-1 trainees and any accompanying dependents in J-2 status must be covered byhealth insurance which meets DOS regulatory requirements. Willful failure to maintainsuch insurance is a ground for termination of the exchange visitor’s program and thesponsor is required to report such termination to the Department of State. NOTE: Where the participant is coming to the U.S. to provide as opposed toreceive training, the “specialist” J-1 category may be used for this purpose since it allowssponsorship of an expert in a field of specialized knowledge or skill to come to the U.S.for “observing, consulting, or demonstrating special skills” 63 . Training vs. Employment Before contacting a prospective training sponsor, counsel needs to evaluatewhether the proposed activities constitute a “bona fide” training program and not simplygainful employment 64 . It is best to request from the client a training program, brokendown into training segments, which delineates for each segment: • The period of time required; • The type of training activity, e.g., classroom training, seminars, rotation through several departments, on-the-job training, attendance at conferences, and site visits 65 ; • The skills to be acquired, e.g., knowledge of company procedures and process, product marketing, or a manufacturing process; • Who will provide continuous supervision of and conduct the periodic evaluations of the trainee 66 . The training plan must also contemplate evaluations of the trainee’s progressand the program at least at the mid point and end of the program 67 . There must also bea determination that the trainee will not assume a position which is filled or would befilled by regular full-time or part-time employees 68 . This exercise helps employer construct an organized training experience tocomply with federal regulations and, more importantly, to better assure a successfultraining experience for both the trainer and trainee. Most umbrella J-1 sponsors offeradvice and assistance to the client in putting together an appropriate training programplan. Putting the program sponsor directly in touch with the employer is good practice63 58 Fed. Reg. 15181 (Mar. 19, 1993) (supplementary information); 22 CFR § 62.4(g) (April 11, 2002).64 58 Fed. Reg. 15187 (Mar. 19, 1993) (supplementary information); 22 CFR § 62.22(b) (April 11, 2002).65 22 CFR § 62.22(d) (1) (April 11, 2002).66 22 CFR § 62.22(g) (April 11, 2002).67 Id.68 22 CFR § 62.22(d) (2) (ii) (April 11, 2002). 11
  • instead of trying to be in the middle. If the facts do not show that it is a legitimate trainingopportunity, then other visa options should be considered. It is important to note that the alien need not be an employee of the entityproviding the training. The J-1 program is flexible in terms of the relationship betweenthe trainee and the entity providing the training. For example, in a situation where arepresentative of an overseas customer needs to come to a U.S. company to receive on-the-job training in a process or product. It is quite difficult, in this situation, to obtain anemployment visa, such as an E, H, L, or TN, if there has not been and/or will not be anemployment relationship between the U.S. company and the representative. The Jprogram is flexible enough to allow for sponsorship of the representative in such acircumstance. The financial support for the trainee can also come from any source – thetraining entity, a foreign employer or other third party, or the trainee’s personal fundswould all be allowable. Process of Obtaining J sponsorship Assuming the employer provided a training schedule and otherwise arranged fora legitimate training experience and does not have its own program designation from theDOS, the next step is to contact one of the umbrella J program sponsors. The sponsorwill usually have a web site where program information, documentary requirements, andapplications can be found. It is crucial to review the sponsor’s site and the applicationforms carefully for any restrictions specific to that sponsor’s program, which may gobeyond those in the regulations. For example, umbrella sponsors may require that theprospective trainee have been outside of the United States for 60 to 90 days prior to thebeginning date of the proposed training program. This requirement helps the J programsavoid applications from employers seeking to use the trainee program as a continuationof earlier training or employment or to bridge gaps between one status and another suchas a student whose OPT will expire before an H-1B is available. Counsel should also be sure to check that the J-1 sponsor’s program designationprovides for the particular field of training and, for that field, allows for sponsorship forthe required period of training contemplated. Sponsors do vary on these issues. Completed applications are submitted to the prospective umbrella sponsor, whichconducts a review and may request additional documentation. The umbrella programsalso offer relatively low cost health insurance to meet the regulatory requirements forsuch coverage for the exchange visitor and any dependents. Note that, although manyemployer health plans may meet the minimum health insurance requirements, theyusually do not