Digging Deeper:

The H-3 Trainee Nonimmigrant Visa Program

 

 
An individual is eligible for the B-1 in lieu of H-3 visa if the H-3 requirements are met. H-3 nonimmigrant visas are available for foreign individuals who come temporarily to the United States for professional training.41 There is no limit to the number of H-3 visas that are available annually.  In 2012, 2927 H-3 trainee visas were issued by the U.S. State Department in 2012.42 More than a third of those visas were issued to trainees from India.43 Not much information is published on the nature of the training programs that import H-3 trainees, or whether they work, or where.  The U.S. Department of Homeland Security tracks nonimmigrant admissions and notes that the top states of destination for H-3 visa holders are Texas, New York, California, Illinois and Pennsylvania.44

Source: U.S. State Department, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html(last visited June 2013).

Source: U.S. State Department, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html(last visited June 2013).

H-3 trainees come “at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment.”45 H-3 trainees must have a foreign residence and return there after the training program.46 H-3 trainee visas are valid for the duration of the training program, up to a maximum of two years.47

 
The first step is for the U.S. business or training organization to file a petition for H-3 classification on behalf of the trainee.  The U.S. entity files the Form I-129, Petition for Nonimmigrant Worker with the U.S. Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS).48 Form I-129 must be filed with an explanation of the training program, including:
  • the type of training and supervision to be given, and the structure of the training program;
  • the proportion of time that will be devoted to productive employment;
  • the number of hours that will be spent in both classroom instruction and in on-the-job training;
  • the career abroad for which the training is preparation;
  • the reasons why the training is not available in the trainee’s home country and why it is necessary for this particular trainee to come to the United States; and
  • the source of any trainee compensation, and whether the petitioner will benefit from the training, and how.49
If training will occur in more than one place, the itinerary with the dates and locations must be listed on the petition.50 If the trainee will receive training from more than one entity, each must file a separate petition with USCIS.51 More than one trainee may be included in an H-3 petition if all will receive the same training, for the same period of time, and in the same location.52  However, each trainee must be named individually.53
 
USCIS will not approve H-3 trainee status in certain circumstances.54  For example, if the training program is too general, does not have a fixed schedule or a means of evaluation, or if it is incompatible with the nature of the petitioner's business or enterprise; if the trainee already has expertise in the field; if it is unlikely that the trainee will use the skill outside the U.S.; if the training program is really just productive employment; if the program is designed to recruit and train foreign workers for eventual staffing of U.S. operations; if the trainer does not have the wherewithal to provide the training; or if the training program is intended to get around the maximum allowed under the F-1 student visa program.55
 
After the H-3 status is approved by USCIS, the trainee applies for the visa from the U.S. State Department at a U.S. embassy or consulate in his or her home country. The prospective H-3 trainee must demonstrate that he has nonimmigrant intent and will return home when the job period ends.56 The State Department has the final say about whether to visas and the applications are scrutinized.  In 2012 the adjusted refusal rate for H-3 visas was 12%.57 With the H-3 visa in-hand, the trainee must pass immigration inspection at the border or port of entry.  The visa itself does not guarantee entry to the United States.  The U.S. Department of Homeland Security’s Customs and Border Protection will either permit or deny entry after their own inspection and will determine the permitted time allowed in the U.S., which may be less time than what is listed on the visa itself.58
 
