U.S.employers often seek to train or be trained by foreign nationals who need to temporarily enter the United States for this bona fide business purpose. There are a variety of situations which can present themselves, such as a U.S. company must train personnel from abroad on the methods, procedures and processes of the U.S. operations to implement the same practices at oversea operations of a related entity; a U.S. company may purchase equipment or specialized goods from a broad requiring training by an expert of the foreign vendor; or a U.S. company may simply want to provide a opportunity to a foreign national to gain professional experience in the U.S. in their field of specialization as part of an exchange program. Counsel must examine the visa options available given the statutory and regulatory parameters, policy statements and practical requirements of the particular training program. This article will examine three visa options-the B-1, H-3 and J-1 visas–each with different elements but over lapping requirements, advantages and is advantages, practical uses and processing issues

1. Training American Style
by Cora Tekach, Scott Cooper, Lori Chesser, and
M. Mercedes Badia-Tavas
INTRODUCTION
U.S. employers often seek to train or be trained by foreign nationals who need to
temporarily enter the United States for this bona fide business purpose. There are a
variety of situations which can present themselves, such as a U.S. company must train
personnel from abroad on the methods, procedures and processes of the U.S.
operations to implement the same practices at oversea operations of a related entity; a
U.S. company may purchase equipment or specialized goods from abroad requiring
training by an expert of the foreign vendor; or a U.S. company may simply want to
provide a opportunity to a foreign national to gain professional experience in the U.S. in
their field of specialization as part of an exchange program. Counsel must examine the
visa options available given the statutory and regulatory parameters, policy statements
and practical requirements of the particular training program. This article will examine
three visa options - the B-1, H-3 and J-1 visas – each with different elements but
overlapping requirements, advantages and disadvantages, practical uses and
processing issues.
B-1 VISA STATUS FOR TRAINING PURPOSES
Potential Training Uses
The USCIS (legacy INS) and the Department of State recognize that some B-1
business visitors may engage in activities that are appropriate for other visa categories. 1
The B-1 visitor for business category may be used for certain types of business-related
training, largely for circumstances in lieu of the H-3 2 or J-1 status, but also for the
purpose of commercial or industrial training. 3 Additionally, certain educational purposes
such as providing or receiving academic training and conferences are also permissible. 4
B-1 status is also appropriate for the rarely used purpose of individuals who are invited
to participate in the training of Peace Corps Volunteers or who are coming to the United
States under contract pursuant to certain provisions of the Peace Corps Act, 5 and for
participants in the United Nations Institute for Training and Research (UNITAR) program
of internship. 6
When pursuing a B-1 in lieu of the H-3, the foreign national must be employed
abroad and be classifiable as H-3. This requires that the proposed training is not
available in the foreign national’s own country, the individual will not be placed in a
position that is in the normal operation of the business, the individual will not engage in
productive employment (unless incidental and necessary to the training), and the training
will benefit the foreign national in pursuing a career outside the United States.
1
9 FAM, Notes; 22 CFR §41.31: OI §214.2(b)
2
OI § 214.2(b) (3).
3
9 FAM §41.31, Note 10.1(a), INS OI § 214.2(b) (5).
4
9 FAM § 41.31 N.8.
5
9 FAM § 41.31 N10.6.
6
9 FAM § 41.31 N10.7.
1

2. Additionally, the foreign national must continue to receive a salary from the foreign
employer, with 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. 7
The B-1 may be used in lieu of J-1 in circumstances in which a foreign national
has travel funded by the U.S. government for the purpose of engaging in any of a wide
variety of programs. For example, a Foreign Service National employee of an Embassy
or Consulate abroad may travel to the United States at U.S. government expense for
specific training. It will be necessary to show that the J-1 is unavailable for the purpose
of the stay in the United States. In order to make this showing, the sponsoring U.S.
Government agency may certify that such an exchange program does not exist or that
the foreign national’s activities are unrelated to any existing program. 8
B-1 visitors may be permitted to enter the United States in B-1 status to train U.S.
workers in the installation, servicing, or repairing of commercial or industrial equipment
or machinery purchased from a company outside the United States, as long as there is
no “hands on” work. The B-1 status may also be used for those coming to the United
States for building or construction work, but only if those individuals will be engaged
strictly in supervising or providing training to construction workers. 9
B-1 visitors coming to the United States for the purpose of “usual academic
activity” may accept honoraria under the American Competitiveness and Workforce
Improvement Act of 1998 (ACWIA). 10 In order to qualify, the individual may not engage
in activity lasting longer than nine days at any one institution and may not accept
payment from more than five institutions within the previous six-month period. 11
Typically, the B-1 may not be used in cases where the primary purpose of the
stay in the United States would be for study. An exception to this rule is a student at a
foreign medical school who seeks to enter the United States for the purpose of an
“elective clerkship” at a U.S. medical school’s hospital. This exception is permitted with
specific requirements having been met, such as that the individual is attending a foreign
medical school and will receive no remuneration from the U.S. medical school’s hospital.
Further, this exception does not apply to graduate medical training. 12
Requirements
In Matter of Hira, the Board of Immigration Appeals, with Attorney General
affirmation, established the requirements for the business visitor B-1 visa classification.
These requirements are the following:
• The foreign national must be engaged in commercial activity;
• He or she must have a clear intent to maintain a foreign residence;
7
9 FAM 41.31 N11.9.
8
Cable, DOS, 04-State-13720 (Jan. 21, 2004), posted on AILA InfoNet at Doc. No. 04022564 (Feb. 25,
2004).
9
9 FAM § 41.31 N.8.
10
American Competitiveness and Workforce Improvement Act of 1998, Title IV of Pub. L. No. 105-277
(Oct. 21, 1998), 112 Stat, 2381, § 431.
11
Id.
12
OI § 214.2(b) (4), 9 FAM § 41.31, Note 10.4-1.
2

