H-3 Nonimmigrant Trainee or Special Education Exchange Visitor
The H-3 nonimmigrant visa category allows foreign nationals to come temporarily to the United States as either a:
- Trainee who seeks to enter the United States at the invitation of an organization or person to receive training in any field of endeavor, other than graduate medical education or training; or
- Special Education Exchange Visitor who seeks to participate in a structured special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.
- The H-3 nonimmigrant classification is not intended for productive employment. Rather, the H-3 program is designed to provide a foreign national with job-related training that is not available in his or her country for work that will ultimately be performed outside the United States.
The Immigration and Nationality Act (INA) of 1952 contained the precursor to today’s H-3 nonimmigrant classification: “an alien having a residence in a foreign country which he has no intention of abandoning . . . who is coming temporarily to the United States as an industrial trainee[.]”
In 1970, Congress expanded the class of foreign nationals eligible for nonimmigrant classification by deleting the word “industrial” as a modifier of “trainee” in the statute. However, Congress narrowed the H-3 classification in 1976 by inserting the following language into the statute: “other than to receive graduate medical education or training.
Finally, the Immigration Act of 1990 both limited and expanded the H-3 classification. Congress limited the H-3 nonimmigrant classification by adding the following language to the statute: “in a training program that is not designed primarily to provide productive employment[.]” However, Congress indirectly expanded the classification by creating the Special Education Exchange Visitor Program, which the legacy Immigration and Naturalization Service placed within the H-3 category.Congress has not amended the statute since 1990.
H-3 trainees are foreign nationals who have been invited to participate in a training program in the United States by a person, a business, or an organization. The training must be unavailable in the foreign national’s home country. There are no numerical limits on the number of people who can be granted H-3 visas as trainees each year.
An H-3 trainee cannot engage in productive employment in the United States unless such work is incidental and necessary to the training and must not be placed in a position which is in the petitioning entity’s normal operation and in which citizens and resident workers are regularly employed. Finally, the training must benefit the foreign national pursuing a career outside the United States.
An H-3 trainee must be invited by a person or organization for the purpose of receiving training (except as a physician), in any field including:
A purely industrial establishment
A hospital approved by the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residency program may petition to classify a medical student attending a medical school abroad as an H-3 trainee if the student’s training will be done as an extern during his or her medical school vacation. The hospital must also satisfy the H-3 trainee petition requirements.
- The nurse-beneficiary does not have H-1 status;
- Such training is designed to benefit both the nurse-beneficiary and the overseas employer upon the nurse’s return to his or her country of origin; and
- The petitioner establishes that there is a genuine need for the nurse-beneficiary to receive a brief period of training that is unavailable in his or her native country.
- Establish that the nurse-beneficiary has a full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a nursing education or that such education was obtained in the United States or Canada; and
- Include a statement certifying that the nurse-beneficiary is fully qualified under the laws governing the place where the training will be received and that under those laws the petitioner is authorized to give the beneficiary the desired training.
The proposed training is not available in the trainee’s own country;
The trainee will not be placed in a position that is in the normal operation of the business and in which United States citizen and resident workers are regularly employed;
- The trainee will not engage in productive employment unless it is incidental and necessary to the training; and
- The training will benefit the trainee in pursuing a career outside the United States.
Training Program Description
Each petition for a trainee must include a statement which:
Describes the type of training and supervision to be given, and the structure of the training program;
Sets forth the proportion of time that will be devoted to productive employment;
Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training;
Describes the career abroad for which the training will prepare the nonimmigrant;
Indicates the reasons why such training cannot be obtained in the trainee’s country and why it is necessary for the foreign national to be trained in the United States; and
Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training.
A training program for a trainee may not be approved if it:
Deals in generalities with no fixed schedule, objectives, or means of evaluation;
Is incompatible with the nature of the petitioner’s business or enterprise;
Is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training;
Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;
Will result in productive employment beyond that which is incidental and necessary to the training;
Is designed to recruit and train nonimmigrants for the ultimate staffing of domestic operations in the United States;
Does not establish that the petitioner has the physical plant and sufficiently trained workforce to provide the training specified; or
Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student.
The petitioner files the H-3 petition on the Petition for a Nonimmigrant Worker (Form I-129). Multiple trainees may be requested on a single petition if the trainees will be receiving the same training for the same period of time and in the same location.
Education to children with disabilities; and
Training and hands-on experience to participants in the special education exchange visitor program.
The training the foreign national will receive;
The facility’s professional staff; and
The beneficiary’s participation in the training program.
In addition, the petition must show that the special education exchange visitor:
Is nearing the completion of a baccalaureate or higher degree program in special education;
Has already earned a baccalaureate or higher degree in special education; or
Has extensive prior training and experience teaching children with physical, mental, or emotional disabilities.
Any custodial care of children must be incidental to the beneficiary’s training.
Special Education Exchange Visitor H-3 Petition Forms and Documentation Petition for a Nonimmigrant Worker (Form I-129), Including H supplement If the beneficiary is in the United States, a copy of the I-94 or other proof of current lawful, unexpired immigration status (Note that Canadians who enter as a B-1 or a B-2 will not typically have an I-94) Filing fee; see USCIS’ website for current fees Application To Extend/Change Nonimmigrant Status (Form I-539) for dependents of an H-3 who are also in the U.S. dependents should fill out and sign this form, not the petitioner for the H-3 beneficiary (one Form I-539 and fee covers all dependents) Copies of each dependent’s I-94 or other proof of lawful immigration status and proof of the family relationship with the primary H-3 beneficiary (such as marriage and birth certificates) Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) (if applicable) A copy of his or her passport, if the beneficiary is outside the United States A description of the structured training program for providing education to children with disabilities and for providing hands-on experience to participants in the special education program, including noting the professionally trained staff, facilities, and how the exchange visitor will participate in the program Evidence that any custodial care of children will be incidental to the training program Evidence that participant has nearly completed a baccalaureate or higher degree in special education, already has a baccalaureate degree or higher degree in special education, or has extensive prior training and experience in teaching children with disabilities If Requesting Premium Processing: Request for Premium Processing Service (Form I-907) (see USCIS’ website for current fees)
Factors to Consider
Description of the Training Program
Placement into Normal Operation of Business
Whether training that familiarizes the beneficiary with the individual operations of the petitioning company is similar to the training that would be expected of any new employee,
Indications that the beneficiary may remain in the United States working with the petitioner, and
Training where the foreign national is trained alongside U.S. workers.
Substantial Training and Expertise in Field of Training
Sufficiently Trained Staff
Unavailability of the Training in Beneficiary’s Country
Transmittal of Petitions
Extensions of Stay
A letter from the petitioner requesting an extension of status for the trainee, with an explanation of why the training has not yet been completed;
A copy of the beneficiary’s Arrival/Departure Record (Form I-94); and
A copy of the beneficiary’s first Notice of Action (Form I-797).
Change of Status
The beneficiaries entered the United States legally;
The beneficiaries have never worked in the United States illegally, or otherwise violated the terms of their visa; and
The expiration date on the beneficiary’s I-94 has not passed.