H3 Visa: Special Education Exchange Visitor Program

h3 visa

 

Introduction: Special Education Exchange Visitor Program

Section 223 of the Immigration Act of 1990 (IMMACT90) created a special education exchange visitor program that allows for up to 50 special education teachers to be granted H3 visas to receive special training and experience in the United States each year. Although this program is processed under the H3 category, the rules and regulations regarding the program are generally distinct from the rest of the H3 category. In this article, we will look at the rules and regulations regarding the H3 special education exchange visitor program. To learn about the broader H3 nonimmigrant visa category, please follow this link.

Statutory Background: Special Education Exchange Visitor Program

Section 223 of IMMACT90 [PDF version] created the special education exchange visitor program.

The law requires that in order to be eligible for classification under the program, an alien must have a residence abroad which he or she has no intention of abandoning. The statute limits the maximum duration of stay under the program to 18 months. It states that an alien seeking to come to the United States under this provision must be coming to participate in a special education program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. Finally, the law limits the number of special education exchange visitors under the program to 50 each fiscal year.

Processing Under the H3 Category

The special education exchange visitor program is processed under the H3 visa category. It is important to note that the special education visitor program is in many ways distinct from the rest of the H3 category. The regulations state that “the requirements in [the section for H3 visas] shall not apply to petitions for participants in a special education exchange visitor program.”1 For example, in a 1999 Administrative Appeals Office (AAO) non-precedent decision [PDF version], the AAO noted that adjudicators had made a mistake in one case by applying the general H3 requirement that the proposed training not be available in the petition beneficiary's home country to a petition for status under the special education exchange visitor program.2

Regulatory and Procedural Background: Rules for the Special Education Exchange Visitor Program

By statute, the special education exchange visitor program does not allow for programs that primarily provided productive employment.3

The regulations found in 8 C.F.R. 214.2(h)(7)(iv) [PDF version] set forth additional rules for applying for H3 status under the program. A petition for a special education exchange visitor must be filed by a facility which has professionally trained staff and a structured program for providing education to children with disabilities, and for providing training and hands-on experience to participants in the exchange visitor program.4 The petition is filed on the Form I-129, Petition for a Nonimmigrant Worker.

Evidentiary Requirements

With regard to the program itself, the petitioner must submit a description of:

The training program;
The facility's professional staff; and
Details of the alien's participation in the training program (any custodial care of children by the special education exchange visitor must be incidental to training).5

The petitioner must show that the special education exchange visitor:

Is nearing competition of a baccalaureate or higher education degree in special education; or
Has such a degree in special education; or
Has extensive prior training and experience in teach children with physical, mental, or emotional disabilities.

The USCIS Policy Manual [PDF version] 6 explains that USCIS officers will review a petition to determine whether there is sufficient evidence for establishing whether the petition is approvable.

The spouse and unmarried child(ren) of an special education exchange visitor will be eligible for an H4 visa for the same duration as the principal's stay on H3 status.

Being on H3 Status as a Special Education Exchange Visitor

An H3 visa for a special education exchange visitor may be approved for a period of up to 18 months.7 If the petition was initially approved for less than 18 months, a new Form I-129 may be filed to request an extension of stay so long as the total period of stay for the special education exchange visitor is less than 18 months.

An H3 special education exchange visitor who has spent 18 months in the United States in either H or L classifications may not seek a change of status to or be readmitted in either H or L status [see article] unless he or she has spent the immediate six months outside of the United States.8

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.9 However, H4 status does not authorize employment.

Conclusion: Special Education Exchange Visitor Program

The special education exchange visitor program is a small but useful program for well-credentialed special education instructors to gain valuable experience in the United States. It is important to remember that this program does not exist to train foreign educators to work in the United States. If an educational facility and foreign educator are seeking a long-term employment relationship, the H3 special education exchange visitor program is not appropriate.

Due to the limited H3 visas available for the program and the significant evidentiary requirements for filing an approvable Form I-129, a petitioner that is seeking to bring a special education exchange visitor to the United States should consult with an experienced immigration attorney for assistance in filing the Form I-129 completely and as expeditiously as possible.

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  1. 8 C.F.R. § 214.2(h)(7)(iv)(A)(3)
  2. AAU EAC 97 104 51388 (INS), 1999 WL 33636423 [despite the error in adjudicating the petition under the wrong set of H3 regulations, the petition was nevertheless denied on its own merits]
  3. INA § 101(a)(15)(H)(iii) [the statute authorizing H3 status]
  4. 8 C.F.R. § 214.2(h)(7)(iv)(A)(1)
  5. 8 C.F.R. § 214.2(h)(7)(iv)(B)(1)
  6. USCIS PM - Vol. 2 - Part J - Ch. 4 (Nov. 10, 2015)
  7. 8 C.F.R. § 214.2(h)(13)(iv)
  8. Id.
  9. 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. 909, Print. Treatises & Primers.

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H3 Visa