The H-3 visa is a temporary work permit for those coming to receive training from a U.S. company. Employers seeking to use the H-3 category need a detailed training program that shows, among other things, that the worker will not be primarily engaged in productive employment and will not displace U.S. workers. The company will also have to show it has a large enough facility to host classroom style training as well as job shadowing. Also, the company cannot have the intent of permanently hiring the trainee. In fact, the filing of a labor certification or Green Card application by an H-3 employer is grounds to deny an H-3 extension or change.
This type of visa is granted for the length of the training program up to two years. But many training programs are purposefully made shorter than two years to avoid the six-month home-residency requirement of 8 CFR 214.2(h)(13)(iv). This requirement means that an H-3 trainee who has been in such a status for two years is not allowed to extend or change status into another H or L visa without leaving the United States for six months. By making the training program shorter than two years the Beneficiary preserves the ability to change into another status afterwards.
The H-3 petition is filed with an I-129 and does not require any correspondence with the DOL or labor market assessment. Employers have the option to petition for multiple H-3 trainees on one I-129 as long as they are all part of the same training program for the same period of time and in the same location. Beneficiary experience can be a double edged sword in H-3 petitions. They must have sufficient background and training that they will be able to comprehend and apply the subject matter of the training program. But they will be denied if their training or education history shows that they already possess the skills in the training program.
Note: H-3 visas will not be approved for graduate medical education training programs, but can be used for nursing training. There is also a subcategory for special education exchange visitors that has a different set of rules, for which you should consult an immigration attorney.
H-3 Training Programs:
The Training Program is the most crucial part of a successful H-3 application. The USCIS has rigorous standards for this program, requiring a tentative breakdown of each day of lessons, the subject-matter taught, the location of training, the instructor in charge, the frequency of progress evaluations, and more. This requires a tedious schedule that displays every detail of each day of training. Progress evaluations should be scheduled periodically. The evaluations can be written, verbal, or practical, and records of progress should be retained.
Aside from a detailed schedule, the Training Program has to abide by certain parameters. For example, the program must demonstrate as much classroom style training as possible and as little productive employment as possible. The H-3 visa is solely intended for training and if there is more productive employment than is deemed “incidental” to the training then the USCIS may reject the application. A proper Training Program will describe the nature of each training module and blatantly calculate the ratio. Acceptable ratios are largely dependent on the industry and subject-matter of the training, and an immigration attorney can help you determine if your plan is compliant.
H-3 trainees can be paid for their participation in the Training Program. This can be hourly or in the form of a stipend. The pay should be reasonable in light of the industry, position, and length of the Training Program. Overpaid trainees can lead to questions about productive employment and displacement of U.S. workers. Often, Training Programs explain that the stipend is offered to offset the costs of training, or so that there is equal opportunity among H-3 candidates and financial burdens will not prevent qualified candidates from training. The explanation is not an immigration requirement but can minimize the chances of receiving a request for evidence on a case.
Another requirement of the H-3 Training Program is that such training cannot be available elsewhere. The USCIS focuses its analysis on this issue mostly on the trainee’s home country, but can extend to third countries. There are always difficulties in proving negative assertions, but there are a few creative ways to show the unavailability of training. One is to show that no colleges in the target area offer equivalent courses and no companies in that country offer similar training programs. It also helps to show that any similar training in the region is far below the standard of quality or complexity offered by the petitioner’s Training Program. This can be especially helpful if there is a unique or proprietary quality to the petitioner’s products or services.
Related to the non-availability of training elsewhere is the availability of work in the trainee’s home country. Be careful that your evidence on the first issue (non-availability of training elsewhere) doesn’t weaken your case on the second issue (availability of work elsewhere). For example, showing the complete absence of sufficient single-engine pilot training in China on the basis of a dwindling private airline industry can result in rejection because the weak industry may not support another job for a trained pilot. Overcoming these requirements can be done in a number of ways. First, if the petitioning company seeks to open a branch abroad it can easily demonstrate that its proprietary training is not available in the foreign country, and that work will be available there once the company opens its foreign branch. Availability of work can also be shown with newspaper or magazine articles relevant to the industry in that foreign country that demonstrate growth and an increase in related jobs.
If you or your company want to use the H-3 visa category make sure to consult your immigration attorney early in the process because the petition and Training Program require a lot of correspondence and effort to prepare. This visa application is delicate and detailed and requires the assistance of a professional.
