Written by attorney Jacob Jan Sapochnick

The H3 Visa - the Perfect Alternative Visa

The H-3 visa category permits the admission of foreign nationals to receive training in the United States for up to two years. Procedures for H-3 visas. An application for an H-3 visa requires the prior filing with a BCIS service center of a petition by the foreign national’s prospective trainer on Form I-129 with an H Supplement, a training program including the names of the prospective trainees, and the proper filing fee. The petition may be filed for multiple trainees so long as they will be receiving the same training for the same period of time at the same location. Additionally, the petition must indicate the source of any remuneration received by the trainee and any benefits that will accrue to the petitioning organization for providing the training. The trainee must demonstrate nonimmigrant intent by having an unabandoned residence in a foreign country. There are no numerical limits on the number of H-3 petitions issued each year. H-3 visas are not based on college education. Upon approval of the petition, an I-797 Notice of Action of approval is issued by the service center. The foreign national submits the I-797 approval notice to an American consulate abroad with Form DS-156 and, if necessary, the DS-157 and other forms required by the consulate to obtain an H-3 visa stamp. A foreign national in the United States may apply for change of status to H-3. Limitations on extensions. Determining the length of the program before filing the petition is important, as it is difficult to explain the need for additional time outside the limits of the program submitted with the petition. An H-3 foreign national trainee who has completed two years of training may not have his or her status extended or changed or be readmitted to the United States with another H or L visa unless he or she has resided outside the United States for at least six months. An extension of stay cannot be filed once a labor certification application or employment-based immigrant visa petition has been filed for the foreign national by the same employer. However, trainees whose training time in the United States is intermittent and does not reach an annual aggregate of at least six months are not subject to the two-year limitation on training. In order to qualify for this exception, however, both the petitioner and the trainee must provide "clear and convincing" evidence that the trainee qualifies for the exception. Training purpose. The heart of an H-3 petition is the reason for conducting the training in the United States. The petition should describe how the U.S. company is benefited by providing the training, the career abroad for which the training will prepare the foreign national, and the reason why the training cannot be obtained in the foreign national’s home country. The training program should be related to the petitioner’s business and cannot be for workers who already possess "substantial training and expertise" in the area of training. The training should benefit the trainee in pursuing a career outside the United States. In addition, the petitioner must establish its ability to provide the training, and the training program itself must not be available in the foreign national’s own country. In addition, the training cannot be in a field unlikely to be used outside the United States, or the primary purpose of which is to eventually staff the domestic operations of the U.S. company. There is a higher likelihood of success for an H-3 petition if the purpose of the training is to prepare the foreign workers for tasks outside the United States that will benefit the U.S. employer, such as training workers for a U.S. owned factory outside the United States or training workers to use particular machinery being purchased by a customer of the U.S. company. When there is no nexus between the U.S. company and the foreign employer of the trainees, the justification for the U.S. training will be more difficult to establish. Training program. The training program must consist of "training" and not be part of the normal operations of the petitioner’s business. A key element of an H-3 training program is that it must not place the foreign nationals in "productive employment" other than that which is "incidental and necessary" to the training. The petitioner must describe the training program in detail. The description must include the nature of the training, the type of supervision, the proportion of time, if any, that will be devoted to productive employment, the number of hours in classroom instruction and/or on-the-job training, and an itinerary if the training will be in more than one location. Practice shows that training programs will be approved if they are specifically described and clearly involve training and not productive employment, and if the petitioner demonstrates some benefit to the U.S. company providing the training.

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