3. • The individual’s principal place of business and the actual place of
eventual accrual of profits, at least predominantly, remains in the foreign
country;
• The foreign national’s stay in the United States must be temporary in
nature (notwithstanding the fact that the business activity may be
ongoing); and
• The foreign national’s salary must come from abroad. 13
Thus, it is clear that the B-1 visa applicant must show intent to return to his/her
foreign residence upon completion of the training. Additionally, the applicant must show
that the purpose of the intended stay is temporary with a definite time limitation. There
can be no “hands on or productive work” (unless it is incidental and necessary to the
training). For B-1 issuance, there may be no salary or other remuneration from a U.S.
source. Note, however that salary paid by the U.S. entity's separate business enterprise
abroad shall not be considered as coming from a “U.S. source.” 14 The U.S. company
may pay all domestic and foreign employees through a centralized payroll system in the
U.S., as long as the B-1 continues to be employed by the foreign branch and the training
in the U.S. qualifies as a B-1 activity. In order for an employer to be considered a
“foreign firm” for this purpose, the entity must have an office overseas.
If the applicant is applying for B-1 in lieu of H-3, the fact that the training may last
one year or more is not in itself controlling, and it should not result in denial of visa.
Further, the applicant must show that the proposed training is not available in the
applicant's own country and the training will benefit the applicant in pursuing a career
outside the United States. 15
If the B-1 visa applicant’s purpose is for commercial or industrial training, there
must be a contract of sale, specifically requiring the seller to perform such services or
training. 16 Additionally, the foreign national must possess specialized knowledge
essential to the seller's contractual obligation to provide services or training; the foreign
national will receive no remuneration from a U.S. source; and the trip is to take place
within the first year following the purchase. 17
Limitations on B-1 for Training
The B-1 visa category may not be used for a foreign national seeking entry into
the United States where the individual would qualify for J-1, A or G, or H-2 status (the
individual must seek H-2 notwithstanding the fact that the salary or other remuneration is
being paid by a source outside the United States, and the petitioner must file a labor
certification). If there is any uncertainty regarding whether a case may be classifiable as
B-1, an advisory opinion must be requested through the Department of State at
www.legalnet.com .
H-3 TRAINING PROGRAMS
13
Matter of Hira, 11 I&N Dec. 824 (BIA 1965, 1966).
14
9 FAM § 41.31 N.3.4.
15
9 FAM § 41.31 N11.9.
16
9 FAM § 41.31 N10.1; OI § 214.2(b) (5).
17
Id.
3

4. General Considerations
H-3 training programs are developed and administered by the United States
entity offering the training to the foreign national. Unlike J programs, there is no pre-
approved intermediary. The training entity applies directly to CIS on Form I-129 with a
detailed statement of the proposed program with extensive documentation to support its
validity.
The H-3 category requires that the foreign national not have immigrant intent -
meaning that he or she intends to leave the United States at the end of the training
period. 18 It also requires the training not be available in the foreign national’s home
country. 19 The beneficiary may not be placed in a position where U.S. workers are
regularly employed, 20 and no “productive employment” is allowed unless it is incidental
to training and necessary for preparing the beneficiary to perform a function outside the
United States. 21 The training must prepare the beneficiary to pursue a career outside
the United States 22
The regulations provide that training may not be granted in certain situations,
which include the following:
• Training which is too general or has no objective means of evaluation;
• Training which is not compatible with the nature of sponsor’s business;
• The beneficiary already possesses substantial expertise in the training
area or subject matter;
• It is unlikely the training will be used outside the U.S.;
• The training will result in productive employment, meaning the training
involves functions, responsibilities, duties and schedules which are the
same as a U.S. worker regularly employed at the training site;
• The sponsor does not have sufficient physical plant and personnel to
conduct the training;
• The training is designed to extend time granted for training of a foreign
student. 23
The period of admission on an H-3 may not exceed two years. 24 No extension,
change of status or readmission to H or L state will be granted if the full two years has
been used unless the beneficiary has resided outside the U.S. for six months. 25
Additionally, an extension may be denied if labor certification has been granted or an I-
140 Petition for Immigrant Worker filed for the beneficiary. 26
18
INA §101(a)(15)(H)(iii), 8 C.F.R. § ______
19
8 C.F.R. § 214.2(h)(7)(ii)(A)(1)
20
8 C.F.R. § 214.2(h)(7)(ii)(A)(2)
21
8 C.F.R. § 214.2(h)(7)(ii)(A)(3)
22
8 C.F.R. § 214.2(h)(7)(ii)(A)(4)
23
8 C.F.R. § 214.2(h)(7)(iii)(A-H)
24
8 C.F.R. § 214.2(h)(9)(iii)(C)(1)
25
8 C.F.R. § 214.2(h)(12)(iv)
26
8 C.F.R. § 214.2(h)(16)(ii)
4

5. The I-129 / H-3 Petition may be filed up to six months before training is
scheduled to begin. 27 The petition may be filed for one employee/one location, one
employer / two or more locations with an itinerary, or for multiple beneficiaries being
trained at the same location. However, all aspects of the itinerary, training, and location
should be the same, or separate petitions will be required. 28 Multiple beneficiaries
processing at different consulates may use one petition, however. 29
An H-3 petition may be denied, or an approved petition revoked and entry into
the U.S. by the beneficiary may be denied by CBP and USCIS if the Secretary of Labor
certifies that a strike or other labor dispute involving a work stoppage is in progress in
the occupation at the place where the beneficiary is to be trained, and that the training of
foreign workers would adversely affect the wages and working conditions of U.S. citizen
and lawful permanent resident workers. 30
If the beneficiary has already entered in H-3 status at the time a strike or work
stoppage commences, the beneficiary will not be considered to be out of status solely
because of his or her participation in the strike or other labor dispute, but will still have to
abide by the terms of authorized stay and depart the United States at the end of the H-3
status. 31
The spouse and minor children of an H-3 beneficiary may accompany or follow to
join the trainee into the United States in H-4 status, which is not a work-authorized
status. The dependent would have to qualify independently under a visa classification
authorized for employment incident to status. 32
Special H-3 Programs
The regulations specifically provide for three special programs: medical student
externs 33 , nurses 34 and special education programs 35 .
Externs may qualify for H-3 status if they attend a residency or internship
program at an American Medical Association or American Osteopath Association
hospital and will engage in the externship during school vacation. 36
Nurses may use the H-3 program if they have an unrestricted license in the
country where they received medical education or if the education was in Canada or the
United States and the petition states that the nurse is qualified under State law to
27
28
8 CFR §214.2(h)(2)(i)(B and C)
29
8 C.F.R. §214.2(h)(2)(ii)
30
8 C.F.R. §214.2(h)(17)
31
8 C.F.R. § 214.2(h)(17)(iii)
32
8 C.F.R. § 214.2(h)(9)(iv)
33
8 C.F.R. § 214.2(h)(7)(i)(A)
34
8 C.F.R. § 214.2(h)(7)(i)(B)
35
8 C.F.R. § 214.2(h)(7)(iv)
36
8 C.F.R. § 214.2(h) (7) (i) (A). See also 9 FAM 41.53 N.20.
5