contain provisions to cover the costs of evacuation of the trainee back tothe home country in case of illness or for repatriation of remains. Also, such insurance isavailable whether or not the exchange visitor will be an employee of the entity providingthe training, on-the-job training is involved and regardless of the source of funding for theexchange visitor’s stay. If the employer does not wish to purchase insurance through theprogram sponsor, it will be required to demonstrate that other insurance meetingregulatory requirements will be in place during the program. Once satisfied that the training program is appropriate for sponsorship, theprogram sponsor will issue Form DS-2019 which is generated through the Student andExchange Visitor Information System (SEVIS), the government system designed to trackF, M and J status aliens. The form may be provided by the program sponsor’s 12
  • Responsible Officer (RO) or Alternate Responsible Office (ARO) to the attorney, thecompany, or be sent to the alien directly in the home country or through a collaboratingorganization in the home country. It is important for counsel to review the DS-2019carefully to assure that the information is accurate. Biographic data (name, date of andcountry of birth, country of nationality and country of residence) should be consistentwith that contained in the applicant’s passport. The occupational field in which thetraining is being provided, countries of citizenship and of permanent residence, andsources of funding are important in determining whether the two year foreign residencerequirement of INA Section 212(e) applies. Incorrect information should be brought tothe attention of the RO or ARO to obtain a corrected DS-2019 prior to the visaapplication or entry to the U.S. The consular officer will also have made an initialdetermination noted on the DS-2019 and on the J-1 visa stamp as to whether the twoyear foreign residence requirement applies. However, these determinations are notalways accurate and should be reviewed carefully. Most J-1 trainee sponsors now offer expedited service which reduces what mightnormally be a 2 month process to review the application and issue the DS-2019 to amatter of a few days. This processing time, as well as that for the J visa applicationshould be considered in setting the beginning date of the training program so that theprogram start and end dates on the DS-2019 are realistic. If the alien arrives late or theprogram sponsor is not prepared to commence the training when the alien arrives, it mayprove necessary to seek an extension of the program to which the program sponsormust consent. The DOS may need to be consulted concerning an extension of stay. Applying for the J Visa and Entry Before the alien may apply for the J-1 visa for admission, Form I-907 must befiled on-line or through the mail along with payment of the $100 SEVIS fee. A J-1 visaapplicant must submit: • Completed Forms DS-156, DS-157, and DS-158; • A passport valid for at least six months beyond the end date of the DS-2019; • Form DS-2019; • The $100 application fee and, where applicable, reciprocity fee; • A copy of the receipt for payment of the $100 SEVIS fee; • A passport type photo; • Evidence of financial support not designated on Form DS-2019 or in the case where support is from personal funds; and, • Documentation/information establishing that the applicant intends to return to an unabandoned permanent residence in the home country upon completion of the exchange program. The applicant should sign and date the DS-2019 as indicated prior to submissionof the form with the application. Because a J-1 visa applicant must satisfy the consul ofthe likelihood of return to the home country, applications for J-1 visas are best filed withthe U.S. consul in the applicant’s home country. This is particularly true for applicantsfrom countries where economic or political conditions are difficult. J-1 visa applicantsfrom such countries find, at best, mixed results in third countries, such as stateside U.S.consuls in Canada or Mexico. The refusal rates for J-1 exchange visitor visa applicationshave dropped somewhat as a result of a DOS Visa Office cable sent to U.S. consuls last 13
  • year urging them to take into account that student and exchange visitor applicants maynot have the ties to the home country which apply to applicants. 69 This has had apositive impact on student visa applicants, including those under the F-1 and J-1 studentcategories. Trainees, other than perhaps those who are earlier in their careers, may notbenefit from this less restrictive viewpoint. For example, an individual who is making acareer change later in life or who is self-employed or does not have a firm position in thehome country could face a refusal if other factors indicating significant ties to the homecountry are not evidenced. In this regard, treatment may be similar to that accorded a B-1 trainee visa applicant, although consuls treat J-1 visa applicants more favorably as ageneral rule. A Canadian citizen would apply directly at a port of entry for admission in J-1 status since Canadians are visa exempt. When the J-1 is admitted to the U.S., the period of authorized stay indicated