Category Made Easy

Correct Background

You must have the correct background and abilities for the job you have been offered. For example, if you are a quali­fied insurance salesman but are offered a job supervising a catering project, you will not be granted an H-2B visa for that job because you have no background in catering. It is irrelevant that your native intelligence and general knowledge of business may make you quite capable of handling the catering job. Likewise, reliability or willingness to work hard, characteristics difficult to find and much sought after by real-world employers, are not a usCIs consideration. If you lack the required background in the job offered, the petition will fail.

H-2B visas can be issued to unskilled as well as skilled workers. If your job offer happens to be for employment as an unskilled worker, there are, by definition no specific background quali­fications for you to meet. under these circumstances, your natural abilities may be a consideration, but you do not need to be concerned about having the correct background.

Intent to Leave the U. S

E-1 visas are meant to be temporary. At the time of your application, you must intend to depart the U. S. when your business there is completed. As previ­ously mentioned, you are not required to maintain a foreign residence abroad.

The u. s. government knows it is dif­ficult to read minds. Expect to be asked for evidence showing that when you go to the U. S. on an E-1 visa, you eventu­ally plan to leave. In many nonimmigrant categories, you are asked to show proof that you will keep a house or apart­ment outside the U. S., indicating that you eventually intend to go back to your home country. You do not need to keep a home outside the U. S. to qualify for an E-1 visa—but it would help. You will certainly be asked to show that you have some family members, possessions, or property elsewhere in the world as an incentive for your eventual departure from the United States.

These three measures have been partly derived from our own experi­ence and not the immigration laws. It is

possible for an E-1 visa to be approved with a smaller amount of trade than we have described in our three tests. With E-1 visas, a great deal is left to the judgment of the USCIS or consular officer evaluating the application.

Possibilities for a Green Card
From E-1 Status

If you have an E-1 visa, you can file to get a green card, but being in the U. S. on an E-1 visa gives you no advantage in doing so, and in fact may prove to be a drawback. That is because E-1 visas, like all nonimmigrant visas, are intended only for people who plan on leaving the U. S. once their jobs or other activities there are completed.

If you apply for a green card, you are in effect making a statement that you never intend to leave the United States. Therefore, the U. S. govern­ment may allow you to keep E-1 status while pursuing a green card, but only if you can convince it that you did not intend to get a green card when you originally applied for the E-1 visa, and that you will leave the U. S. if you are unable to secure a green card before your E-1 visa expires. Proving these things can be difficult. If you do not succeed, your E-1 visa may be taken away. Should this happen, it may af­fect your green card application, since being out of status or working without authorization may be a bar to getting a green card in the U. S., or may create a waiting period of three or ten years if you depart the U. S. and apply for a visa. (See Chapter 3.)

Employees of the International communications agency

Participants in this particular exchange visitor program may be issued j-1 visas for up to ten years or even longer if the director of the International Communica­tions Agency makes a special request to

uscis.

6. research assistants Sponsored by the national Institutes of Health

Participants in the Нін research assistants exchange visitor program may be issued J-1 visas for a period of up to five years.

7. Au Pairs

Au pairs who are between age 18 and 26 may come to the U. S. on J-1 visas to live in and perform child care (but not do other housework) for U. S. families. Au pairs may work no more than ten hours per day, 45 hours per week, be paid at least the minimum wage, and must attend an institution of higher education to earn at least six hours of academic credit. As of this writing, only a few agencies have been approved to issue Certificates of Eligibility for bringing au pairs to the United States. Stays are limited to only one year and cannot be extended. If this program interests you, check the State Department website at http://exchanges. state. gov.

Exception to the Visitor’s Visa requirement: The visa Waiver Program

If you’re planning to come to the u. s. for tourism or business, are willing to leave within 90 days, haven’t been denied past visas or violated their terms, and come from a country that does not have a history of illegal immigration to the u. s., you may be able to avoid formally apply­ing for a visa before your trip. A so-called visa waiver is available to people from the 27 countries currently participating in the Visa Waiver Program, including: Andorra, Austria, Australia, Belgium, Brunei, Den­mark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Lux­embourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, san Marino, singapore, slovenia, spain, sweden, switzerland, and the united Kingdom. (Foreign media representatives, however, cannot use a visa waiver, as the purpose of their stay is not considered business. They must obtain a nonimmigrant media visa.)

Each visitor who enters under the Visa Waiver Program must arrive with a trans­portation ticket to leave the united states. They must also present what’s called a machine readable passport, that is, one with two lines of scannable characters at the bottom of the biographical informa­tion page. The passport must be good for at least six months past the date of entry. Entry under the Visa Waiver Program is permitted on land through Canada or Mexico, but qualifying visitors must show evidence at the border of sufficient funds to live in the u. s. without working.

When you enter the u. s. under the Visa Waiver Program, you will not be allowed to change your status to another nonim­migrant classification or apply for a green card without first leaving the country.

(The only exception is for persons who marry a u. s. citizen or are the unmarried children or parents of a u. s. citizen.)