6. receive training. 37 Note that the foreign health care worker certifications required under
INA §212(a) (5) (C) are not required for trainees. 38
The special education program addressed in the regulations is for practical
training and experience in the education of children with physical, mental or emotional
disabilities. 39 It is limited to 18 months duration (as opposed to the usual two years), and
the petitioner must be a facility with professional trained staff and a structured
program. 40 The beneficiary must be “nearing” a B.A. or higher degree or have
“extensive” prior training or experience. 41
Practical Considerations
A detailed, specific outline of the training must be submitted to include the
following information:
• Who will be performing the training (names of staff members and job
titles);
• Where the training will be performed (including photographs of physical
location);
• What course materials will be used (including table of contents for
instruction manuals, for example);
• How many hours will be devoted to each aspect of training, including
breakdown of classroom, hands-on, on-the-job or other type of training;
and
• The statement should also include how the trainee is to be evaluated.
The petition must be very clear regarding the proportion of time devoted to
productive employment versus classroom training. The statement describing the
training, submitted with the petition, should fully describe the amount of time the
beneficiary will devote to classroom training, on-the-job training and productive
employment. Productive employment and on-the-job training must be minimal and
justified as necessary for the training and not to displace a U.S. worker. 42 The training
program must also be compatible with the nature of the employer's business or
enterprise. 43 The employer must have physical plant and sufficiently trained personnel
to provide the training. 44
Training primarily by or at academic institutions is prohibited, 45 but the petitioner
may integrate outside classroom studies into a training program. 46 If classroom
37
8 C.F.R. §214.2(h) (7) (i) (B).
38
William R. Yates, Final Regulation on Certification of Foreign Health Care Workers: Adjudicators Field
Manual Update AD 03031 (Sept. 22, 2003); posted on AILA InfoNet, Doc. No. 03092641, Sept. 26, 2003.
39
8 C.F.R. § 214.2(h)(7)(iv)(A)(1)
40
8 C.F.R. §
41
8 C.F.R. § 214.2(h)(7)(iv)(B)(2)
42
8 C.F.R. § 214.2(h)(7)(ii)(2)
43
8 C.F.R. § 214.2(h)(7)(iii)(B)
44
8 C.F.R. § 214.2(h)(7)(iii)(G)
45
8 C.F.R. § 214.2(h)(1)(ii)(E)(1)
6

7. instruction is too theoretical, hands-on experience could supplement the program,
although care should be taken in justifying the necessity of such practical experience.
Specific proof should be submitted regarding how the beneficiary will use the
training outside the U.S., including proof of the existence of an office abroad or other
place the person will be returning to for work after the training. The ideal situation is if
the petitioner operates a foreign office that employed or will employ the beneficiary
following training. In this case, a letter or other proof from the foreign office stating the
training is not available at the foreign location and committing to employing the
beneficiary following the period of U.S. training is advisable.
A more difficult situation is when the U.S. company plans to open a new foreign
office and will employ the U.S.-trained beneficiary there. In this case, specific plans
regarding when and how the office will be opened, proof of contracts in the foreign
country, letters from suppliers or customers confirming the foreign office is being
opened, and similar evidence would all go to substantiate the claim that the beneficiary
will have a career to pursue outside the U.S. at the end of the training period.
If the petitioner is training the beneficiary for a position at an unrelated third-party
company abroad, the existence of a job offer with the third party should also be well-
documented.
If the beneficiary will work somewhere besides his or her home country at the
end of the training period, proof should be provided that he or she will be authorized to
work in the target location.
Legitimate reasons for H-3 training may include a corporate rotation to enable
overseas employment, a desire to educate an overseas client about the employer's
business as a marketing strategy; or a need to train a co-venturer in the employer's
methodology to facilitate the development of a joint project. 47 However, if the employee
has significant prior experience with a related entity abroad, it may appear that the H-3
training is unnecessary. This assumption may be addressed by including the
beneficiary’s Curriculum Vitae or resume and pointing out gaps in experience or prior
training that are intended to be filled by the H-3 training program. 48
If the training is utilizing prepared course material from an outside source,
evidence should be provided that such training is not available in the home country, such
as the proprietary aspects of the training in addition to prepared course material, or the
need to interact with persons in the U.S. office to fully learn applications of the course
material. A copy of the contents page, or the entire course material if not too bulky,
should be submitted with the petition.
The source and amount of remuneration must also be documented, 49 and care
should be taken regarding this aspect lest USCIS may use it as a basis for concluding
the H-3 beneficiary is being used as a ruse for productive employment. The beneficiary
46
Immigration Briefings, No. 93-05, “Training Visa Categories In The United States” (May 1993), pgs 2
to 8, et al.
47
Id.
48
Id.
49
8 C.F.R. § 214.2(h)(7)(ii)(B)(6)
7

