B1 to H3 visa?

[Bparks777]

Greetings everyone! Long time no see!

 

This is slightly off topic from the usual immigration questions for loved ones. I ask because I have found this forum to be incredibly knowledgable. I spent quite a bit of time on here previously for a loved one. I come back to you with some questions, for a friend that approached me because they knew I was somewhat familiar in dealing with USCIS.

 

Issue Begins:

 

My friend lives in Chongqing China, they are a kindergarten teacher. They were recently granted a 10 year multiple entry B1 visa to attend a couple meetings / conferences conducted by a charter school in NJ. These meetings are specifically geared towards early childhood language education.

 

Their english is very good, and because so they were approached by the school asking if they would would like to work in a training / assistant position teaching Chinese to the kindergarten class in the school. The program would last 21 months, and they would compensate with some money/housing, the charter school will petition for a h3 visa, and the program would start shortly after the meetings (beginning this school year).

 

So for the problem of time, they would enter under a B1 visa, and within 3/4 months change to a H3visa.

 

It seems pretty straightforward but I wanted to ask a couple clarifying questions.

 

Questions

1. I read that current wait times for H3 is up to 3 months. So if I'm correct the duration of stay under B1 is determined at point of entry for maximum 6 months or less. So if the agent grants 30 days, can they stay after the original 30 days while waiting for the H3 petition in USCIS's channels?

 

2. Is this difficult?

 

3. Could it ultimately harm the B1 visa?

 

I apologize for various grammatical errors. I am trying to jot this in between doing some work haha.

 

Any advice/suggestions welcomed.

Edited August 14, 2015 by Bparks777 (see edit history)

[Randy W]

You need to talk to a lawyer who can determine the specifics of this program. "Teaching Chinese to the kindergarten class in the school" is NOT training which is not available in the trainee's (your friend's) home country.

 

In addition, (from http://faq.visapro.com/h3-visa-faq2.asp

 

You must prove that:

• You are not receiving graduate medical education or training in the U.S.
• You do not have the opportunity to receive similar training in your home country
• You need this training to advance your career outside the U.S.
• You will not be productively employed unless it is necessary to the training

 

As far as waiting for the H3 processing, I worked for a company which sent a new hire to sit in a hotel room in Beijing with a laptop and an Internet connection under similar circumstances.

 

Without some outside legal advice, your friend is at the mercy of the charter school's lawyers as to whether this arrangement is legal.

 

There IS this note, but, again, you need legal advice as to whether this program qualifies

 

Note: Special Exchange Visitors may also apply for nonimmigrant visas under the
H-3 category. A Special Exchange Visitor is one who seeks to enter the U.S. to gain practical training in educating children with physical, mental, or emotional disabilities. The foreign national must have a foreign residence that he/she has no intention of abandoning, and may stay in the U.S. for up to 18 months. Only 50 foreign nationals per year may enter into the U.S. in the Special Exchange Visitor category.

 

If they're on the up-and-up, then the school's legal department should be your best source of information.

Edited August 14, 2015 by Randy W (see edit history)

[Greg.D.]

.....

 

Any advice/suggestions welcomed.

Not an immigration lawyer ...

 

I don't think he/she can work on the B1 for a salary paid by a USA employer (while waiting for the H3 - could lose the B1 and right to enter again).

 

But the H3 sounds like it was meant for this situation.

 

Honestly, I did not know anything about the H3, it is distinct from the student visa for sure. So, it could be he/she qualifies - but, the working (for salary temporarily on the B1) could be dangerous.

[Bparks777]

I should actually specify this is a Chinese company. They run these schools all over the place teaching all sorts of languages k-6 it's a pretty impressive operation. So the compensation wouldn't technically be from a U.S. entity. They supposedly use the H3 visa on a regular basis, but this was a unique situation simply because of time. Being that they wouldn't have time to get the H3 through USCIS in time for the program to start.

