H-1B Cap Reached! What are the Alternatives?

By Keil Hackley

August 2005 – On August 12, U.S. Citizenship and Immigration Services announced that the 65,000 congressionally set H-1B visa numbers for the 2006 fiscal year have run out. In consequence, new H-1B applications will not be accepted prior to April 1, 2006 with an employment starting date of October 1, 2006. The cap applies only to initial H-1B petitions, not to current H-1B beneficiaries seeking an H-1B extension. Australian citizens and foreign nationals holding a U.S. Master’s degree as well do not fall under the common H-1B category as they both have their own individual caps.

The best alternative to the H-1B category is the O-1 visa; however, high standards limit the number of eligible beneficiaries. Another option is the H-3 visa, which employers inquire about. This nonimmigrant visa is a paid U.S. traineeship covering a maximum period of two years. Contrary to H-1B visa specifications, H-3 beneficiaries do not need to possess a Bachelor’s Degree to qualify for U.S. training but the H-3 petition has to summarize the beneficiary’s prior training and experience. H-3 Employers in turn do not have to meet the prevailing wage requirements under the H-1B category. However, training obtained as an H-3 cannot be used for H-1B purposes, in that the maximum two years cannot count toward work experience obtained in beneficiary’s specialty area.

The H-3 category being considered a lesser standard than the H-1B, the granting of an H-3 visa relies heavily on an exhaustive “bona fide” training plan. Several specifications have to be met to establish H-3 eligibility. First and foremost, the U.S. training provided under the H-3 mantle cannot be available in the beneficiary’s home country. The training further has to create benefits to the advancement of the trainee’s career abroad. Of particular importance is the working aspect. Although it is possible to work and receive monetary compensation under this traineeship, the work component has to be incidental to the program and cannot displace U.S. workers who normally fill these positions. If the training program lists a substantial salary, likelihood of denial increases. The training program cannot be used as a means to recruit and staff domestic positions with foreign workers. Therefore, it is paramount for the H-3 employer to demonstrate the necessity and the specialty of the training, such as provide reasons for why the training is required, show existence of a physical plant or office as well as presence of training staff, establish evidence of why the employer is willing to incur costs by offering the training, and list benefits the U.S. employer derives from running an H-3 training program.

The training program has to be presented in a highly structured and organized format, accounting for every day the foreign trainee partakes in the program. It has to incorporate a detailed schedule as well as specific objectives and means of evaluation. Classroom hours or theoretical training has to comprise a minimum of 15 percent of total training hours. Most of the practical training has to be conducted under supervision by instructors, mentors, or specialists.

M. Keil Hackley is a partner at the Weston law firm Hackley & Robertson, P.A. (www.hackleyserrone.com) and can be reached at kh@hackleyserrone.com or at 954-349-4994