B-1 In Lieu Of H-3: An Often Overlooked Trainee Visa
03/21/2011
Employers requiring their overseas employees to undergo temporary, job-related training in the U.S., often opt for the H-3 trainee visa. The H-3 visa is available to foreign nationals coming temporarily to the United States to receive training, other than graduate or medical education training, that is not available in their home country. For the benefit of employers and trainees, we present a brief introduction to the often overlooked B-1 in lieu of H-3 visa, which allows foreign national employees to participate in professional training programs of short durations in the U.S.
B-1 in Lieu of H-3
The B-1 Business Visitor visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to attend business meetings or seminars. Because of the nature of the B-1 visa, it can be used in lieu of the H-3 trainee visa by employees participating in short-duration training program. The B-1 in lieu of H-3, like the H-3 trainee visa, is available to employees participating in a training program that is not designed primarily to provide employment.
General Eligibility for B-1 in Lieu of H-3 Visa
To be eligible for this special B-1 visa, the employee should be employed by the foreign entity or branch of the U.S. firm and this foreign employing entity must continue to pay the employee’s salary. The applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the foreign national’s travel or temporary stay. Further, his or her employer must have an office abroad and his or her payroll must be disbursed abroad.
NOTE:
A self-employed professional would fail to qualify for the B-1 option based on the fact that there is no foreign entity employing the applicant.
Evidentiary Requirements for B-1 in Lieu of H-3 Visa
To qualify for the B-1 in lieu of H-3 visa, foreign nationals must present ample evidence to the consular officer demonstrating, amongst other things, that:
1. The proposed training is not available in their own country;
2. They will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers of the U.S. are regularly employed;
3. They will not engage in productive employment unless such employment is incidental and necessary to the training;
4. The training will benefit the beneficiary in pursuing a career outside the United States;
5. The intended stay in the United States is temporary;
6. There is a definite time limitation to such training;
7. They will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay.
In addition to the above, foreign nationals must also satisfy the general eligibility requirements of a B-1 visa by overcoming the presumption of being an intending immigrant. For this purpose, they must demonstrate that:
1. The purpose of their trip is to enter the U.S. for job-related training;
2. They plan to remain for a specific, limited period;
3. They have enough funds to cover their expenses in the U.S.;
4. They have compelling social and economic ties abroad; and
5. They have a residence outside the U.S. as well as other binding ties that will insure their return abroad at the end of the visit.
B-1 in Lieu of H-3 and H-3 Trainee visa: A Quick Comparison
Factor 1 USCIS Petition
B-1 in Lieu of H-3: Not required
H-3 Trainee Visa: Required
Factor 2 Self Employed Professionals
B-1 in Lieu of H-3:
Self-employed professionals would not qualify based on the fact that there is no foreign entity employing them.
H-3 Trainee Visa:
A U.S. company can petition for self-employed professionals to participate in a training program in the U.S.
Factor 3 Visa for Dependents
B-1 in Lieu of H-3:
Dependents do not get a visa automatically. They have to qualify individually for the B-2 visa.
H-3 Trainee Visa:
Spouse and children who are under the age of 21 may accompany the trainee on H-4 classification visas.
Factor 4 Dependents' activities while in U.S.
B-1 in Lieu of H-3:
Dependents cannot study or work on a B-2 visa. A separate F-1 visa must be obtained in order for children to study in private school (F-1 is not available for primary or high school public education).
H-3 Trainee Visa:
Dependents in H-4 classification may study. They need not apply for F-1 student visa. However, they will not be permitted to work in the United States.
Factor 5 Restriction on future H or L classification
B-1 in Lieu of H-3: No restriction
H-3 Trainee Visa:
Foreign nationals in H-3 trainee visa who have spent 24 months in the United States under H or L classification may generally not seek extension, change status, or be readmitted to the United States under H or L classification unless they have resided and been physically present outside the United States for the immediate prior 6 months.
Factor 6 Status in U.S.
B-1 in Lieu of H-3:
B-1 visa holders may not be eligible to apply for a social security number or a driver’s license in the U.S.
H-3 Trainee Visa:
H-3 trainees should be able to receive social security number and obtain a driver’s license.
Conclusion
Companies desiring to send their employees on short-term, temporary job-related training to the U.S. have the option of selecting between H-3 trainee visa and B-1 in lieu of H-3. While the B-1 in lieu of H-3 option does not require a prior USCIS petition as in the H-3 scenario, which could take several months to be adjudicated and is often strictly scrutinized, and can be obtained more expeditiously at the embassy or consulate, some consulates are not inclined to grant this visa or will request an advisory opinion before proceeding. Hence, the decision on which visa would be most appropriate to opt for, would depend on the individual facts and circumstances. Companies therefore must consider all options before identifying an appropriate visa option to suit their particular requirements.
