Some temporary visas combine work, training
Published 05/23/00 

Most temporary visas allowing work authorization are based upon the premise that the alien employed will be performing a specific, and often highly skilled task, and as a result there tend to be very specific rules regarding who will qualify for such a visa and what sort of education and experience must be possessed by the alien. However, if an employer is willing to combine the work experience with a bona fide training program, there are several types of temporary visas that may be available to a wider range of aliens and employment positions.

One such visa is the J-1, or practical training visa. The J-1 visa is designed to allow alien workers to come to the United States to work for up to 18 months, in order to provide those individuals with exposure to and training in the United States. Although employers can obtain authorization for a J-1 training program directly from the INS, most J-1 visas are obtained through a sponsoring organization which has permission from the INS to administer this program. There are several such organizations in the United States. To apply for a J-1 visa, the employer submits an application to the sponsoring organization explaining the training that the worker will receive and the type of work that the worker will perform. This can be done with or without a specific worker or workers in mind for the job. The fact that this training is a component of this visa does not mean that skilled workers are ineligible for a J-1 visa. The worker performs real work for the employer and is paid by the employer for that work, but there must also be a formal program in place to provide the worker with training and exposure to American culture and the American business environment.

At the conclusion of the 18 month period, certain countries require their citizens who were in the United States on a J-1 visa to return home, such that they can share their newly acquired knowledge of American business practices with other workers in their native country. However, it is also sometimes permissible for the worker to apply for another temporary visa at the conclusion of the 18 month period and stay in the United States.

Another such visa is the Optional Practical Training component of an F-1 student visa. When aliens come to the United States for schooling, they are often permitted to work for an employer in the United States following the completion of their studies for a period of one (1) year. The work must be in the area of their studies, and the purpose behind the practical training must be to continue the alien’s education. However, like with the J-1 practical training visa, the alien can perform productive work for the employer and be paid by the employer for that work.

Employers and employees need to be particularly careful with employment connected with a training visa to assure that the employee is actually receiving training, rather than merely using the training program as a ruse to qualify an alien for work authorization where that alien would not otherwise be able to obtain a work visa. Significant penalties can apply to both the employer and the alien employee if the INS should determine that fraud has taken place. Employers and employees considering embarking on a training visa should consult with an immigration attorney regarding the training program and employment before proceeding.

The attorney who wrote this article is no longer at the law firm of Hamblett & Kerrigan, P.A. in Nashua. Other practitioners at the firm handle work in the same areas of law which he worked in, which included employment law, family law, and general litigation, including property tax abatement and personal injury.You can reach one of those lawyers by calling the law firm (883-5501) or by e-mail at info@nashualaw.com .

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.