The H-3 classification (also known as the “trainee” visa) allows an individual to enter the United States to receive training in any field or endeavor so that the individual may pursue a career outside the United States.
The training can be in almost any field, including agriculture, commerce, communications, finance, government, transportation, and industrial. Only graduate medical training is prohibited with two notable exceptions: (1) professional nurses that did not qualify for H-1 classification can qualify for H-3 classification to receive brief training and (2) medical students granted a qualifying externship program may also qualify for H-3 classification. Since an H-3 candidate must prove to the USCIS that he or she is coming to the United States primarily to receive training that benefits the candidate, he or she must establish intent to return, including maintenance of a residence in the in candidate’s home country.
To qualify for an H-3 classification, an individual must establish the proposed training program meets four conditions, and does not trigger eight restrictions.
- The individual must establish that the training program meets four conditions:
- (1) The proposed training is not available in the individual’s own country;
- (2) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens are regularly employed;
- (3) The beneficiary will not engage in productive employment is incidental and necessary to the training; and
- (4) The training will benefit the beneficiary in pursuing a career outside the United States.
- Additionally, the USCIS has listed eight restrictions for any H-3 candidate’s training program. If the training program triggers any of these restrictions, the USCIS automatically may deny an H-3 petition:
- (1) The training program deals in generalities with no fixed schedule, objectives, or means of evaluation;
- (2) The proposed training is incompatible with the nature of the petitioner’s business or enterprise;
- (3) The H-3 candidate already possesses substantial training and expertise in the proposed field of training;
- (4) The H-3 candidate’s training teaches knowledge or skills that will unlikely be used outside the United States;
- (5) The training results in productive employment beyond incidental and necessary training;
- (6) The proposed training is designed to recruit and train aliens for employment in a U.S. business or operation;
- (7) The petitioning training organization neither has the manpower or resources to provide the proposed training; or
- (8) The training program is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.
Once an individual attain H-3 status, it may last up to two years. Although an individual in H-3 status can engage in employment “incidental and necessary to the training”, it is recommended that the H-3 individual and the petitioning training organization consult a lawyer before allowing such employment. A substantial deviation from an individual’s authorized training violates an individual’s H-3 status and subsequently may render the individual deportable.
The most common (and problematic) scenario is when an H-3 candidate works with a company’s regular workers. Although such “hands-on experience” is allowed, the USCIS will analyze the employment to see if it is “incidental and necessary” to the training. The USCIS looks at multiple factors, but two key considerations are that (1) the employment does not displace U.S. workers, and (2) whether the company is attempting to staff its U.S. operations with workers disguised as “trainees.” Again, if a company or individual has any questions, they should consult an experienced immigration attorney.
- An H-3 candidate should file a Form I-129 with the regional service center where the candidate expects to receive the training. An approved Form I-129 is required for an H-3 visa (unless the H-3 visa requirement is waived). Additionally, the petition must be supported by a detailed statement that explains six things about the training program:
- (1) Description about the type of training and supervision to be given, and the structure of the training program;
- (2) Sets forth the proportion of time that will be devoted to productive employment;
- (3) Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;
- (4) Describes the career abroad for which the training will prepare the individual;
- (5) Indicates the reasons why such training cannot be obtained in the United States, and
- (6) Indicates the source of any such remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training.
Since the current H-3 requirements are clearly laid out, a training program that meets the required conditions and avoids the USCIS’ restrictions has a reasonably good chance of qualifying as a valid program for H-3 purposes. The critical thing to keep in mind is that the H-3 classification is for trainees; if an individual wants to gain permanent employment in the United States, he or she should pursue other immigration options.