Overview of H3 Visas for Trainees

 

Introduction: H3 Visas for Trainees

h3 visas for traineesThe H3 nonimmigrant visa category is for aliens who are coming to the United States to participate in a training program. The H3 visa is not available for any program that is designed primarily to provide productive employment. The H3 visa is not available for graduate medical training. In this article, we will look at the eligibility requirements for H3 trainee status, the application process, and the rules while on H3 trainee status. To learn about the H3 Special Education Exchange Visitor Program, please follow this link.

H3 Status Defined: the Statute

The law authorizing H3 status is found in section 101(a)(15)(H)(iii) of the Immigration and Nationality Act (INA). From the statute, we find the following requirements for H3 status.

  • The applicant must have a residence in a foreign country which he or she has no intention of abandoning;
  • Must be coming to the United States temporarily as a trainee (other than to receive graduate medical education or training); and
  • Must be coming to participate in a training program that is not designed primarily to provide productive employment.

Furthermore, the statute adds that the spouse and minor child(ren) of an alien who obtains an H3 visa may accompany or follow to join (this would be with an H4 visa).

Eligibility Requirements for H3 Status

First, recalling from the statute, an alien seeking an H3 visa must have a foreign residence which he or she has no intention of abandoning. Dual intent is not permitted for H3s.1

Regulations found in 8 C.F.R. 214.2(h)(7) provide additional rules for the H3 category. The regulations state that an applicant for an H3 visa is seeking to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor (graduate medical training exempted). The statute provides a non-exhaustive list of fields in which H3 trainees may receive training:

  • Agriculture;
  • Commerce;
  • Communications;
  • Finance;
  • Government;
  • Transportation; or
  • Other Professions.

Furthermore, training in a “purely industrial establishment” also qualifies for H3 purposes.

The regulations require that the H3 petitioner demonstrate the following with regard to the trainee:

  1. The proposed training is not available in the alien's own country;
  2. The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed;
  3. The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and
  4. The training will benefit the beneficiary in pursuing a career outside of the United States.2

H3 visa is only available for an alien trainee to engage in training that would be unavailable in his or her home country, and the training must benefit his or her pursuance of employment abroad. The H3 visa is in no way designed to foster employment in the United States. Sub-clauses 2 and 3 exist to prevent trainees from filling roles that would be normally filled by U.S. citizen workers or residents.

The regulations require that an H3 petitioner must include a statement which:

  1. Describes the type of training and supervision to be given, and the structure of the training program;
  2. Sets forth the proportion of time that will be devoted to productive employment;
  3. Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;
  4. Describes the career abroad for which the training will prepare the alien;
  5. Indicates the reasons why such training cannot be obtained in the alien's country and why it is necessarily for the alien to be trained in the United States; and
  6. Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training.3

To learn more about how the United States Citizenship and Immigration Services assesses these pieces of evidence, please go to this section.

The regulations state that a training program may not be approved which:

  • A. Deals in generalities with no fixed schedule, objectives, or means of evaluation;
  • B. Is incompatible with the nature of the petitioner's business or enterprise;
  • C. Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training;
  • D. Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
  • E. Will result in productive employment beyond that which is incidental and necessary to the training;
  • F. Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States;
  • G. Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or
  • H. Is designed to extend the total allowable period of practical training previously authorized to a nonimmigrant student.4

If the proposed training appears to be an end-around to gainfully employ the beneficiary, the petition will be rejected. Rather, petitioners must provide a detailed description of the proposed training to demonstrate that the petition is for an actual training program. Furthermore, the petitioner must submit evidence demonstrating that the alien trainee actually needs the training and that the training will ultimately be useful for pursuing employment abroad.

The United States Citizenship and Immigration Services (USCIS) Policy Manual explains that petitioner may demonstrate that H3 trainee status is appropriate for an individual who is already a professional in the field if the training is at a company-specific program and that the training cannot be found in the beneficiary's home country.5

H3 Eligibility for Externs and Nurses

Under certain circumstances, the H3 visa is available to externs and nurses. However, the regulations place additional requirements on H3 petitions for externs and nurses.