onForm I-94 is “duration of status” or “D/S”. This is defined as the period from thebeginning to the end of the validity dates of Form DS-2019 plus a 30-day grace period ifthe alien completes the exchange program. The alien may apply to change status toanother category within this period unless barred by a failure to maintain status or by thetwo-year foreign residence requirement (see below). Note that because the exchangeprogram is limited to the period on Form DS-2019, any employment which is a part ofthe training program must end by the end date stated on the DS-2019 and may notcontinue during the grace period. A change of status to J-1 visa status within the U.S. is possible so long as theprogram sponsor does not require the trainee to apply for a visa and/or enter as a J-1.Counsel needs to caution the training entity that a change is not an application whichcan be treated to premium processing by U.S. Citizenship and Immigration Services andthat the variance in processing times can make it difficult to assure that the alien will beable to begin the training program in a timely manner. If the application to change statusis filed too early such that USCIS adjudicates the case more than 30 days before thestart date on the DS-2019, a Service Center may deny the application 70 Changes of J-1 category from the trainee category to another category within theJ-1 visa, such as the student category, are rarely authorized by the DOS, as there mustbe a finding of unusual or exceptional circumstances 71 . It may be possible for a traineeto depart, obtain a new J-1 visa in a new J-1 category and reenter the U.S. Sponsorshipas a J-1 professor or research scholar is prohibited until the trainee has been out of J-1status for at least one year. The J-1 should be provided an initial orientation soon after arrival on the localcommunity and given information including the address and phone number of the RO,program rules, and medical insurance. Any employment which is incidental to the training program is authorized without69 DOS Cable ____________ AILA InfoNet #70 The CIS Nebraska Service Center has taken the position on changes of status that if the start date on theDS-2019 is more than 30 days beyond the date of adjudication and the alien’s status has expired during thependency of the application, the application will be denied. The NSC bases this policy on the regulatoryprohibition on entry of an exchange visitor to the U.S. more than 30 days in advance of the start date of theDS-2019.71 22 CFR § 62.41 (April 11, 2002). 14
  • the need to apply to USCIS for an employment authorization document. The J-1program sponsor must verify the trainee’s entry to the U.S. within 30 days of theprogram start date or report the failure of the trainee to report to the DOS and thetrainee’s SEVIS record is terminated. The trainee is also required to report any changeof residential address in the U.S. to the program sponsor within 10 days of such achange. Reporting this change alleviates the need to file Form AR-11 with theDepartment of Homeland Security. Termination of program for failure to maintainrequired health insurance is also reported to the Department of State. The trainee maynot realize this until she or he travels abroad temporarily and is either refused a new J-1visa, if such is required to reenter, or may encounter difficulty at a port of entry if the U.S.Customs and Border Protection port official checks SEVIS and sees that the trainee’srecord has been rendered inactive. Verification of employment eligibility where on-the-job training is included in theprogram may be completed in Section 2 of the I-9 through review of the trainee’s originalvalid foreign passport, Form I-94, and DS-2019 which are “column A” documents. J-2 Dependents The trainee’s spouse and unmarried children under 21 years of age may applyconcurrently for J-2 visas. The program sponsor provides separate Forms DS-2019 toeach dependent for this purpose. J-2’s apply for work authorization with the USCIS Regional Service Center withjurisdiction over the applicant’s place of residence. This authorization may be obtained inone year increments up to the end date on the J-1’s DS-2019. The J-2 must apply withForm I-765, filing fee, documentation of valid J-2 entry and status and the J-1’s validstatus, and a statement from the J-2 indicating that the funds which will be earnedthrough any employment will not go towards the support of the J-1 72 . Since it may take2-4 months for such authorization to be granted, it may not prove very useful for traineeswho are entering for 6 months or less. If the application remains pending for more than90 days, the J-2 may apply to the district office for an interim employment authorizationcard. Also, trainees who enter for a program of less than a year are generally notaccompanied by dependents. Seeking J-1 program designation Those employers who have ongoing training programs and foresee the need totrain many foreign nationals going forward may envision cost savings due to socialsecurity and other tax exemptions for exchange visitor trainees. They also may wish toavoid trainee sponsorship fees paid to third party umbrella program sponsors. Theconvenience of being able to issue its own DS-2019’s to prospective trainees is alsoattractive. The costs of applying for J-1 program designation, compliance with the Studentand Exchange Visitor Information System (SEVIS) requirements, and programadministration are not insignificant so that there needs to be the prospect ofconsiderable volume to justify the cost and effort in seeking J-1 program designation. Ata minimum, the employer must sponsor five trainees per year to maintain the program72 8 CFR § 214.2(j) (v). 15
