Employers requiring their overseas employees to undergo temporary, job-related training in the U.S., often opt for the H3 trainee visa. The H-3 visa is available to foreign nationals coming temporarily to the United States to receive training that is not available in their home country (as long as it’s not graduate or medical education training).
An often overlooked visa option, however, is the B1 in lieu of H-3 visa, which allows foreign national employees to participate in professional training programs of short durations in the U.S.
B1 In Lieu of H3
The B1 Business Visitor visa generally 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 also be used in lieu of the H-3 trainee visa by employees who are participating in short-duration training programs. 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 B1 In Lieu of H3 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. This foreign employing entity must continue to pay the employee’s salary while s/he is in the U.S. It’s important that the applicant 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.
Evidentiary Requirements For B1 In Lieu of H3 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:
- The proposed training is not available in their own country;
- That they will not be replacing US workers, i.e. 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;
- They will not engage in productive employment unless such employment is incidental and necessary to the training;
- The training will benefit the beneficiary in pursuing a career outside the United States;
- The intended stay in the United States is temporary;
- There is a definite time limitation to such training;
- They will generally 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:
- The purpose of their trip is to enter the U.S. for job-related training;
- They plan to remain for a specific, limited period;
- They have enough funds to cover their expenses in the U.S.;
- They have compelling social and economic ties abroad and
- 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.
B1 In Lieu of H3 And H3 Trainee Visa : A Quick Comparison
|Factors||B1 in Lieu of H3||H3 Trainee Visa|
|USCIS Petition||Not required||Required|
|Self Employed Professionals||Self-employed professionals would not qualify based on the fact that there is no foreign entity employing them.||A U.S. company can petition for self-employed professionals to participate in a training program in the U.S.|
|Visa for Dependents||Dependents do not get a visa automatically. They have to qualify individually for the B2 visa.||Spouse and children who are under the age of 21 may accompany the trainee on H-4 visas.|
|Dependents’ activities while in U.S.||Dependents cannot study or work on a B2 visa. A separate F1 visa must be obtained in order for children to study in private school (F1 is not available for primary or high school public education).||Dependents in H4 classification may study. They need not apply for F1 student visa. However, they will not be permitted to work in the United States.|
|Restriction on future H or L classification||No restriction||Foreign nationals on the H-3 trainee visa who have spent 24 months in the United States 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.|
|Status in U.S.||B-1 visa holders are not eligible to apply for a social security number. Depending on the jurisdiction, they may be able to apply for a driver’s license in the U.S.||H-3 trainees should be able to receive social security number and obtain a driver’s license..|
Companies who need 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, some consulates are not inclined to grant this visa and will insist that the US company file the H-3 petition, which could take several months to be adjudicated and is often strictly scrutinized.
Therefore, it’s a good idea to consult with an immigration attorney before beginning the process of obtaining the B-1 in lieu of H-3, or the H-3 visa so that all options are weighed closely
VisaPro immigration attorneys’ had experience handling both B-1 in lieu of H-3 and H-3 trainee visas. Schedule A Free Immigration Consultation Today >>. We’ll analyze your specific situation and recommend the most effective strategy based on our attorneys’ near 100% success rates.
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