8. will not be able to seek supplemental employment while in the U.S. in H-3 status, so the
amount should be sufficient to live on while in the U.S., and could include room and
board, for instance, as another portion of remuneration.
THE J-1 TRAINEE
The J-1 visa is appropriate for industrial and other types of training where
exchange activities are contemplated pursuant to the United States Information and
Educational Exchange Act of 1948 (Smith-Mundt Act) 50 , as well as the Fulbright-Hays
Act 51 , the statutes which originally authorized the J-1 visa category.
General J-1 training categories
The J-1 category includes three general categories of training – graduate medical
training, flight training, and industrial training. The latter accommodates most every other
type of training in specialty and non-specialty occupations other than that in clinical
health professions. Medical trainees must be sponsored by the Educational Commission
for Foreign Medical Graduates, the only organization designated to sponsor physicians
for post-graduate clinical training. 52 Since the attacks of 2001 and the revelation that
several of the terrorists were trained by U.S. based flight training programs, flight training
sponsorship has been closely monitored. A moratorium on approval of new flight training
programs and agricultural training programs was recently announced by the Department
of State citing a lack of resources to properly monitor such programs 53 . The training
program under the J-1 has survived years of criticism by Congress, labor and
professional organizations, and several studies which have found abuse and lack of
proper controls on the program by the U.S. government 54 .
Industrial Training
The use of the J-1 for industrial training has grown significantly within the past
decade. The Department of State (and former United States Information Agency and
International Communication Agency) has designated both individual sponsor
organizations as well as “umbrella” sponsors to serve as sponsors for training programs.
Sponsor organizations vary in terms of the individual whom they will sponsor.
Some, such as the American Council for International Personnel (“ACIP”), limit
sponsorship to trainees who will train with member employers. Several U.S.-foreign
chambers of commerce, such as the British-American Chamber, German-American
Chamber or French-American Chamber, tend to favor sponsoring individuals of the
chamber’s national group or for member organizations, but not exclusively. Trainees
need not be nationals of the particular foreign chamber partner country. American
50
United States Information and Educational Exchange Act of 1948, Pub. L. No. 402, 66 Stat. 6. (Smith-
Mundt Act).
51
Mutual Educational and Cultural Act of 1961, Pub. L. No. 87-256, 75 Stat. 527 (Fulbright-Hays Act).
52
The scope of this article is limited to industrial training.
53
71 Fed. Reg. 3913 and 71 Fed. Reg. 3914 (Jan. 24, 2006)
54
General Accounting Office (GAO) report, Inappropriate Uses of Education and Cultural Exchange Visas
(Feb. 5, 1990) ("GAO report"), reported in 67 Interpreter Releases 315 (Mar. 19, 1990). Also see 58 Fed.
Reg. 15180 (Mar. 19, 1993) (supplementary information) and 70 Interpreter Releases 337 (Mar. 22, 1993).
8

9. Immigration Law Foundation (“AILF”) and the Association for International Practical
Training (“AIPT”) are examples of organizations which will serve as a sponsor for any
third party employers and prospective trainees without any need for membership and
irrespective of nationality or industry. The sponsoring entities can be found on the
Department of State website at http://exchanges.state.gov/education/jexchanges/
Specific employers are authorized to sponsor trainees for internal training purposes.
These employers tend to be international companies in manufacturing, service, financial,
educational, research, and other industries.
Advantages in using the J-1 category
The principal advantages of the J-1 over the B-1 for training is that on-the-job
training can be an element of the program 55 , the alien need not be an employee of a
foreign employer, and financial support of the trainee can come from both U.S. or foreign
sources.
Contrasted with the H-3, productive employment can be the principal training
setting for a J-1 and there is no requirement to show that the training is unavailable in
the home country. There is also no need to file and obtain approval of a petition with
USCIS before the alien applies for a visa. The J-1 applies directly for the J-1 visa with
the sponsor-provided certificate of visa eligibility known as the Form DS-2019.
Although a B-1 or H-3 may be required to be taxed as a resident for federal and
state income tax purposes and subject to payment of social security taxes, an exchange
visitor enjoys an initial nonresident tax status, is exempt from FICA contributions, and
may benefit from tax treaty provisions exempting J-1’s from U.S. taxation altogether for
defined periods. The category may help an employer avoid paying into both the U.S. and
foreign social tax systems for a trainee where there is no totalization agreement in place
between the U.S. and the trainee’s home country.
Much of the criticism of the J-1 trainee program has been that it is being used by
employers as an employment visa and to avoid the wage and other requirements under
the H-1B category. For this reason, it is imperative that counsel assures that training
programs meet regulatory requirements. The Department of State’s auditing of training
programs over the last several years has prompted many trainee sponsors to more
carefully review applications for sponsorship, and they are now more likely to refuse
sponsorship if a training program appears incomplete or the training is in an unskilled
occupation.
Another distinction between the J and other trainee categories is J dependents
(both spouse and children), who are granted J-2 visas, may apply for employment
authorization once they have entered the United States in J-2 status. The dependents of
H-3 foreign nationals as well as H-1B dependents in H-4 status do not qualify for work
authorization. The dependents have to qualify independently for a visa which grants
them work authorization.
Requirements for J-1 Training Programs
55
22 CFR § 62.22(b) (April, 11, 2002).
9