 

I'm correct in my presumption that the duration of stay is detirmined at POE? So could they stay during the time the request for status change is with USCIS, even if initial duration expired? How does the POE agent decide the duration is it always 6 months? Is it based on return ticket? Agents discretion?

 

The biggest worry is the event of possible overlap from duration expiring, and waiting for USCIS.

 

Thanks for all the help.

Edited August 14, 2015 by Bparks777 (see edit history)

[Randy W]

I should actually specify this is a Chinese company. They run these schools all over the place teaching all sorts of languages k-6 it's a pretty impressive operation. So the compensation wouldn't technically be from a U.S. entity. They supposedly use the H3 visa on a regular basis, but this was a unique situation simply because of time. Being that they wouldn't have time to get the H3 through USCIS in time for the program to start.

 

I'm correct in my presumption that the duration of stay is detirmined at POE? So could they stay during the time the request for status change is with USCIS, even if initial duration expired? How does the POE agent decide the duration is it always 6 months? Is it based on return ticket? Agents discretion?

 

The biggest worry is the event of possible overlap from duration expiring, and waiting for USCIS.

 

Thanks for all the help.

 

 

Again, we cannot advise on the particulars of your situation. Your best source of information is the legal department for the school.

 

No one here will advise her to overstay a B-1.

[Bparks777]

Understood I'll relay the info.

 

But one question I still have. Is the duration of stay totally ambiguous? Or is it something solid? I know b1 has a maximum of 6 months. Is it always 6 months or is it up to the POE agents discretion? Or is the duration stated when they get their passport back from the embassy?

Edited August 14, 2015 by Bparks777 (see edit history)

[Randy W]

This may very well be a legitimate operation. If so, they should be able to help with any visa issues. YOU will need to be the judge there.

 

Yes, it is discretionary at the POE as to the length of stay.

[Bparks777]

Thanks for all the help Randy!

[newacct]

I should actually specify this is a Chinese company. They run these schools all over the place teaching all sorts of languages k-6 it's a pretty impressive operation. So the compensation wouldn't technically be from a U.S. entity. They supposedly use the H3 visa on a regular basis, but this was a unique situation simply because of time. Being that they wouldn't have time to get the H3 through USCIS in time for the program to start.

 

I'm correct in my presumption that the duration of stay is detirmined at POE? So could they stay during the time the request for status change is with USCIS, even if initial duration expired? How does the POE agent decide the duration is it always 6 months? Is it based on return ticket? Agents discretion?

 

The biggest worry is the event of possible overlap from duration expiring, and waiting for USCIS.

 

Thanks for all the help.

 

Duration of stay is completely up to the immigration officer at entry.

 

Yes, they can stay while the Change of Status application is pending, if it is filed while the person is still in status.

[Randy W]

 

I should actually specify this is a Chinese company. They run these schools all over the place teaching all sorts of languages k-6 it's a pretty impressive operation. So the compensation wouldn't technically be from a U.S. entity. They supposedly use the H3 visa on a regular basis, but this was a unique situation simply because of time. Being that they wouldn't have time to get the H3 through USCIS in time for the program to start.

 

I'm correct in my presumption that the duration of stay is detirmined at POE? So could they stay during the time the request for status change is with USCIS, even if initial duration expired? How does the POE agent decide the duration is it always 6 months? Is it based on return ticket? Agents discretion?

 

The biggest worry is the event of possible overlap from duration expiring, and waiting for USCIS.

 

Thanks for all the help.

 

Duration of stay is completely up to the immigration officer at entry.

 

Yes, they can stay while the Change of Status application is pending, if it is filed while the person is still in status.

 

 

 

I hate to repeat myself, but the company I used to work for said that this was NOT the case. They actually sent a new hire back to China - to work out of a hotel in Beijing over a Internet connection - while his visa was being processed after his existing visa expired.

 

Work with the legal department at the school where she will work as to what is necessary for her stay and the particular circumstances. They can most likely provide documentation to ensure that the B-1 duration will be sufficient.