Chapter 3 - Trainee Program Requirements
A. Training Program Conditions
An H-3 petitioner is required to submit evidence demonstrating that:[1]
-
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.[2]
B. Training Program Description
Each petition for a trainee must include a statement which:[3]
-
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 person 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.[4]
C. Training Program Restrictions
A training program for a trainee may not be approved if it: [5]
-
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;[6]
-
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.[7]
D. Filing
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.[8]
Officers will review each piece of evidence for relevance, probative value, and credibility to determine whether the petitioner submitted sufficient evidence establishing that the petition is approvable.[9] The table below serves as a quick, non-exhaustive reference guide listing the forms and evidence required when filing a petition for an H-3 trainee.
|
Trainee (H-3) Petition Forms and Documentation |
|---|
|
Petition for a Nonimmigrant Worker (Form I-129), Including H supplement |
|
If the beneficiary is outside the United States, a copy of his or her passport |
|
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) |
|
All Trainees Except Special Education Exchange Visitors Must Provide: |
|
A detailed written statement from the petitioner containing:
|
|
Evidence that the beneficiary will not be placed in a position which, in the normal operation of the business, U.S. citizen and resident workers are regularly employed. |
|
Proof that the petitioner has the physical facility and sufficiently trained staff to provide the training described in the petition. |
|
An explanation from the petitioner regarding benefits it will obtain by providing the training, including why it is willing to incur the cost of the training. |
|
An explanation as to why the training must take place in the United States, instead of in the beneficiary’s country along with evidence that similar training is not available in beneficiary’s home country. |
|
A summary of the beneficiary’s prior relevant training and experience, such as diplomas and letters from past employers. |
|
If the beneficiary is a nonimmigrant student, evidence that the proposed training was not designed to extend the total allowable period of practical training. |
|
Petitioners seeking H-3 status for a nurse must also provide proof:
In addition, petitioners seeking H-3 status for a nurse must also include a statement certifying:
|
|
Hospitals petitioning for externs must also:
|
|
If Requesting Premium Processing: |
|
Request for Premium Processing Service (Form I-907) (see USCIS website for current fees) |
Footnotes
[^ 1] See 8 CFR 214.2(h)(7)(ii)(A).
[^ 2] H-3 beneficiaries must also establish that they intend to return to their foreign residence upon the termination of their H-3 status. See INA 214(b) and INA 101(a)(15)(H)(iii).
[^ 3] See 8 CFR 214.2(h)(7)(ii)(B). See 55 FR 2628-29 (PDF) (Jan. 26, 1990).
[^ 4] See 8 CFR 214.2(h)(7)(ii)(B).
[^ 5] See 8 CFR 214.2(h)(7)(iii). Additionally, externs and nurses have further requirements. A hospital petitioning for an H-3 extern must also demonstrate that: It has been approved by either the American Medical Association (AMA) or the American Osteopathic Association (AOA) for either an internship or residency program; the beneficiary is currently attending medical school abroad; and that the beneficiary will engage in employment as an extern for the petitioner during his or her medical school vacation. See 8 CFR 214.2(h)(7)(i)(A). A petitioner seeking H-3 classification for a nurse must also provide a statement certifying that the beneficiary is fully qualified under the laws governing the place where the training will be received to engage in such training, and that under those laws the petitioner is authorized to give the beneficiary the desired training. See 8 CFR 214.2(h)(7)(i).
[^ 6] A trainee may already be a professional in his or her own right and possess substantial knowledge in a field; however, such person may be using a training to further his or her skills or career through company-specific training that is only available in the United States. As always, the totality of the evidence must be examined and all other requirements must be met.
[^ 7] For additional information about the training program and factors to consider during adjudications, see Chapter 6, Factors to Consider [2 USCIS-PM J.6(B)].
[^ 8] See 8 CFR 214.2(h)(2)(ii).
[^ 9] The standard of proof applied in most USCIS adjudications, including H-3 petitions, and administrative immigration proceedings is the “preponderance of the evidence” standard. Therefore, if the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonesca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). If the officer can articulate a material doubt, it is appropriate for the officer to either request additional evidence or, if that doubt leads the officer to believe that the claim is probably not true, deny the application or petition. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M, 20 I&N Dec. 77, 79-80 (Comm. 1989)).