10. Department of State (“DOS”) regulations require that a training program be
designed to enhance the exchange visitor's skills in his or her specialty or non-specialty
occupation through participation in structured training and that the program improve the
participant's knowledge of U.S. techniques, methodologies, or expertise within the
trainee's field of endeavor 56 . Such programs are also supposed to incorporate elements
which will convey to the trainee knowledge of U.S. culture and society as well as to
expose U.S. residents to foreign cultures and skills 57 .
On-the-job training is allowed as a component of a bona fide training program
and such is defined as an individual's observation of and participation in given tasks
demonstrated by experienced workers for the purpose of acquiring competency 58 . These
bona fides distinguish a program from one involving unauthorized gainful employment.
The field in which training can be provided must be either a "specialty" or "non-
specialty” occupation as opposed to unskilled work. A "specialty occupation" is defined
as "an occupation that requires theoretical and practical application of a body of highly
specialized knowledge to perform fully in the stated field of endeavor” 59 , not dissimilar
from the USCIS definition of an occupation appropriate for H-1B classification. “Non-
specialty” occupations are generally those which are more than skilled occupations, but
not specialty occupations and generally require at least two years or training or
experience 60 . Specialty programs are allowed in:
• Arts and Culture;
• Information Media and Communications;
• Education, Social Science, Library Science, Counseling and Social Services;
• Management, Business, Commerce and Finance;
• Health-Related Occupations (non-clinical);
• Aviation (other than flight training);
• Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations;
• Construction and Building Trades;
• Agriculture, Forestry and Fishing;
• Public Administration and Law; and other training 61 .
A particular J-1 sponsor may be restricted as to the occupational areas in which it
is authorized by DOS to sponsor participants so it is necessary to assure that the
sponsor’s program designation allows for training in the desired field.
DOS generally relies upon the Department of Labor’s former Schedule B as a
reference point for unskilled occupations 62 .
The length of a J-1 trainee program may range from a minimum of three weeks
to no longer than 18 months in duration. In October, 2003, the DOS notified J-1
sponsors that an alien may be sponsored under the J-1 trainee category only one time,
56
22 CFR § 62.22(d) (April, 11, 2002).
57
22 CFR § 62.22(b) (April, 11, 2002).
58
22 CFR § 62.22 (April, 11, 2002).
59
22 CFR § 62.2 (April, 11, 2002).
60
Id.
61
22 CFR § 62.22(c) (2) (April 11, 002).
62
22 CFR § 62.22(c) (1) and Appendix E to Part 62 (April 11, 2002).
10

11. with few exceptions. Exceptions to this limit must be obtained by contacting the Assistant
General Counsel to the DOS Exchange Visitor Program Designation Branch. The
agency has also said that a departure of 30 days or more serves to terminate a J-1
alien’s program. This would appear to preclude a trainee from engaging in a program
which contemplates return to the home country of a month or more within the authorized
period of stay, even if the purpose is to allow the alien to transfer the skills gained back
to the home country for a short period and then to return to continue the program.
J-1 trainees and any accompanying dependents in J-2 status must be covered by
health insurance which meets DOS regulatory requirements. Willful failure to maintain
such insurance is a ground for termination of the exchange visitor’s program and the
sponsor is required to report such termination to the Department of State.
NOTE: Where the participant is coming to the U.S. to provide as opposed to
receive training, the “specialist” J-1 category may be used for this purpose since it allows
sponsorship of an expert in a field of specialized knowledge or skill to come to the U.S.
for “observing, consulting, or demonstrating special skills” 63 .
Training vs. Employment
Before contacting a prospective training sponsor, counsel needs to evaluate
whether the proposed activities constitute a “bona fide” training program and not simply
gainful employment 64 . It is best to request from the client a training program, broken
down into training segments, which delineates for each segment:
• The period of time required;
• The type of training activity, e.g., classroom training, seminars, rotation through
several departments, on-the-job training, attendance at conferences, and site
visits 65 ;
• The skills to be acquired, e.g., knowledge of company procedures and process,
product marketing, or a manufacturing process;
• Who will provide continuous supervision of and conduct the periodic evaluations
of the trainee 66 .
The training plan must also contemplate evaluations of the trainee’s progress
and the program at least at the mid point and end of the program 67 . There must also be
a determination that the trainee will not assume a position which is filled or would be
filled by regular full-time or part-time employees 68 .
This exercise helps employer construct an organized training experience to
comply with federal regulations and, more importantly, to better assure a successful
training experience for both the trainer and trainee. Most umbrella J-1 sponsors offer
advice and assistance to the client in putting together an appropriate training program
plan. Putting the program sponsor directly in touch with the employer is good practice
63
58 Fed. Reg. 15181 (Mar. 19, 1993) (supplementary information); 22 CFR § 62.4(g) (April 11, 2002).
64
58 Fed. Reg. 15187 (Mar. 19, 1993) (supplementary information); 22 CFR § 62.22(b) (April 11, 2002).
65
22 CFR § 62.22(d) (1) (April 11, 2002).
66
22 CFR § 62.22(g) (April 11, 2002).
67
Id.
68
22 CFR § 62.22(d) (2) (ii) (April 11, 2002).
11

12. instead of trying to be in the middle. If the facts do not show that it is a legitimate training
opportunity, then other visa options should be considered.
It is important to note that the alien need not be an employee of the entity
providing the training. The J-1 program is flexible in terms of the relationship between
the trainee and the entity providing the training. For example, in a situation where a
representative of an overseas customer needs to come to a U.S. company to receive on-
the-job training in a process or product. It is quite difficult, in this situation, to obtain an
employment visa, such as an E, H, L, or TN, if there has not been and/or will not be an
employment relationship between the U.S. company and the representative. The J
program is flexible enough to allow for sponsorship of the representative in such a
circumstance. The financial support for the trainee can also come from any source – the
training entity, a foreign employer or other third party, or the trainee’s personal funds
would all be allowable.
Process of Obtaining J sponsorship
Assuming the employer provided a training schedule and otherwise arranged for
a legitimate training experience and does not have its own program designation from the
DOS, the next step is to contact one of the umbrella J program sponsors. The sponsor
will usually have a web site where program information, documentary requirements, and
applications can be found. It is crucial to review the sponsor’s site and the application
forms carefully for any restrictions specific to that sponsor’s program, which may go
beyond those in the regulations. For example, umbrella sponsors may require that the
prospective trainee have been outside of the United States for 60 to 90 days prior to the
beginning date of the proposed training program. This requirement helps the J programs
avoid applications from employers seeking to use the trainee program as a continuation
of earlier training or employment or to bridge gaps between one status and another such
as a student whose OPT will expire before an H-1B is available.
Counsel should also be sure to check that the J-1 sponsor’s program designation
provides for the particular field of training and, for that field, allows for sponsorship for
the required period of training contemplated. Sponsors do vary on these issues.
Completed applications are submitted to the prospective umbrella sponsor, which
conducts a review and may request additional documentation. The umbrella programs
also offer relatively low cost health insurance to meet the regulatory requirements for
such coverage for the exchange visitor and any dependents. Note that, although many
employer health plans may meet the minimum health insurance requirements, they
usually do not contain provisions to cover the costs of evacuation of the trainee back to
the home country in case of illness or for repatriation of remains. Also, such insurance is
available whether or not the exchange visitor will be an employee of the entity providing
the training, on-the-job training is involved and regardless of the source of funding for the
exchange visitor’s stay. If the employer does not wish to purchase insurance through the
program sponsor, it will be required to demonstrate that other insurance meeting
regulatory requirements will be in place during the program.
Once satisfied that the training program is appropriate for sponsorship, the
program sponsor will issue Form DS-2019 which is generated through the Student and
Exchange Visitor Information System (SEVIS), the government system designed to track
F, M and J status aliens. The form may be provided by the program sponsor’s
12

