H-3 visa as alternative to H-1B
I. Definition of Trainee
A trainee under the H-3 visa category is a nonimmigrant who seeks to enter the U.S. based on the invitation of an organization or individual for the purpose of receiving training in any field of endeavor.
Physicians are exempt form this visa category.
II. The petitioner has to demonstrate:
- The proposed training is not available in the alien’s own country
- The beneficiary will not be placed in a position on the normal operation of the business in which citizens and resident workers are regularly employed
- The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training
- The training will benefit the beneficiary in pursuing a career outside of the U.S.
III. The Training Program
Each application must include a supporting letter and supporting documents of the petitioning company or employer, which include the following statements:
- Description and structure of an existing training program, as well as the supervision given. The program must be structured, articulable, and sequential. This means that the program must include an organized curriculum and be supported by formal materials, books, a syllabus, and methods of evaluation of the trainees.
- Statement how much time the trainee will spent on productive work
- Statement how much time the trainee will spent in classroom instruction and on-the-job training
- Description of the career the trainee is hoping to establish with this training
- Statement why the alien cannot be trained in his own country and why it is necessary for the alien to be trained in the U.S. This point is very hard to prove for most western industry countries, as U.S. manager skills alone are not enough. Be careful, the skills learned in the U.S. cannot be so unique that they are not useful in the home country, because this would jeopardize the training purpose.
- Indication of the source of any remuneration received by the trainee and any benefit that will accrue to the petitioner for providing the training.
- The trainee must keep a foreign residence
IV. Restrictions on the Training Program
An H-3 will not be granted if:
- There is no fixed schedule, objectives, or means of evaluation
- The training is incompatible with the nature of the petitioner’s business or enterprise
- The trainee has already substantial experience and possessed already substantial training. The goal should be to learn new skills rather than to apply already established skills, to much knowledge in the filed can cause a denial
- The training will be in a field where it is unlikely that the trainee will be able to use these skills outside of the U.S.
- The training program will be more of an employment situation than necessary for training, in practice any productive employment is considered unacceptable to the DHS. To determinate if productive work will be done, the DHS will evaluate the time that is spent in classroom setting as opposed to the time that is spent in on-the –job training.
- The training is actually designed to recruit and train aliens for the staffing of domestic operations in the U.S., therefore the petition should include a detailed description of overseas position for which the training will prepare the alien.
- It is not established that the petitioner will be able to provide the training
- The H-3 is just used to extend an OPT
- A substantial salary is offered to the trainee
- There will be primary on-the job training
The DHS is really strict about the requirements of the trainee program and denies applications if any of the above mentioned points are given.
V. Terms of Stay, Application Procedure
A change of status to H-3 is possible from F-1 as well as from B-1.
- I-129 has to be filed by employer with BCIS
- Company’s supporting letter, including a detailed description of the training program. Also necessary are supporting documents with a detailed training schedule.
- The employer has to set a time period for the training program, if he stays under 2 years an extension is possible. The maximum stay is 2 years, if less is granted; extension up to these 2 years is possible.
- After a stay of 2 years the trainee cannot change to another H or L status, unless he leaves the U.S. for 6 month, 8 CFR Sec. 214.2 (b) (13) (iv)
- The 2 years trigger the physical presence abroad, so the change of status before the 2 years should be possible.
- Dual intent is not recognized, so a filed LC can be a reason for denying a extension of the H-3.
VI. Dependents
Spouses or children under 21 of an H-3 holder can obtain a H-4. They are not eligible to work.
VII. Conclusion
The H-3 has many detailed restrictions and the DHS is very strict about the requirements of the H-3. The primary training element will hinder a lot of employers, especially in smaller business, to be able to provide the necessary evidence needed to establish a situation for an H-3.
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