B-1 in Lieu of H-3
The B-1 Business Visitor visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. to attend business meetings or seminars. Because of the nature of the B-1 visa, it can be used in lieu of the H-3 trainee visa by employees participating in short-duration training program. The B-1 in lieu of H-3, like the H-3 trainee visa, is available to employees participating in a training program that is not designed primarily to provide employment.
General Eligibility for B-1 in Lieu of H-3 Visa
To be eligible for this special B-1 visa, the employee should be employed by the foreign entity or branch of the U.S. firm and this foreign employing entity must continue to pay the employee’s salary. The applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the foreign national’s travel or temporary stay. Further, his or her employer must have an office abroad and his or her payroll must be disbursed abroad.
NOTE:
A self-employed professional would fail to qualify for the B-1 option based on the fact that there is no foreign entity employing the applicant.
Evidentiary Requirements for B-1 in Lieu of H-3 Visa
To qualify for the B-1 in lieu of H-3 visa, foreign nationals must present ample evidence to the consular officer demonstrating, amongst other things, that:
1. The proposed training is not available in their own country;
2. They will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers of the U.S. are regularly employed;
3. They will not engage in productive employment unless such employment is incidental and necessary to the training;
4. The training will benefit the beneficiary in pursuing a career outside the United States;
5. The intended stay in the United States is temporary;
6. There is a definite time limitation to such training;
7. They will continue to receive a salary from the foreign employer and will receive no salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses (including room and board) incidental to the temporary stay.
In addition to the above, foreign nationals must also satisfy the general eligibility requirements of a B-1 visa by overcoming the presumption of being an intending immigrant. For this purpose, they must demonstrate that:
1. The purpose of their trip is to enter the U.S. for job-related training;
2. They plan to remain for a specific, limited period;
3. They have enough funds to cover their expenses in the U.S.;
4. They have compelling social and economic ties abroad; and
5. They have a residence outside the U.S. as well as other binding ties that will insure their return abroad at the end of the visit.
B-1 in Lieu of H-3 and H-3 Trainee visa: A Quick Comparison
Factor 1 USCIS Petition
B-1 in Lieu of H-3: Not required
H-3 Trainee Visa: Required
Factor 2 Self Employed Professionals
B-1 in Lieu of H-3:
Self-employed professionals would not qualify based on the fact that there is no foreign entity employing them.
H-3 Trainee Visa:
A U.S. company can petition for self-employed professionals to participate in a training program in the U.S.
Factor 3 Visa for Dependents
B-1 in Lieu of H-3:
Dependents do not get a visa automatically. They have to qualify individually for the B-2 visa.
H-3 Trainee Visa:
Spouse and children who are under the age of 21 may accompany the trainee on H-4 classification visas.
Factor 4 Dependents' activities while in U.S.
B-1 in Lieu of H-3:
Dependents cannot study or work on a B-2 visa. A separate F-1 visa must be obtained in order for children to study in private school (F-1 is not available for primary or high school public education).
H-3 Trainee Visa:
Dependents in H-4 classification may study. They need not apply for F-1 student visa. However, they will not be permitted to work in the United States.
Factor 5 Restriction on future H or L classification
B-1 in Lieu of H-3: No restriction
H-3 Trainee Visa:
Foreign nationals in H-3 trainee visa who have spent 24 months in the United States under H or L classification may generally not seek extension, change status, or be readmitted to the United States under H or L classification unless they have resided and been physically present outside the United States for the immediate prior 6 months.
Factor 6 Status in U.S.
B-1 in Lieu of H-3:
B-1 visa holders may not be eligible to apply for a social security number or a driver’s license in the U.S.
H-3 Trainee Visa:
H-3 trainees should be able to receive social security number and obtain a driver’s license.
Conclusion
Companies desiring to send their employees on short-term, temporary job-related training to the U.S. have the option of selecting between H-3 trainee visa and B-1 in lieu of H-3. While the B-1 in lieu of H-3 option does not require a prior USCIS petition as in the H-3 scenario, which could take several months to be adjudicated and is often strictly scrutinized, and can be obtained more expeditiously at the embassy or consulate, some consulates are not inclined to grant this visa or will request an advisory opinion before proceeding. Hence, the decision on which visa would be most appropriate to opt for, would depend on the individual facts and circumstances. Companies therefore must consider all options before identifying an appropriate visa option to suit their particular requirements.
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