13. Responsible Officer (RO) or Alternate Responsible Office (ARO) to the attorney, the
company, or be sent to the alien directly in the home country or through a collaborating
organization in the home country. It is important for counsel to review the DS-2019
carefully to assure that the information is accurate. Biographic data (name, date of and
country of birth, country of nationality and country of residence) should be consistent
with that contained in the applicant’s passport. The occupational field in which the
training is being provided, countries of citizenship and of permanent residence, and
sources of funding are important in determining whether the two year foreign residence
requirement of INA Section 212(e) applies. Incorrect information should be brought to
the attention of the RO or ARO to obtain a corrected DS-2019 prior to the visa
application or entry to the U.S. The consular officer will also have made an initial
determination noted on the DS-2019 and on the J-1 visa stamp as to whether the two
year foreign residence requirement applies. However, these determinations are not
always accurate and should be reviewed carefully.
Most J-1 trainee sponsors now offer expedited service which reduces what might
normally be a 2 month process to review the application and issue the DS-2019 to a
matter of a few days. This processing time, as well as that for the J visa application
should be considered in setting the beginning date of the training program so that the
program start and end dates on the DS-2019 are realistic. If the alien arrives late or the
program sponsor is not prepared to commence the training when the alien arrives, it may
prove necessary to seek an extension of the program to which the program sponsor
must consent. The DOS may need to be consulted concerning an extension of stay.
Applying for the J Visa and Entry
Before the alien may apply for the J-1 visa for admission, Form I-907 must be
filed on-line or through the mail along with payment of the $100 SEVIS fee. A J-1 visa
applicant must submit:
• Completed Forms DS-156, DS-157, and DS-158;
• A passport valid for at least six months beyond the end date of the DS-2019;
• Form DS-2019;
• The $100 application fee and, where applicable, reciprocity fee;
• A copy of the receipt for payment of the $100 SEVIS fee;
• A passport type photo;
• Evidence of financial support not designated on Form DS-2019 or in the case
where support is from personal funds; and,
• Documentation/information establishing that the applicant intends to return to an
unabandoned permanent residence in the home country upon completion of the
exchange program.
The applicant should sign and date the DS-2019 as indicated prior to submission
of the form with the application. Because a J-1 visa applicant must satisfy the consul of
the likelihood of return to the home country, applications for J-1 visas are best filed with
the U.S. consul in the applicant’s home country. This is particularly true for applicants
from countries where economic or political conditions are difficult. J-1 visa applicants
from such countries find, at best, mixed results in third countries, such as stateside U.S.
consuls in Canada or Mexico. The refusal rates for J-1 exchange visitor visa applications
have dropped somewhat as a result of a DOS Visa Office cable sent to U.S. consuls last
13

14. year urging them to take into account that student and exchange visitor applicants may
not have the ties to the home country which apply to applicants. 69 This has had a
positive impact on student visa applicants, including those under the F-1 and J-1 student
categories. Trainees, other than perhaps those who are earlier in their careers, may not
benefit from this less restrictive viewpoint. For example, an individual who is making a
career change later in life or who is self-employed or does not have a firm position in the
home country could face a refusal if other factors indicating significant ties to the home
country are not evidenced. In this regard, treatment may be similar to that accorded a B-
1 trainee visa applicant, although consuls treat J-1 visa applicants more favorably as a
general rule. A Canadian citizen would apply directly at a port of entry for admission in J-
1 status since Canadians are visa exempt.
When the J-1 is admitted to the U.S., the period of authorized stay indicated on
Form I-94 is “duration of status” or “D/S”. This is defined as the period from the
beginning to the end of the validity dates of Form DS-2019 plus a 30-day grace period if
the alien completes the exchange program. The alien may apply to change status to
another category within this period unless barred by a failure to maintain status or by the
two-year foreign residence requirement (see below). Note that because the exchange
program is limited to the period on Form DS-2019, any employment which is a part of
the training program must end by the end date stated on the DS-2019 and may not
continue during the grace period.
A change of status to J-1 visa status within the U.S. is possible so long as the
program sponsor does not require the trainee to apply for a visa and/or enter as a J-1.
Counsel needs to caution the training entity that a change is not an application which
can be treated to premium processing by U.S. Citizenship and Immigration Services and
that the variance in processing times can make it difficult to assure that the alien will be
able to begin the training program in a timely manner. If the application to change status
is filed too early such that USCIS adjudicates the case more than 30 days before the
start date on the DS-2019, a Service Center may deny the application 70
Changes of J-1 category from the trainee category to another category within the
J-1 visa, such as the student category, are rarely authorized by the DOS, as there must
be a finding of unusual or exceptional circumstances 71 . It may be possible for a trainee
to depart, obtain a new J-1 visa in a new J-1 category and reenter the U.S. Sponsorship
as a J-1 professor or research scholar is prohibited until the trainee has been out of J-1
status for at least one year.
The J-1 should be provided an initial orientation soon after arrival on the local
community and given information including the address and phone number of the RO,
program rules, and medical insurance.
Any employment which is incidental to the training program is authorized without
69
DOS Cable ____________ AILA InfoNet #
70
The CIS Nebraska Service Center has taken the position on changes of status that if the start date on the
DS-2019 is more than 30 days beyond the date of adjudication and the alien’s status has expired during the
pendency of the application, the application will be denied. The NSC bases this policy on the regulatory
prohibition on entry of an exchange visitor to the U.S. more than 30 days in advance of the start date of the
DS-2019.
71
22 CFR § 62.41 (April 11, 2002).
14

