Our Process

H-2 Visa Category
The H-2B visa category is used by U.S. companies temporarily to employ skilled or unskilled foreign nationals in nonagricultural positions for which the employer has a temporary need and for which qualified U.S. workers are unavailable. The company must intend to employ the foreign nationals for a temporary period and the employer's need for the skills possessed by the foreign nationals must also be temporary. In addition, the employer must seek a "labor certification" from the U.S. Department of Labor (DOL) certifying that:

The foreign national is not displacing a qualified unemployed U.S. worker in the region of proposed employment.
The proposed employment does not adversely affect the working conditions of U.S. workers who are similarly employed.

Application Process

As the first step in obtaining H-2B status for alien workers, the U.S. employer must file a request for a labor certification with the state employment service office with jurisdiction over the location of the proposed employment. The request can cover one alien, or a number of aliens filling the same position who will be working in the same location.

The approved labor certification, or a DOL notice denying certification, must be filed as a part of the second step-a nonimmigrant visa petition filed by the employer with the INS. The petition may be filed for multiple aliens when the labor certification has been issued for multiple aliens, and the beneficiaries will be performing the same service for the same period of time and in the same location. Under a rule finalized in December 1995, aliens are not required to seek their visas at the same consulate in order to be included in the same petition.

Following approval of the petition, the third and final step occurs-the foreign national or nationals must take the petition approval notice to a U.S. consulate to apply for H-2B visas permitting their admission to the United States.

Preparation of the Papers to Obtain H-2B Status

There are four components of the papers that must be prepared to obtain H-2B classification for a temporary employee:

The application for DOL certification
A company letter and other pertinent documentation supporting the labor certification application
The H-2B petition, filed in duplicate on INS Form I-129 and H Supplement
A company letter supporting the H-2B petition (The letter must state why it is not feasible for the employer to hire unemployed U.S. persons, explain the temporary need for someone to fill the position, and assert the company's intent to employ the alien temporarily.)

Once the labor certification procedures have been completed at DOL, the following documents must be submitted to the INS office having jurisdiction over the area of proposed employment:

The DOL labor certification or denial
The H-2B petition (with appropriate filing fee)
The company's letter supporting the petition
Any rebuttal evidence, in the case of a DOL denial of the labor certification
Documentation of each alien's qualifications to meet the minimum requirements set for the job in the labor certification
Once the company obtains the petition approval notice (INS Form I-797), it must forward the notice to the alien or group of aliens. They then may take the notice to a U.S. consulate and obtain visas.

H-3 Visa Category

The H-3 visa category is used by U.S. companies and institutions to bring foreign employees to the United States for a temporary period in order to participate in an established company training program. The training program may provide classroom training, or a combination of classroom and on- the-job training, which is unavailable in the alien trainee's home country. The H-3 visa category is therefore used as a means of increasing the foreign employee's knowledge and skills, thereby enhancing his or her worth to a company's foreign operations or other appropriate foreign operations.

Application Process

The U.S. Company must file a preliminary petition with the INS in order to bring foreign employees to the United States to participate in an established training program. An outside limitation of two years is placed on the duration of the training. Under previous regulations, the H-3 petition could be approved for the duration of the training program, without any explicit outside limit on the length of such programs.

Once the preliminary petition is approved, the foreign national must take the approval notice to a U.S. consulate to obtain an H-3 visa. If the foreign national is already present in the United States in a different nonimmigrant category or with a different employer, his or her status must be changed by filing a separate application in addition to the employer's preliminary petition.

Basic Requirements for Obtaining H-3 Visa Status

1. The alien worker, or a group of alien workers, must be entering the United States to participate in an existing company training program.

The H-3 petition will not be approved unless the existence of an actual training program can be documented. In this connection, it is extremely useful if the company can submit evidence of any prior training of foreign workers under the program, or establish that foreign workers are currently being trained. The program must be "structured, articulable, and sequential" under INS standards. This standard means that it must include an organized curriculum and be supported by formal materials, books, a syllabus, and methods of evaluation of the trainees.

