an introduction to the h-3 visa category

The H-3 visa classification is helpful for individuals who may enter temporarily the United States or change his/her status while already in the United States to receive training that is not available in their home country. Individuals in H-3 status may participate in a training program offered by a U.S. company or organization that is providing the training and work in the U.S. for the company as long as the work is incidental to the training program. The beneficiary of an H-3 petition may only work for the petitioner/employer who sponsored him/her as a Trainee.

Individuals in H-3 status may enter the U.S. as:

• Trainees to receive training in any field of endeavor, other than graduate medical education or training that is not available in the foreign national’s home country.

or

• Special Education Exchange Visitor to participate in a special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.

An H-3 “trainee” must be invited by a U.S. company or organization for the purpose of receiving training, in any field including but not limited to Agriculture, Commerce, Communications, Finance, Government, Transportation, or other professions. The H-3 classification is not intended for employment in the United States. It is designed to provide a foreign national with job-related training for work that will ultimately be performed outside the United States.

The U.S. employer or organization must demonstrate that:

• The proposed training is not available in the foreign national’s native country;
• The foreign national will not be placed in a position which is in the normal operation of the business and in which U.S. citizens and resident workers are regularly employed;
• The foreign national will not engage in productive employment unless such employment is incidental and necessary to the training; and
• The training will benefit the beneficiary in pursuing a career outside the United States.

Please note, a training program may not be approved by USCIS if it deals in generalities with no fixed schedule, objectives or means of evaluation; it is incompatible with the nature of the petitioner’s business or enterprise; it is on behalf of a foreign national who already possesses substantial training and expertise in the proposed field of training; it is in a field in which it is unlikely that the knowledge or skill will be used outside the United States; it will result in productive employment beyond that which is incidental and necessary to the training; it is designed to recruit and train foreign nationals for the ultimate staffing of domestic operations in the United States; does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or it is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.

There is a numerical limit (or “cap”) on the number of H-3 special education exchange visitors. No more than 50 may be approved in a fiscal year. A petition requesting an H-3 “special education exchange visitor” must be filed by a facility which has professionally trained staff and a structured program for providing education to children with disabilities, and for providing training and hands-on experience to participants in the special education exchange visitor program.

In order to obtain H-3 classification, the U.S. employer or organization must file Form I-129, Petition for Nonimmigrant Worker at a Regional Center of the U.S. Citizenship and Immigration Services. If the petition is approved, the trainee may be allowed to remain in the United States for up to 2 years. If the trainee petition is approved for a special education exchange visitor, the trainee may remain in the United States for up to 18 months.

Trainees’ spouses and children who are under the age of 21 may accompany them to the United States as H-4 nonimmigrants. However, H-4 nonimmigrants are not allowed to work in the United States.

If you have any questions about the H-3 visa category, please contact Managing Partner Michael Wildes at michael@wildeslaw.com.