Temporary Training of a Foreign Worker
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?"
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 H-3 category, he/she cannot change status or return to the United States in the H or L non-immigrant 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.
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.