15. the need to apply to USCIS for an employment authorization document. The J-1
program sponsor must verify the trainee’s entry to the U.S. within 30 days of the
program start date or report the failure of the trainee to report to the DOS and the
trainee’s SEVIS record is terminated. The trainee is also required to report any change
of residential address in the U.S. to the program sponsor within 10 days of such a
change. Reporting this change alleviates the need to file Form AR-11 with the
Department of Homeland Security. Termination of program for failure to maintain
required health insurance is also reported to the Department of State. The trainee may
not realize this until she or he travels abroad temporarily and is either refused a new J-1
visa, if such is required to reenter, or may encounter difficulty at a port of entry if the U.S.
Customs and Border Protection port official checks SEVIS and sees that the trainee’s
record has been rendered inactive.
Verification of employment eligibility where on-the-job training is included in the
program may be completed in Section 2 of the I-9 through review of the trainee’s original
valid foreign passport, Form I-94, and DS-2019 which are “column A” documents.
J-2 Dependents
The trainee’s spouse and unmarried children under 21 years of age may apply
concurrently for J-2 visas. The program sponsor provides separate Forms DS-2019 to
each dependent for this purpose.
J-2’s apply for work authorization with the USCIS Regional Service Center with
jurisdiction over the applicant’s place of residence. This authorization may be obtained in
one year increments up to the end date on the J-1’s DS-2019. The J-2 must apply with
Form I-765, filing fee, documentation of valid J-2 entry and status and the J-1’s valid
status, and a statement from the J-2 indicating that the funds which will be earned
through any employment will not go towards the support of the J-1 72 . Since it may take
2-4 months for such authorization to be granted, it may not prove very useful for trainees
who are entering for 6 months or less. If the application remains pending for more than
90 days, the J-2 may apply to the district office for an interim employment authorization
card. Also, trainees who enter for a program of less than a year are generally not
accompanied by dependents.
Seeking J-1 program designation
Those employers who have ongoing training programs and foresee the need to
train many foreign nationals going forward may envision cost savings due to social
security and other tax exemptions for exchange visitor trainees. They also may wish to
avoid trainee sponsorship fees paid to third party umbrella program sponsors. The
convenience of being able to issue its own DS-2019’s to prospective trainees is also
attractive.
The costs of applying for J-1 program designation, compliance with the Student
and Exchange Visitor Information System (SEVIS) requirements, and program
administration are not insignificant so that there needs to be the prospect of
considerable volume to justify the cost and effort in seeking J-1 program designation. At
a minimum, the employer must sponsor five trainees per year to maintain the program
72
8 CFR § 214.2(j) (v).
15

16. designation.
Regulations published in March, 1993 by the former USIA detailed the
requirements for training program sponsors 73 . These delineate both general
requirements applicable to all J-1 program sponsors as well as ones specific to training
sponsors 74 .
The program application is made through the SEVIS system by completing Form
3036 on-line at https://egov.immigration.gov/sevis/ and paying the application fee.
Additional documentation is submitted in support of the application and a site visit is
normally conducted before an approval can be issued by the Department of State.
The prospective program sponsor may apply for designation in any combination
of specialty and/or non-specialty occupations, and may provide training within any
occupation within any of the occupational fields for which a designation is received 75 .
The applicant must also provide evidence of its ability to provide the training. This
includes a certification that:
• There is sufficient space, equipment and trained personnel 76 ;
• The training program is not designed to recruit and train foreign nationals for
employment in the U.S.; and,
• Trainees will not be placed in positions that displace full-time or part-time
employees 77 .
Sample training plans for each field in which training is envisioned as well as for
each expected training plan duration (e.g., 3, 6, 12 and/or 18 month training plans) are
also required 78 . These can be based on either planned training or examples of training
plans already in existence or used, perhaps through umbrella J-1 sponsors.
Documentation to be separately submitted to the DOS includes:
• Verification of the existence of the corporation and its good standing;
• Certification of U.S. citizenship of the company and that the prospective RO and
ARO’s are either U.S. citizens or lawful permanent residents;
• Evidence of the financial ability of the sponsor to run the program; and,
• Evidence of prior experience in administering international exchange programs.
Documenting experience with expatriate or other corporate international program
administration is useful in this regard.
If the application languishes at the DOS Exchange Visitor Designation Branch for
a number of months before it is finally reviewed, updated financial and good standing
documentation will likely be required. A program sponsor is required to provide a
prospective exchange visitor with information about the training program which should
include:
73
58 Fed. Reg. 15186 (Mar. 19, 1993).
74
22 CFR § 62.3, 62.5, 62.9, 62.22(d) (April 11, 2002).
75
22 CFR § 62.22(c) (3) (April 11, 2002).
76
22 CFR § 62.22(d) (1) (April 11, 2002).
77
See note 19, supra.
78
22 CFR § 62.22(f) (April 11, 2002).
16