Externs

Although graduate medical training is prohibited by statute for H3 status, there is a limited circumstance in which medical students are eligible for H3 visas. A hospital approved by either the American Medical Association or the American Osteopathic Organization for either an internship or residency program may petition to classify an alien attending medical school abroad as an H3 trainee if the alien will engage as employment as an extern during his or her medical school vacation.6

Nurses

The H1C visa category is explicitly for nurses coming to work temporarily in the United States. However, under limited circumstances, H3 trainee classification may be appropriate for a foreign nurse.

A petitioner may seek H3 classification for a nurse who is not H1 (either H1B or H1C) if it can establish that there is a genuine need for the nurse to receive a brief period of training in the United States. As is the case with H3 eligibility in general, the training must be unavailable in the nurse's native country and must be to benefit the nurse and his or her overseas employer upon the nurse's return abroad. There are two additional regulatory requirements for petitioning for nurses for H3 status:

  1. The beneficiary has obtained a full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a nursing education, or such education was obtained in the United States or Canada; and
  2. The petitioner provides a statement certifying that the beneficiary is fully qualified under the laws governing the place where the training will be received to engage in such training, and that under those laws the petitioner is authorized to give the beneficiary the desired training.7

The regulations only allow for nurses to obtain H3 status for training to benefit their employment abroad. If a medical provider is seeking a foreign nurse to fill an employment vacancy, it should instead assess whether H1B or H1C status would be appropriate.

Filing for H3 Status

The H3 petition is filed on the Form I-129, Petition for Nonimmigrant Worker, with an H supplement form. One petition may include multiple trainees if the trainees will be receiving the same training at the same place for the same period of time.8 The spouse and unmarried child(ren) of an H3 trainee are entitled to H4 status (if admissible) to accompany or follow to join the H3 trainee for the same duration of status.

The denial of an H3 petition may be appealed to the Administrative Appeals Office (AAO).

Certain persons lawfully admitted to the United States as nonimmigrants are eligible to change to H3 status provided that they have an unexpired Form I-94.9 Whether this will be possible depends on the status the nonimmigrant is lawfully maintaining.

H3 Adjudications

The USCIS Policy Manual provides details on how USCIS officers will adjudicate H3 trainee petitions.10

Career Abroad: USCIS officers will assess the trainee's career abroad and whether the proposed training will prepare the trainee for “something that is new and unavailable in the trainee's home country.”

Classroom-Based and Online Instruction: USCIS officers will look at the evidence to ensure that the petitioner establishes that the training cannot be made available in the beneficiary's home country. This will be more difficult to demonstrate when most or all of the training will take place online.

Description of the Training Program: USCIS officers will determine whether the petitioner submitted detailed evidence as to the structure of the program, what the beneficiary would actually be doing, and whether the proposed activities will help the beneficiary obtain specific skills to further his or her work abroad.11 The petitioner must specify the beneficiary's proposed hours both supervised and unsupervised.12 A proposal that consists largely or entirely of shadowing may be approved, but it will be subjected to higher levels of scrutiny.

Remuneration: The petitioner must indicate the source of remuneration for the trainee. While remuneration can come from any source (domestic or international), USCIS officers will determine whether the proposed remuneration is in proportion to the training position.13 Furthermore, the petitioner must specify the benefits that it will accrue if the petition is approved.

Placement into the Normal Operation of Business: USCIS officers will assess whether the petition indicates that the trainee will be placed in positions in the “normal operations of the business.” Indications that the beneficiary will remain in the United States to work for the petitioner will be fatal to the overall petition.

Practical Training: If the beneficiary will engage in practical training, the petitioner must detail the level of supervision that the beneficiary would receive, and that any “productive employment” is both incidental to and necessary for the training.

Productive Employment: A training program that devotes a significant percentage of time to productive employment will be subject to high scrutiny.14

Substantial Training and Expertise in the Field of Training: Petitioners should submit as much evidence as possible regarding the beneficiaries credentials (educationally and professionally), including any immigration forms relating to education or training in the United States.

Sufficiently Trained Staff: USCIS officers will assess whether the petition indicates that the staff members who will be training the beneficiary are qualified to do so. Furthermore, they will assess whether the proposal is realistic based upon the regular duties of the staff members.

