USCIS Clarifies Policy on H-3 Trainee Eligibility

By Roy Maurer Sep 29, 2014
LIKE SAVE PRINT
Reuse Permissions
Mid- and senior-level employees may, in some instances, qualify for the H-3 trainee classification, according to recently updated U.S. Citizenship and Immigration Services (USCIS) guidance.

The guidance, which addresses circumstances under which a foreign national may come to the United States as a trainee, consolidates all previous H-3 policy changes and supersedes all related policy memoranda, according to the agency.

Key Features of the H-3 Visa

The H-3 classification is not intended for employment, but designed to provide a foreign national with job-related training that is not available in his or her country, for work that will ultimately be performed outside the U.S.

The H-3 visa category allows foreign nationals to enter the U.S. as either a:

  • Trainee to receive training in any field, other than graduate medical education or medical training, that is not available in the foreign national’s home country.
  • Special education exchange visitor to participate in a training program that provides for practical training and experience in the education of children with physical, mental or emotional disabilities.
Spouses and unmarried minor children of H-3 visa holders may accompany the beneficiary to the United States as H-4 dependents. They are not permitted to work in the U.S., however.

Qualification Criteria

H-3 trainees must be invited to participate in a training program in the U.S. There are no numerical limits on the number of people who can be granted H-3 visas as trainees each year.

An H-3 petitioner is required to submit evidence demonstrating that:

  • The proposed training is not available in the trainee’s own country.
  • The trainee will not be placed in a position that is in the normal operation of the business and in which U.S. citizen and resident workers are regularly employed.
  • The trainee will not engage in productive employment unless it is incidental and necessary to the training.
  • The training will benefit the trainee in pursuing a career outside the United States. H-3 beneficiaries must also establish that they intend to return to their foreign residence upon the termination of their H-3 status.
Each petition for a trainee must include a statement which:

  • Describes the type of training and supervision to be given, and the structure of the training program.
  • Sets forth the proportion of time that will be devoted to productive employment, if any.
  • Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training.
  • Describes the career abroad for which the training will prepare the beneficiary.
  • Indicates the reasons why such training cannot be obtained in the trainee’s country and why it is necessary for the foreign national to be trained in the U.S.
  • Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training.
Training Program Restrictions

A training program may not be approved if it:

  • Deals in generalities with no fixed schedule, objectives or means of evaluation.
  • Is incompatible with the nature of the petitioner’s business or enterprise.
  • Is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training. “A trainee may already be a professional in his or her own right and possess substantial knowledge in a field however, such person may be using training to further his or her skills or career through company-specific training that is only available in the United States,” the agency acknowledged.
  • Is designed to recruit and train foreign nationals for the ultimate staffing of domestic operations in the U.S.
  • Does not establish that the petitioner has the physical location and sufficiently trained workforce to provide the training specified.
  • Is designed to extend the total allowable period of practical training previously authorized for a foreign national student.
Filing

The Form I-129 is used to file for an H-3 visa. Multiple trainees may be requested on a single petition if the trainees will be receiving the same training for the same period of time and in the same location.

Officers will review each piece of evidence to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable and will adjudicate petitions using the “preponderance of the evidence” standard.

“If the petitioner submits relevant, probative and credible evidence that leads USCIS to believe that the claim is ‘probably true’ or ‘more likely than not,’ the applicant or petitioner has satisfied the standard of proof,” the agency said. “If the officer can articulate a material doubt, it is appropriate for the officer to either request additional evidence or, if that doubt leads the officer to believe that the claim is probably not true, deny the application or petition.”

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

Quick Links:

SHRM Online Global HR page

Keep up with the latest Global HR news
LIKE SAVE PRINT
Reuse Permissions

SHRM CONNECT

Join SHRM's exclusive peer-to-peer social network

Join Today

Job Finder

Find an HR Job Near You

SPONSOR OFFERS

Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 3,200 companies

Search & Connect