Participation in the Visa Waiver Pro­gram is optional, not a requirement. Nationals from those countries qualify­ing for visa waivers can still get standard visitor’s visas. You will have more flex­ibility and rights once you enter the u. s. if you come with a visa.

For more information, see the state Department website at http://travel. state .gov/visa/ temp/without/without_1990.html.

Step Three: visa Revalidation

If you must leave the U. S. after your extension has been approved, you must get a new visa stamp issued at a consul­ate in order to return. Bring along all the documents you supplied for your u. s. extension. ■

Getting a Temporary Trainee (H-3) Visa

A. Do You Qualify for an H-3 Visa?………………………………………………. 18/2

1. Your Invitation to a Training Program…………………………………… 18/3

2. Training Is Unavailable in Your Home Country……………………….. 18/3

3. Any Productive Employment Is Incidental………………………………. 18/3

4. You Have the Correct Background………………………………………… 18/4

5. You Intend to Return to Your Home Country…………………………. 18/4

6. Bringing Your Relatives……………………………………………………….. 18/5

B. Quick View of the H-3 Visa Application Process………………………… 18/5

C. Step One: Your Employer Submits an H-3 Visa Petition………………. 18/5

1. Simultaneous Change of Status If You’re Already in the U. S……. 18/6

2. Preparing the Visa Petition………………………………………………….. 18/7

3. Mailing the Visa Petition……………………………………………………… 18/10

4. Awaiting a Decision on the Visa Petition……………………………….. 18/10

D. Step Two: Applicants Outside the U. S. Apply to a U. S. Consulate………………………………………………………………………….. 18/11

E. Step Three: You Enter the U. S. With Your H-3 Visa……………………………………………………………………………………………. 18/13

F. Extending Your U. S. Stay………………………………………………………… 18/14

1. Step One: Extension Petition………………………………………………. 18/15

2. Step Two: Visa Revalidation……………………………………………….. 18/15

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The H-3 visa is useful for a lim­ited group of people—those who have a job in their home country, but have been invited to participate in a training program in the united states. The training may be offered by a u. s. branch of their own company, or by an unrelated u. s. company. however, the training must be unavailable in the worker’s home country. There are no limits on the number of people who can be granted H-3 visas each year.

The USCIS regulations recognize some specific types of trainees as potentially H-3 eligible. These include medical interns or residents who are attending a medical school abroad, if the student will engage in employment as an extern during his or her medical school vacation; and licensed nurses who need a brief pe­riod of training that is unavailable in their native country. (See 8 C. F.R § 214.2(h)(7).)

The H-3 visa can also be used by 50 special education exchange visitors per year—that is, people coming to the u. s. for a special education training program educating children who have physical, emotional, or mental disabilities. (see 8 C. F.R. § 214.2(h)(7)(iv).) The require­ments for this group are slightly different than for other trainees.

Do you need a lawyer? You can’t apply for an H-3 visa without having an employer first—and it’s in your employer’s interest to hire a lawyer to help. A lawyer can help make sure that your application gets done right the first time, and gets decided on before the training program begins.

A. Do You Qualify for an H-3 visa?

You qualify for an H-3 visa if you are coming to the U. S. for on-the-job training to be provided by a U. S. company. Pro­ductive employment in the u. s. can be only a minor part of the total program. The purpose of the training should be to further your career in your home coun­try. similar training opportunities must be unavailable there. Be aware that very few training programs meet the usCIs’s strict qualifications.

You must also possess the necessary background and experience to complete the U. S. training program successfully. Obviously, however, this should be the first time you’ll receive this particular type of training. And, as with many nonim­migrant visas, you are eligible for an H-3 visa only if you intend to return to your home country when the visa expires.

Training programs supporting H-3 visas exist most often in two situations. A multinational company with branches in various countries might train employees in its U. S. branches before sending them to work elsewhere. Or, a U. S. company may wish to establish a beneficial busi­ness relationship with a foreign company. A good way to do this is by bringing in some of the foreign company’s personnel and teaching them about the U. S. busi­ness. These people then develop per­sonal ties with the U. S. company.

Key Features of the h-3 visa

Here are some of the advantages and disadvantages of the H-3 visa:

• You can participate in a training program offered by a U. S. compa­ny and work legally in the U. S. for the company that is training you, so long as that work is incidental to the training program.

• You are restricted to working only for the employer who admitted you to the training program and acted as sponsor for your H-3 visa.

• Your visa can be approved for the length of time needed to complete the training program, although no more than two years are normally

permitted. Extensions of one year at a time may be allowed, but only if the original training has not yet been completed, and only within the overall two-year maximum.

• You can travel in and out of the U. S. or remain in the U. S. continu­ously while your H-3 visa is valid.

• Visas are available for your accom­panying spouse and minor children (unmarried and under age 21), but they may not accept employment in the United States. Children are expected to attend school, and adults can attend school part-time under the terms of the H-4 visa.