Unavailability of the Training in Beneficiary's Country​: USCIS officers will assess the petition to determine whether the petitioner demonstrated the necessity of training in the United States.15

Admission as an H3 Trainee

H3 trainees are admitted for the length of the training program, but not in excess of 2 years.16 The petitioner may file for an extension of stay if the initial period of admission was for less than 2 years, but the total admission for the trainee may not exceed 2 years. A request for an extension of stay will be denied of the trainee has an approved labor certification from the petitioner or if the petitioner has filed a preference petition for the trainee.17

After 2 years on H3 status, a trainee may not apply for change to or readmission in H or L status until he or she has spent the immediate 6 months outside of the United States.18 However, if the training was seasonal or lasted for an aggregate of less than 6 months per year, the 6 month physical presence abroad requirement does not apply.19

H4 dependents are free to change to a different H-visa status because admission as an H4 does not count against the maximum allowable period of admission for H status.20 However, H4 status does not authorize employment.

Conclusion: H3 Visas for Trainees

The H3 visa category is limited to allowing visa-holders to obtain temporary training in the United States to gain skills to use abroad. It is important to remember that the H3 category is not designed to facilitate U.S. employment. Employers that are looking to fill vacancies or foreigners who are looking to actually work in the United States should look at nonimmigrant and immigrant work visa categories that are designed for that purpose. An experienced immigration attorney will be able to assess the goals of the petitioner and the beneficiary and either assist in the H3 petitioning process, or determine a more appropriate visa to apply for.

One interesting note is that some trainees who are eligible for H3 status may also be eligible for B1 business visitor or J1 exchange visitor status. Petitioners and foreign workers in these cases should consult with an experienced immigration attorney to determine which category is most appropriate given the conditions of the proposed arrangement.

_____________________

  1. 8 C.F.R. § 214.2(h)(16)(ii)
  2. 8 C.F.R. § 214.2(h)(7)(ii)(A)(1)-(4)
  3. 8 C.F.R. § 214.2(h)(7)(ii)(B)(1)-(6)
  4. 8 C.F.R. § 214.2(h)(7)(iii)(A)-(H)
  5. USCIS PM — Vol. 2 — Part J — Ch. 3 [see footnote 6 in the section]
  6. 8 C.F.R. § 214.2(h)(7)(i)(A)
  7. 8 C.F.R. § 214.2(h)(7)(i)(B)(1)-(2)
  8. 8 C.F.R. § 214.2(h)(2)(ii)
  9. USCIS PM — Vol. 2 — Part J — Ch. 7
  10. See USCIS PM — Vol. 2 — Part J — Ch. 6 [for the section]
  11. The PM cites: Matter of Miyazaki Travel Agency, Inc., 10 I&N Dec. 644 (Reg. Comm. 1964) [rejected petition on account of the training program being “unrealistic”]; Matter of Masauyama, 11 I&N Dec. 157 (Reg. Comm. 1965) [statute requires training, not just work experience]
  12. The PM cites: Matter of Frigon, 18 I&N Dec. 164, 166 (Comm. 1981) [noting that number of hours of unsupervised training must be considered]
  13. The PM cites: Matter of Kraus Periodicals, Inc., 11 I&N Dec. 63 (Reg. Comm. 1964) [petition denied because the petitioner's training program was vague and because the substantial salary suggested that the training program was productive employment which may displace a U.S. citizen worker)
  14. The PM Cites: Matter of Miyazaki Travel Agency, Inc., 10 I&N Dec. 644 (Reg. Comm. 1964); Matter of Sasano, 11 I&N Dec. 363, 364 (Reg. Comm. 1965); Matter of St. Pierre, 18 I&N Dec. 308, 310 (Reg Comm. 1982)
  15. The PM Cities: Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972) [petitioner's statement to this effect without accompanying evidence is insufficient]
  16. 8 C.F.R. § 214.2(h)(9)(iii)(C)(1)
  17. 8 C.F.R. § 214.2(h)(16)(ii)
  18. 8 C.F.R. § 214.2(h)(13)(iv)
  19. 8 C.F.R. § 213.2(h)(13)(v)
  20. Policy Memo, USCIS, Additional Guidance on Determining Periods of Admission for [H-4], PM-602-0092 (Nov. 11, 2013)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 907-909, Print. Treatises & Primers.