The USCIS recently released a policy guidance on H-3 nonimmigrant trainees. The new guidance consolidated previously issued guidance on the program.
The H-3 visa is for foreign nationals coming to the U.S. to participate in training programs with U.S. employers. The training program may be in any field including agriculture, commerce, communications, finance, government, transportation, among others. It must not be available in the foreign national’s home country and must benefit his career or employment outside the United States.
Although H-3 trainees are allowed to receive compensation while training, they cannot engage in productive employment unless necessary to the training and should not displace the regular employment of citizens and resident workers.
A foreign nurse may enter the U.S. under an H-3 visa to receive training provided he meets the basic H-3 trainee requirements, is not on an H-1 status, and has a full and unrestricted license in the country where he obtained his nursing education or such education was obtained in the U.S. or Canada.
The petitioner seeking H-3 classification for a nurse must certify that under the laws of the place where the training will be conducted, the nurse is fully qualified to receive training and the petitioner is authorized to give such training.
The petitioner must also certify that there is a genuine need for the nurse to receive training and that the training is designed to benefit both the beneficiary’s career outside the United States and his overseas employer.
The petition for an H-3 trainee is made on Form I-129. The petition must be accompanied by a statement describing the training program, the supervision to be given, the proportion of time devoted to productive employment and the number of hours spent on classroom or on-the-job training.
The statement must also include the reasons for training the beneficiary and why such training cannot be obtained in the foreign national’s country, the benefit the beneficiary’s training will bring to the petitioner, and the amount and source of the beneficiary’s remuneration.
The USCIS will scrutinize the training program and may not approve the program if the following features are present: it deals with generalities and does not have a fixed schedule, objective or means of evaluation; it is incompatible with the petitioner’s business or enterprise; the beneficiary already has substantial training and expertise in the field of nursing and his training will unlikely be used outside the U.S.
In addition, the training program may not be approved if it results in “productive employment, unless necessary to the training”; it is designed to recruit and train foreign nurses for staffing of U.S. hospitals and other healthcare facilities; the petitioner has no venue or sufficient staff to provide proposed training; and it is designed to extend the total allowable practical training allowed a nonimmigrant student.
An H-3 trainee is admitted for the duration of the program but for not more than two years. Extensions may be obtained if their original period of stay under H-3 status was less than two years. After two years, an H-3 trainee may not seek extension, change of status or be readmitted to the U.S. under H or L status unless he resided and had been physically present outside the U.S. for the preceding six months.
There are a few exceptions to this general rule. One exception is where the H or L status of the H-3 nonimmigrant was seasonal, intermittent, or lasted for an aggregate of 6 months or less per year. Also, an H-4 dependent may change status to H-3 and vice versa. The time spent as an H-4 dependent does not count towards the maximum period of stay under H-3 status.
There is no annual limit for the H-3 category. The spouse and children of the H-3 visa holder may enter the U.S. under the H-4 visa.