Basic Overview
The H-3 visa category is used by U.S. companies to bring
foreign employees to the United States for a temporary
training period in order to participate in a established
training program. The training program may provide
classroom training, or a combination of classroom and
on-the-job training, which is unavailable in the alien's
home country. The H-3 visa category is therefore used as
a means of increasing the foreign employee's knowledge
and skills, thereby enhancing his/her worth to a
company's foreign operations or other appropriate
foreign operations. The purpose of the program MUST be
to train the alien, NOT to improve or enhance the
employer's production or employment situation.
The
H-3 visa category has special restrictions that apply to
the temporary training of a foreign worker. The
Immigration and Naturalization Service (INS) applies
these special restrictions in a particularly stringent
manner, denying many petitions for training in any of a
number of bases:
Nonexistence of a structured, articulable, and
sequential program;
Too
much on-the-job training;
Engagement in productive employment by the trainee;
Potential displacement of a U.S. worker through the
actual period of training or subsequent placement of the
trainee with a U.S. office;
Availability of the training in the alien's home
country;
Lack
of usefulness of the training in the alien's home
country;
Mere
enhancement of previously acquired skills as opposed to
new training.
When
deciding petitions for H-3 Trainees, the INS considers a
number of factors concerning the existence of an actual
training program. These include: a description of the
training program (must include an organized curriculum
and be supported by formal materials, books, a syllabus,
and a method of evaluation of the trainees), portion of
the training time that will be devoted to productive
employment; the number of hours devoted to classroom
instruction; the number of hours devoted to on-the-job
training without supervision; and identification of the
position which the alien will fill when he/she returns
abroad.
Repetition, review and practical application of skills -
without some new instruction - will NOT constitute a
training program for purposes of training under the H-3
visa. In other words, the program cannot consist
exclusively of on-the-job training resulting in
productive employment. From a practical standpoint, ask
yourself the following question: "If the alien was not
employed as a trainee, would someone be needed to fill
that position?"
Application Process
The United States company must file a preliminary
petition with the INS in order to bring foreign
employees to the United States to participate in an
established training program. Once the preliminary
petition is approved, the foreign national must take the
approval notice to a United States consulate to obtain
an H-3 visa. If the foreign national is already present
in the United States in a different visa category or
with a different employer, his/her status must be
changed by filing a separate application in addition to
the employer's preliminary petition.
Duration of Training
Under INS rules, an outer limit of two years is placed
on the training program's length. An extension of stay
up to the two-year limit can be granted if the employer
originally requested less than the full two-year years.
Once an alien has been in the United States for two
years in the HJ-3 category, he/she cannot change status
or return to the United States in the H or L
nonimmigrant categories unless he/she has been
physically present outside the United States for the
preceding six months. The employer must establish the
six months physical presence outside the United States
when filing a new H or L petition.
Special Limitations
The alien worker who enters the United States under an
H-3 training visa cannot engage in productive employment
as part of the training program if such employment will
displace United States workers. Any productive
employment must be incidental to the training and
inconsequential in nature. The spouse and minor children
of the alien trainee may enter the United States in H-4
status. However, the dependents may not accept
employment in the United States unless they have
independently obtained a nonimmigrant visa that permits
employment.