17. • A written statement concerning any stipend to be paid;
• Costs and fees which the trainee must pay;
• Housing arrangements;
• The insurance requirement;
• The applicability of INA Section 212(e);
• Estimated living expenses for the geographic area where the alien will be
residing in the U.S. during the program; and,
• A summary of the training program 79 .
The RO and ARO(s) are responsible to the DOS for the conduct of the exchange
program. Regulations require them to be thoroughly familiar with the exchange visitor
program rules and the Codebook and Instructions booklet provided by Department of
State 80 . The RO and ARO’s must provide advice and assistance to exchange visitors,
conduct official communications regarding the program, and maintain custody and
control of exchange program documentation and comply with the reporting and other
requirements under the Student and Exchange Visitor Program and SEVIS computer
system.
The software for the SEVIS computer system is provided by the DOS to the
sponsor who installs it and trains its RO and ARO’s in its use. Although DOS has
grudgingly allowed a sponsor’s outside counsel to serve as an ARO, the RO or another
ARO who is an employee of the sponsor and who is familiar with the program must sign
the DS-2019. The RO must submit an annual report regarding program activities to the
DOS.
As can be seen from the above, obtaining a designation and administering an
exchange visitor program for the purpose of sponsoring trainees is likely to prove
undesirable except for those prospective sponsors who have an ongoing need to train
many foreign nationals. The costs can easily exceed the perceived FICA savings which
employers enjoy due to the exemption of J-1’s from U.S. social security. In determining
whether seeking a J-1 designation, consideration should also be given to applying
concurrently for “specialist” designation, which may be advantageous as a way to bring
over individuals to provide training or to demonstrate and convey to U.S. individuals a
sponsored foreign national’s expert skills in a field.
The Two Year Foreign Residence Requirement
The applicability and potential impact of INS Section 212(e) must be considered
in whether to have a trainee sponsored as a J-1. The two-year foreign residence
requirement requires a J-1 visitor to return to his or her home country or country of last
permanent residence for two years before being eligible to change status in the U.S. to
most other nonimmigrant visa categories 81 from J-1 status or to obtain permanent
residence. It also precludes issuance of an H or L visa to a former exchange visitor who
has not fulfilled the requirement. This requirement applies if:
79
22 CFR § 62.22(l) (April 11, 2002).
80
22 CFR § 62.11 (April 11, 2002).
81
INA § 212(e), 8 USC § 1182(e); Also see INA § 248 and 8 CFR 248.2(c) and (d).
17

18. • The exchange visitor's program is wholly or partially financed, directly or
indirectly, by a U.S. government agency or by the government of the country of
his or her nationality or last place of residence;
• The skills to be acquired by the exchange visitor have been designated by the
DOS as required by the exchange visitor's country of nationality or last place of
residence 82 ; or
• The exchange visitor participates in a program of graduate medical education or
training 83 .
Although the consular officer may render an initial determination on the alien's
Form DS-2019 and/or visa whether or not he or she is subject to the requirement, this is
not a final determination and may be incorrect. Counsel needs to determine in advance
whether the requirement will apply. The DOS Waiver Review Branch can render a
determination as to the applicability of the requirement by providing an advisory opinion.
Although industrial trainees are usually not government funded for their programs, the
skills list frequently applies. For example, the government of China has indicated to the
U.S. Department of State that all skill areas on the Exchange Visitors Skills list are in
need in China so that every J-1 who is a citizen or resident of China at the time of
obtaining J-1 status is subject to the requirement.
This requirement would present a significant problem if the employer who
provided the training later decides that it needs to keep the exchange visitor in the U.S.
or bring her or him back to the U.S. to be employed. The alien must reside and
accumulate two years of physical presence in the home country in order to fulfill the
requirement. Except in rare instances, the requirement cannot be fulfilled in a third
country. The DOS recently underlined this policy in recently determining that a citizen of
a member country of the European Union cannot fulfill the requirement through
residence and physical presence in another country in the EU.
The requirement can be waived for industrial trainees in the following
circumstances:
• Where the home country does not object to the alien not fulfilling the
requirement;
• If the alien would be persecuted by the home country government;
• If a U.S. citizen or permanent resident alien spouse or child of the exchange
visitor would suffer an exceptional or unusual hardship if the exchange visitor
were required to fulfill the requirement; or,
• Where an interested U.S. government agency recommends to the DOS that a
waiver be granted 84 .
The J-1 exchange visitor visa can be a very useful training visa; however, the
sponsor and the foreign national must be fully advised of all the advantages and
disadvantages. Counsel must also investigate whether the two-year foreign residency
will apply to any individual case and advise both the sponsor and affected foreign
82
CFR § 62.44 (a) (1) (ii); 9 FAM, note 1.3 22 CFR § 41.62; OI § 214.2(j) (1) and (7). The Exchange
Visitor Skills List appears as an Appendix to OI 212.8(e) and as Exhibit II to 9 FAM, notes 22 CFR
§ 41.62.
83
INA § 212(e), 8 USC § 1182(e).
84
22 CFR § 62.44
18

19. national accordingly.
CONCLUSION
Visa options for foreign nationals entering into the United States either to receive
or provide training in a specialized or non-specialized field can be challenging for the
U.S. company wishing to train or be trained by a foreign national in the United States;
however, the economic engineer of globalization has made these visa options a
necessity for U.S. companies competing or expanding globally. Consequently, counsel
must understand the intricate requirements of each appropriate visa classification, the
nature of the clients training program, and the future goals of its clients. The selection of
the appropriate visa classification for the training depends on the prospective trainee’s or
trainees’ background and the sponsor’s goals. The petition process for a particular visa
classification, such as a H-3 or a J-1 visa, may be time consuming, demand substantial
documentation and subject prospective trainees and U.S. companies to high levels of
scrutiny by USCIS, DOS and CBP. The trainee visa options are not intended to by-bass
restrictions in other temporary employment authorized visa categories and should be
used with this purpose in mind. We hope this article provides practitioners with guidance
regarding the types of visas appropriate for foreign nationals entering the United States
for bona fide training purposes.
19