2. The training of the foreign workers cannot be conducted or engaged in with the intention of eventual employment in the United States.

The INS will not authorize the training of foreign workers under the H-3 category if the training program is designed to recruit and train aliens for eventual staffing in U.S. operations. An H-3 petition should therefore include a description of the overseas position for which the training will prepare the alien. In fact, the most important aspect of the H-3 petition is a detailed description of the purpose of the training with emphasis upon the utilization of the trainee or trainees abroad. Note that an employer can have legitimate reasons for providing training other than to place the alien with the employer's operations in the United States or abroad. For example, many large companies provide training to foreign nationals simply to develop a network of foreign contacts placed in large foreign companies who are familiar with the U.S. company's operations and sympathetic to its goals and products. When placement with the training company is not the goal, and particularly when the usual purpose of the training program is to place trainees with the U.S. offices of the trainer, the petition must be strongly backed by a reasonable explanation of the purpose of the training and the use to which the alien trainee can put it upon completion of the program.

3. The alien trainees cannot be employed to engage in productive employment that is other than incidental to the training program.

A company must establish that the alien trainee will not be engaged in productive employment that will displace a U.S. worker. Although productive employment is not completely barred, it must be incidental to the training and not the primary reason for the alien's employment. Note that the category's coverage of temporary training was qualified by the 1990 Act with the condition that the training program not be "designed primarily to provide productive employment." While it was possible to interpret the 1990 Act's revision of the H-3 category as a liberalization, the INS read the revision in the 1990 Act as an endorsement of the prior rules and, accordingly, retained the requirement that productive employment must be only incidental to the training.
In practice, any productive employment is considered unacceptable to the INS. To determine whether the alien is engaged in productive employment, the INS will evaluate the amount of time spent in a classroom setting as opposed to the time that is spent in on-the-job training. The more on-the-job training that is called for by the program, the more likely will be the conclusion by the INS that the alien is engaged in unacceptable productive employment.
Note that on-the-job training should be acceptable to the INS, and one leading INS case even approved a training program consisting completely of on-the-job training. This type of training should be limited to on- site observation, orientation, and continual supervision. The key question is whether the function performed by the alien trainee would need to be filled by a U.S. worker if the alien was not filling it. If the alien's presence is purely superfluous to the operation or task that he or she is observing, then the on-the-job training should be permissible.

4. The training program must provide knowledge or experience that is unavailable in the alien's country of residence.

The INS will not approve an H-3 petition when the training a company is providing is available to the alien in his or her home country. This rule also applies to any classroom instruction that the alien will receive.
When a multinational corporation is providing training at its headquarters in the U.S., it should be able to establish that there is no comparable training available abroad. Also, for foreign-based corporations, training in the United States is irreplaceable in areas where the market or other business factors are unique. The INS does not always accept the argument that specific training in U.S. techniques is the goal of the training, regardless of the affirmations of the training company on this point. The INS will often focus on the generic type of training-business management-and conclude that it is available in many industrialized countries, even though the training company has emphasized that the important aspect of the training is an introduction to U.S. management techniques which is required for the trainee to be placed in a management position with the company abroad. The training company should win its case for this type of training, but unfortunately, in many instances, it may have to do so on appeal of an initial denial of the H-3 petition.

Preparation of the Papers to Obtain H-3 Visa Status

The nonimmigrant visa petition for H-3 classification that must be filed as a preliminary matter with the INS includes:

The petition, in duplicate (INS Form I-129 and H Supplement).
The company's letter to support the petition.
Documents that support the letter and the petition, including a detailed description of the company's training program.
The INS charges a standard filing fee, $130, for any I-129 filing, whether it is an initial or amended petition, a change of status, or an extension of stay. The fee is $130 regardless of the number of H-3 trainees included in the same petition. Payment can be made by check or money order payable to "Immigration and Naturalization Service."
Form I-907 and $1,000 fee (if seeking premium processing)