  • designation. Regulations published in March, 1993 by the former USIA detailed therequirements for training program sponsors 73 . These delineate both generalrequirements applicable to all J-1 program sponsors as well as ones specific to trainingsponsors 74 . The program application is made through the SEVIS system by completing Form3036 on-line at https://egov.immigration.gov/sevis/ and paying the application fee.Additional documentation is submitted in support of the application and a site visit isnormally conducted before an approval can be issued by the Department of State. The prospective program sponsor may apply for designation in any combinationof specialty and/or non-specialty occupations, and may provide training within anyoccupation within any of the occupational fields for which a designation is received 75 .The applicant must also provide evidence of its ability to provide the training. Thisincludes a certification that: • There is sufficient space, equipment and trained personnel 76 ; • The training program is not designed to recruit and train foreign nationals for employment in the U.S.; and, • Trainees will not be placed in positions that displace full-time or part-time employees 77 . Sample training plans for each field in which training is envisioned as well as foreach expected training plan duration (e.g., 3, 6, 12 and/or 18 month training plans) arealso required 78 . These can be based on either planned training or examples of trainingplans already in existence or used, perhaps through umbrella J-1 sponsors. Documentation to be separately submitted to the DOS includes: • Verification of the existence of the corporation and its good standing; • Certification of U.S. citizenship of the company and that the prospective RO and ARO’s are either U.S. citizens or lawful permanent residents; • Evidence of the financial ability of the sponsor to run the program; and, • Evidence of prior experience in administering international exchange programs. Documenting experience with expatriate or other corporate international program administration is useful in this regard. If the application languishes at the DOS Exchange Visitor Designation Branch fora number of months before it is finally reviewed, updated financial and good standingdocumentation will likely be required. A program sponsor is required to provide aprospective exchange visitor with information about the training program which shouldinclude:73 58 Fed. Reg. 15186 (Mar. 19, 1993).74 22 CFR § 62.3, 62.5, 62.9, 62.22(d) (April 11, 2002).75 22 CFR § 62.22(c) (3) (April 11, 2002).76 22 CFR § 62.22(d) (1) (April 11, 2002).77 See note 19, supra.78 22 CFR § 62.22(f) (April 11, 2002). 16
  • • A written statement concerning any stipend to be paid; • Costs and fees which the trainee must pay; • Housing arrangements; • The insurance requirement; • The applicability of INA Section 212(e); • Estimated living expenses for the geographic area where the alien will be residing in the U.S. during the program; and, • A summary of the training program 79 . The RO and ARO(s) are responsible to the DOS for the conduct of the exchangeprogram. Regulations require them to be thoroughly familiar with the exchange visitorprogram rules and the Codebook and Instructions booklet provided by Department ofState 80 . The RO and ARO’s must provide advice and assistance to exchange visitors,conduct official communications regarding the program, and maintain custody andcontrol of exchange program documentation and comply with the reporting and otherrequirements under the Student and Exchange Visitor Program and SEVIS computersystem. The software for the SEVIS computer system is provided by the DOS to thesponsor who installs it and trains its RO and ARO’s in its use. Although DOS hasgrudgingly allowed a sponsor’s outside counsel to serve as an ARO, the RO or anotherARO who is an employee of the sponsor and who is familiar with the program must signthe DS-2019. The RO must submit an annual report regarding program activities to theDOS. As can be seen from the above, obtaining a designation and administering anexchange visitor program for the purpose of sponsoring trainees is likely to proveundesirable except for those prospective sponsors who have an ongoing need to trainmany foreign nationals. The costs can easily exceed the perceived FICA savings whichemployers enjoy due to the exemption of J-1’s from U.S. social security. In determiningwhether seeking a J-1 designation, consideration should also be given to applyingconcurrently for “specialist” designation, which may be advantageous as a way to bringover individuals to provide training or to demonstrate and convey to U.S. individuals asponsored foreign