Chapter 18 Getting a Temporary Trainee (h-3) Visa

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 18 Getting a Temporary Trainee (H-3) Visa

A. Do You Qualify for an H-3 Visa?

1. Your Invitation to a Training Program
2. Training Is Unavailable in Your Home Country
3. Any Productive Employment Is Incidental
4. You Have the Correct Background
5. You Intend to Return to Your Home Country
6. Bringing Your Relatives

B. Quick View of the H-3 Visa Application Process

C. Step One: Your Employer Submits an H-3 Petition

1. Simultaneous Change of Status If You're Already in the U.S
2. Preparing the Petition
3. Mailing the Petition
4. Awaiting a Decision on the Petition

D. Step Two: Applicants Outside the U.S. Apply to a U.S. Consulate........442

E. Step Three: H-3 Visa Holders Enter the U.S

F. Extending Your U.S. Stay

1. H-3 Extension Petition
2. H-3 Visa Revalidation

The H-3 visa is useful for a limited group of people—those who have been invited to participate in a training program in the United States. The training may be offered by a U.S. branch of their own company or by an unrelated U.S. company. However, the training must be unavailable in the worker's home country. There are no limits on the number of people who can be granted H-3 visas each year.

USCIS regulations recognize some specific types of trainees as potentially H-3 eligible. These include medical interns or residents who are attending a medical school abroad, if the student will engage in employment as an extern during a medical school vacation, and licensed nurses who need a brief period of training that is unavailable in their native country. (See 8 C.F.R. § 214.2(h)(7).) The H-3 is not, however, available to physicians wanting to receive graduate medical education or training.

The H-3 visa can also be used by 50 special education exchange visitors per year—that is, people coming to the U.S. for a special education training program educating children who have physical, emotional, or mental disabilities. (See 8 C.F.R. § 214.2(h)(7)(iv).) The requirements for this group are slightly different than for other trainees.

SEE AN EXPERT

Do you need a lawyer? You can't apply for an H-3 visa without having an employer first—and it's in your employer's interest to hire a lawyer to help. A lawyer can help make sure that your application gets done right the first time (including by writing a complete cover letter explaining why you qualify) and gets decided on before the training program begins.

A. Do You Qualify for an H-3 Visa?

You qualify for an H-3 visa if you are coming to the U.S. for on-the-job training to be provided by a U.S. company. Productive employment in the U.S. can be only a minor part of the total program. The purpose of the training should be to further your career in your home country. Similar training opportunities must be unavailable there.

CAUTION

Few training programs meet USCIS's strict rules. In fact, it's often cheaper and easier to apply for a B-1 business visitor visa, especially if the training program lasts for less than six months (the maximum stay on a B-1 visa). Even if you do qualify, you should explore the quicker, less expensive, and more convenient option of the B-1 visa. Some consulates will approve a so-called "B-1 in lieu of H-3" visa (and mark the visa as such) if you clearly qualify for H-3 and you're clearly an employee of a non-U.S. company. See Chapter 15 for how to get a B-1 visa.

Key Features of the H-3 Visa

Here are some of the advantages and disadvantages of the H-3 visa:

• You can participate in a training program offered by a U.S. company and work legally in the U.S. for the company that is training you, so long as that work is incidental to the training program.
• You are restricted to working only for the employer who admitted you to the training program and acted as sponsor for your H-3 visa.
• Your visa can be approved for the length of time needed to complete the training program, although no more than two years are normally permitted. Extensions of one year at a time may be allowed, but only if the original training has not yet been completed, and only within the overall two-year maximum. The maximum period for special education training is 18 months.
• The visa doesn't allow any grace period for travel, so ideally the trainer should build this time into the program description.
• You and your family can travel in and out of the U.S. or remain in the U.S. continuously while your H-3 visa is valid.
• Visas are available for your accompanying spouse and minor children (unmarried and under age 21).
• Your spouse and children may not accept employment in the United States. Children are expected to attend school, and adults can attend school part time under the terms of the H-4 visa.
• If you stay in H-3 status for the full two years (or 18 months if you're participating in a special education program), then you cannot get any more time in H or L visa status until you have been outside the U.S. for six months. Other changes of status are allowed, but must be requested before your H-3 visa has expired.

You must also possess the necessary background and experience to complete the U.S. training program successfully. Obviously, however, this should be the first time you'll receive this particular type of training. And, as with many nonimmigrant visas, you are eligible for an H-3 visa only if you intend to return to your home country when the visa expires.

Training programs supporting H-3 visas exist most often in two situations. A multinational company with branches in various countries might train employees in its U.S. branches before sending them to work elsewhere. Or, a U.S. company might wish to establish a beneficial business relationship with a foreign company. A good way to do this is by bringing in some of the foreign company's personnel and teaching them about the U.S. business. These people then develop personal ties with the U.S. company.

1. Your Invitation to a Training Program

You need a specific offer to participate in a job training program from a U.S. company or U.S. government agency. The job training slot you are invited to fill can't be in just any occupation. It must be one that will further your career abroad. Many types of occupations qualify, however. For example, you could be coming for training in agriculture, commerce, communications, finance, government, industry, or virtually any other field. (However, physicians are ineligible to use this category.)

The training program must be formal in structure with a curriculum, books, and study materials. (We'll discuss how to prove this further along in this chapter.)

2. Training Is Unavailable in Your Home Country

One of the more difficult requirements for getting an H-3 visa is that the training you will receive in the U.S. must be unavailable to you in your home country. This does not mean that the training cannot exist there, but only that you, personally, do not have access to it.

3. Any Productive Employment Is Incidental

Although you can work in the U.S. while on your H-3 visa, the employment must be merely incidental and necessary to the training activities. If the employment aspect takes up so much time that the company could justify hiring a full-time U.S. worker to perform these duties, your H-3 visa will be denied. As a rule, any productive employment must have a training aspect. You will not qualify for an H-3 visa if this is not clear.

4. You Have the Correct Background

You must have the correct background for the training position you are offered. For example, for a training position as an intern with a U.S. law firm, intended to further your career as an international lawyer, you would have to show that you have a law degree.

5. You Intend to Return to Your Home Country

H-3 visas are meant to be temporary. At the time of applying, you must intend to return home when the visa expires. If you have it in mind to take up permanent...