31.6 Trainees (H-3).

(a) Definitions .

(1) H-3 Trainee .

An alien trainee is a nonimmigrant entering at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor (except physicians seeking graduate medical education or training). See 8 CFR 214.2(h)(7)(i) .

(2) Special Education Training Program .

H-3 trainee classification is available to aliens coming to participate in a structured program which provides for practical training and experience in the education of children with physical, mental or emotional disabilities. See petitioner requirements and evidence in 8 CFR 214.2(h)(7)(iv) .

(b) Petitioner Requirements .

The H-3 trainee petitioner must demonstrate that:

· The training is unavailable in the alien’s home country;

· The beneficiary will not be placed in a position which is part of the normal operation of the business and which would otherwise be occupied by a U.S. citizen or resident worker;

· The beneficiary will not be engaged in productive labor (other than incidental labor necessary to the training); and

· The training will benefit the alien pursuing a career outside the United States.

Evidence submitted must include:

· A description of the program describing its structure, supervision given, classroom instruction, and productive hours;

· An explanation why the training cannot be obtained abroad and how the training will prepare the alien for a career abroad;

· The source of any remuneration received by the trainee and any benefits which will accrue to the petitioner. See 8 CFR 214.2(h)(7)(ii) .

(c) Decision Procedures .

(1) Approval .

If the documentary requirements have been met and the petition appears approvable, endorse the action block. The approval period should coincide with the period requested by the petitioner, up to two years for regular H-3 trainees and up to 18 months for special education training program participants. If the alien is present in the United States and requires a change of status, follow procedures described in Chapter 30.3 . If the alien is present in the United States and requires an extension of stay, follow procedures described in Chapter 30.2 . Notify the petitioner of the action taken using CLAIMS Form I-797 , Notice of Action. If action is completed in a local office on an emergent basis, the file must be returned to the appropriate service center for storage.

Because of severe numerical limitations, Headquarters, Adjudications must be contacted to obtain authorization before approving any special education program H-3 petition. The number assigned should be recorded on the front of the petition in the "Remarks" section. The approved petition should also be annotated "Approved Pursuant to Sec. 223 of Pub. L. 101-649.”

(2) Denial .

Prepare a notice of denial, also on Form I-797. Advise the petitioner of the right of appeal to the Administrative Appeals Office. Retain the file, in accordance with local procedures, until the appeal period expires or the appeal is received.

(d) Transmittal of Petition .

(1) Visa Applicants .

If the beneficiary requires a visa, the duplicate of the approved petition, with the supporting documents, shall be sent to the appropriate consul. When advance notice of approval (via fax or cable) is directed to a consul, the petitioner shall be instructed promptly to have the beneficiary contact the consul. The petition, before being mailed, shall be stamped "Approval previously forwarded".

(2) Visa-exempt Applicants .

When the beneficiary does not require a visa, the duplicate petition, without supporting documents, shall be forwarded to the appropriate port of entry.

(e) Adjudicative Issues .

(1) Determining How Much Productive Employment Is Appropriate .

The H-3 category appears to offer a convenient form of relief when a proposed employee is not coming to perform services in a specialty occupation, the position is not a specialty occupation, the petitioner has been unsuccessful in obtaining required temporary labor certification, or lacks the determination to pursue a labor certification. In this situation, the petitioner may decide to simply call the job "a training position" and draft a program which might suggest the beneficiary is going to be learning a job skill, usually with the intent of finding a way to enter the United States and work while exploring the possibilities of permanent immigration to this country. Therefore, each petition for an H-3 trainee must be carefully reviewed. If more than 25% of the alien trainee's time is involved in productive employment, the validity of the training program should be scrutinized. Also, if the job description and the proffered wage seem suspect the adjudicator may request more specific information from the pe titioner as described in 8 CFR 214.2(h)(7)(ii)(B) (see Chapter 10.5 regarding procedures for requesting additional information). There are numerous precedent decisions discussing the H-3 category, since the statute relating to this classification has not been changed in recent years:

· Matter of Miyazaki Travel Agency, Inc. , 10 I&N Dec. 644 (Reg. Comm 1964). Because the beneficiary had been employed for the preceding three or four years as a travel agent, he could not be found to be a bona fide "trainee" in that area. Further, there was no "real" training program, and the beneficiary was to be employed by the petitioner in the regular operation of the business and the need for the beneficiary was continuing in nature.

· Matter of Masauyama , 11 I&N Dec. 157 (Reg. Comm. 1965). An H-3 petition on behalf of the beneficiary as a trainee in retail floristry was denied when the beneficiary had been previously admitted as an H-2, skilled horticulturist. The proposed training program consisted primarily of repetition, review, and day-to-day practical application of the beneficiary's present knowledge. Evidence indicates any training would be incidental.

· Matter of Sasano , 11 I&N Dec. 363 (Reg. Comm. 1965). The petition for an H-3 trainee in American methods of agriculture was denied because the beneficiary is a graduate of an agricultural college in Japan who has 12 years experience with similar crops and because the training was essentially full time productive employment veiled as "practical training."

· Matter of Koyama , 11 I&N Dec. 424 (Reg. Comm. 1965). A petition for an H-3 agricultural worker was denied because the proposed training program was unrealistic in length, repetitious, and would consist primarily of actual on-the-job experience.

· Matter of Bronx Municipal Hospital Center , 12 I&N Dec. 768 (Reg. Comm. 1968). An H-3 petition on behalf of a physician was denied since the offer of a medical residency is essentially an offer of productive employment.

· Matter of Treasure Craft of California , 14 I&N Dec. 190 (Reg. Comm. 1972). An H-3 petition was denied where the petitioner failed to submit an adequate training program or to establish that the alleged training could not be obtained in the beneficiary's country, and because productive employment would be involved which would displace U.S. workers.

· Matter of Frigon , 18 I&N Dec. 164 (Comm. 1981). H-3 petitions on behalf of oil drillers were denied because the classroom training program was essentially a course in the care and maintenance of equipment, the petitioner had failed to establish the training was not available in Canada, productive employment would be involved to a high degree, and the salary was disproportionately high for a bona fide training position.

· Matter of Kraus Periodicals, Inc., 11 I&N Dec. 63 (Reg. Comm. 1964). An H-3 petition was denied where the petitioner has failed to set forth a training program, the specific position, duties, or skills in which the beneficiary is to be trained, and the substantial salary the beneficiary will receive suggest that productive employment which may displace a United States citizen will be involved.

· Matter of Glencoe Press , 11 I&N Dec. 764 (Reg. Comm. 1966). A petition for an H-3 trainee was denied where documentation indicates that the purpose of the beneficiary's training would be to qualify him to accept a full-time position with the petitioner in the United States.

(2) Availability of Training Program in Alien’s Home Country .

A training program which is commonly available worldwide (including in the alien’s homeland) and has no aspects which are unique to the petitioner should not be approved.

· Matter of Saunders , 10 I&N Dec. 647 (Reg. Comm. 1963). The petition was approved for a program to train an "industrial employee" in agriculture; training is not available in the alien's native country and is needed therein; the training program is organized and controlled.

· Matter of International Transportation Company , 12 I&N Dec. 389 (Reg. Comm. 1967). A petition was granted where it was established that a planned training program exists, that similar training is not available outside the United States, that any production of the employee/trainee will be incidental, and that the beneficiary will not be displacing a U.S. worker.