national’s expert skills in a field. The Two Year Foreign Residence Requirement The applicability and potential impact of INS Section 212(e) must be consideredin whether to have a trainee sponsored as a J-1. The two-year foreign residencerequirement requires a J-1 visitor to return to his or her home country or country of lastpermanent residence for two years before being eligible to change status in the U.S. tomost other nonimmigrant visa categories 81 from J-1 status or to obtain permanentresidence. It also precludes issuance of an H or L visa to a former exchange visitor whohas not fulfilled the requirement. This requirement applies if:79 22 CFR § 62.22(l) (April 11, 2002).80 22 CFR § 62.11 (April 11, 2002).81 INA § 212(e), 8 USC § 1182(e); Also see INA § 248 and 8 CFR 248.2(c) and (d). 17
  • • The exchange visitors program is wholly or partially financed, directly or indirectly, by a U.S. government agency or by the government of the country of his or her nationality or last place of residence; • The skills to be acquired by the exchange visitor have been designated by the DOS as required by the exchange visitors country of nationality or last place of residence 82 ; or • The exchange visitor participates in a program of graduate medical education or training 83 . Although the consular officer may render an initial determination on the aliensForm DS-2019 and/or visa whether or not he or she is subject to the requirement, this isnot a final determination and may be incorrect. Counsel needs to determine in advancewhether the requirement will apply. The DOS Waiver Review Branch can render adetermination as to the applicability of the requirement by providing an advisory opinion.Although industrial trainees are usually not government funded for their programs, theskills list frequently applies. For example, the government of China has indicated to theU.S. Department of State that all skill areas on the Exchange Visitors Skills list are inneed in China so that every J-1 who is a citizen or resident of China at the time ofobtaining J-1 status is subject to the requirement. This requirement would present a significant problem if the employer whoprovided the training later decides that it needs to keep the exchange visitor in the U.S.or bring her or him back to the U.S. to be employed. The alien must reside andaccumulate two years of physical presence in the home country in order to fulfill therequirement. Except in rare instances, the requirement cannot be fulfilled in a thirdcountry. The DOS recently underlined this policy in recently determining that a citizen ofa member country of the European Union cannot fulfill the requirement throughresidence and physical presence in another country in the EU. The requirement can be waived for industrial trainees in the followingcircumstances: • Where the home country does not object to the alien not fulfilling the requirement; • If the alien would be persecuted by the home country government; • If a U.S. citizen or permanent resident alien spouse or child of the exchange visitor would suffer an exceptional or unusual hardship if the exchange visitor were required to fulfill the requirement; or, • Where an interested U.S. government agency recommends to the DOS that a waiver be granted 84 . The J-1 exchange visitor visa can be a very useful training visa; however, thesponsor and the foreign national must be fully advised of all the advantages anddisadvantages. Counsel must also investigate whether the two-year foreign residencywill apply to any individual case and advise both the sponsor and affected foreign82 CFR § 62.44 (a) (1) (ii); 9 FAM, note 1.3 22 CFR § 41.62; OI § 214.2(j) (1) and (7). The ExchangeVisitor Skills List appears as an Appendix to OI 212.8(e) and as Exhibit II to 9 FAM, notes 22 CFR§ 41.62.83 INA § 212(e), 8 USC § 1182(e).84 22 CFR § 62.44 18
  • national accordingly. CONCLUSION Visa options for foreign nationals entering into the United States either to receiveor provide training in a specialized or non-specialized field can be challenging for theU.S. company wishing to train or be trained by a foreign national in the United States;however, the economic engineer of globalization has made these visa options anecessity for U.S. companies competing or expanding globally. Consequently, counselmust understand the intricate requirements of each appropriate visa classification, thenature of the clients training program, and the future goals of its clients. The selection ofthe appropriate visa classification for the training depends on the prospective trainee’s ortrainees’ background and the sponsor’s goals. The petition process for a particular visaclassification, such as a H-3 or a J-1 visa, may be time consuming, demand substantialdocumentation and subject prospective trainees and U.S. companies to high levels ofscrutiny by USCIS, DOS and CBP. The trainee visa options are not intended to by-bassrestrictions in other temporary employment authorized visa categories and should beused with this purpose in mind. We hope this article provides practitioners with guidanceregarding the types of visas appropriate for foreign nationals entering the United Statesfor bona fide training purposes. 19