The U.S. Department of Labor has no role in reviewing the petitions or approving whether a U.S. employer may import a worker for the purposes of training and there are no worker protection standards or wage requirements for H-3 trainees.  The reason for this may be because the H-3 visa is not actually designed for workers, even though some productive work incidental to the training is allowed.59 Nevertheless, the visa should not be used for training programs “primarily designed to provide productive employment.”60  Indeed, USCIS should not grant petitions for H-3 trainees if they will be placed in a position normally filled by U.S. workers.61 However, there is no labor market test and no government oversight of the actual training programs once the visa is issued and the trainee is admitted to the United States.
  • 41. 8 C.F.R. § 214.2(h)(1)(ii)(E)(1) (the H-3 visa is not for graduate medical training or training provided at or by an academic or vocational institution). H-3 visas are also available for participants in a special education exchange visitor program. 8 CFR § 214.2(h)(1)(ii)(E)(2).
  • 42. U.S. State Department, FY 1997-2012 NIV Detail Table, available at http://travel.state.gov/visa/statistics/nivstats/nivstats_4582.html (last visited June 2013).
  • 43. Id.
  • 44. U.S. Department of Homeland Security, Nonimmigrant Admissions (I-94 Only) by Class of Admission and State or Territory of Destination: Fiscal Year 2012, available at http://www.dhs.gov/yearbook-immigration-statistics-2012-nonimmigrant-adm... (last visited October 2013).
  • 45. 8 C.F.R. § 214.2(h)(7)(i). This category shall not apply to physicians, who are statutorily ineligible to use H-3 classification in order to receive any type of graduate medical education or training.
  • 46. 8 C.F.R. § 214.2(h)(7)(i); 9 FAM 41.53 N4.5.
  • 47. 8 C.F.R. § 214.2(h)(9)(iii)(C)(1). Petitions on behalf of special education trainees are valid up to 18 months. See (9)(iii)(C)(2). If the program’s initial duration is less than two years, an extension is available, but only up to a two-year maximum total period of stay. See 8 C.F.R. § 214.2(h)(15)(ii)(D); 9 FAM 41.53 N12.3. The total period of stay as a participant in a special education training program not to exceed 18 months. An H-3 alien trainee who has spent 24 months in the United States with any type of H visa or a previous L visa may not seek an extension or a change of status, or be readmitted to the United States with another type of H or L visa unless he or she “has resided and been physically present outside the United States for the immediate prior 6 months.” 8 C.F.R. § 214.2(h)(13) (iv). There is an exception for H-3 trainees who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of 6 months or less per year. See 8 C.F.R. 214.2(h)(13)(v).
  • 48. 8 C.F.R. § 214.2(h)(2)(i)(A); U.S. Department of Homeland Security, USCIS, H-3 Nonimmigrant Trainee or Special Education Exchange Visitor, available at http://www.uscis.gov/working-united-states/temporary-workers/h-3-nonimmi... (last visited November 2013).
  • 49. 8 C.F.R. § 214.2(h)(7)(ii)(B)(1)-(6); see also See Form I-129 Instructions, p. 10, available at http://www.uscis.gov/sites/default/files/files/form/i-129instr.pdf.
  • 50. 8 C.F.R. § 214.2(h)(2)(i)(B).
  • 51. 8 C.F.R. § 214.2(h)(2)(i)(C).
  • 52. 8 C.F.R. § 214.2(h)(2)(ii).
  • 53. 8 C.F.R. § 214.2(h)(2)(iii).
  • 54. 8 C.F.R. § 214.2(h)(7)(iii)(A)-(H).
  • 55. Id.
  • 56. Non-immigrant intent is required for individuals applying for H-3 visas. See 8 U.S.C. § 1101(a)(15)(H).
  • 57. U.S. State Department, NIV Workload by Category 2012, available at http://www.travel.state.gov/pdf/FY2012NIVWorkloadbyVisaCategory.pdf (last visited November 2013); Adjusted Visa Refusal Rate = (Refusal – Overcome)/ ((Refusal-Overcome) + Issuances). See U.S. Department of State, Guidelines of the Visa Waiver Program, available at http://www.travel.state.gov/pdf/refusalratelanguage.pdf (last visited June 2013)
  • 58. 8 U.S.C. §1225; 8 C.F.R. Part 235, Inspection of Persons Applying for Admission; see also Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., and Sam Bernsen, Immigration Law and Business § 2:11 (2010) (“The issuance of a nonimmigrant visa gives the alien permission to apply for admission to the United States at a port of entry…The visa does not assure an alien that he or she will be admitted to the United States, however; it merely indicates that a consular officer has found the alien eligible for temporary admission to the United States and not inadmissible under § 212(a) of the INA, 8 U.S.C.A. § 1182(a).”).
  • 59. 8 C.F.R. § 214.2(h)(7)(ii)(A)(1)-(4); 9 FAM 41.53 N4.5-1. There are different requirements for trainees in a special exchange visitor program. 8 C.F.R. § 214.2(h)(7)(iv); 9 FAM 41.53 N4.5-2.
  • 60. Id.; 9 FAM 41.53 N5.3. There is an exception for participants in a special education exchange program. See 9 FAM 41.53 N4.5-1 and 5-2.
  • 61. Id.