H-3 TEMPORARY TRAINEES
Section 8 CFR § 214.2(h)(7)(iv) defines an H-3 trainee as a nonimmigrant who seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in areas such as, but not limited to, agriculture, commerce, communications, finance, government or transportation. Please note that physicians do not fall in the H-3 category in accordance with 8 CFR § 214.2(h)(7)(i). Pursuant to INA § 101(a) (15) (H) (iii), an H-3 program is not “designed primarily to provide productive employment,” but it permits some productive employment if it is incidental but necessary to the training.
Evidentiary Requirements To obtain an H-3 status, the trainee must demonstrate to USCIS the following:
- The proposed training is not available in the beneficiary’s own country;
- As a trainee, the beneficiary will not be placed within the normal operations of the business in which Americans and permanent-resident workers are regularly employed;
- The beneficiary will not engage in productive employment unless it is incidental but necessary to the training; and
- The training will benefit the trainee in pursuing a career outside the United States.
Nature of the Training Program The petition for a trainee must describe in detail the type of training and supervision the trainee will receive, as well as set forth the structure of the training program. The petition must discuss the amount of time the beneficiary will spend in productive employment and provide the number of hours of classroom instruction and on-the-job training. The petitioner should describe the trainee’s career abroad and why he cannot receive such training in his home country. Finally, the trainee shall explain the source of any remuneration he will receive and the trainer’s benefits for providing the training.
USCIS will not approve a training program if it has no fixed schedule, objectives or means of evaluation, or is incompatible with the nature of the petitioner’s business. Furthermore, USCIS will not approve a training program if the beneficiary already had substantial training and expertise in the proposed field of training. Likewise, it will deny the petition if the program is in the field in which it is unlikely that the knowledge or skill will be used outside the United States or results in productive employment beyond that which is incidental but necessary to the training. Similarly, programs designed to recruit and train beneficiaries ultimately for operations in the United States are not acceptable. In the past, USCIS denied applications in which the petitioner had no facilities and staff to provide specified training, or when the program was designed to extend period of practical training for a student who already had similar training.
Productive Employment If employer offers trainee a substantial salary and a long on-the-job training program, USCIS will determine that the petitioner and trainee do not meet the requirements for an H-3 trainee.
Filing, Period of Admission and Extensions An American employer seeking H-3 classification for a prospective trainee must file Form I-129 and supporting documentation with the appropriate USCIS service center. USCIS may approve the petition for a validity period of a maximum of two years. An H-3 trainee who has spent two years in the United States as an H nonimmigrant may not seek extension, change status or readmission to the United States in this status unless he has been present outside the United States for the immediately prior six months.
The doctrine of dual intent does not apply to H-3 beneficiaries. Thus, the approval of an LCA for, and the filing of an immigrant petition by, the same employer training the trainee shall be a reason, in and of itself, to deny a trainee’s application for extension of stay.