The U.S. employer must have an established training program which will consist of more classroom training than on-the-job training. The U.S. employer must also show that the knowledge and experience gained by the alien trainee will not be available in the alien's home country. The alien employee will have to benefit by the training, and may show that the training will be used when the alien returns to a foreign corporation or organization which is connected or affiliated with the U.S. employer's operations.
The alien employee may not be engaged in any productive employment during the training program. Any employment or work by the alien should only be incidental to and a necessary part of the training.
Intent to Return Home
The alien trainee must show that after the temporary period of training, the alien employee will return home and use the training in the home country.
Gaining a H-3 Visa
U.S. Employer Approaches the INS
The U.S. employer must file a petition request with the INS to obtain permission for the alien to enter the U.S and enter the company training program. If the INS approves the petition request, the U.S. employer will receive a notice of approval.
In the U.S. and Gaining H-3 Status
The alien may have entered the U.S. in a different nonimmigrant category. The alien may have entered the U.S. in the B-1 visa category to do business in the U.S. or the alien may have entered the U.S. as a student under the F-1 visa category. The alien may be in legal status and may be authorized to stay for a temporary period of time. The alien during this temporary period of authorized stay may accept the U.S. employer's offer to change status and enter the U.S. employer's established training program.
Therefore, at the time the U.S. employer files a petition request with the INS, the alien will also file a request to change status from that of another nonimmigrant category to that of the H-3 training status category. The alien will send to the INS the arrival/departure record Form 1-94 card. With the approval from the INS, the alien trainee will receive the 1-94 card back with a notation stating that a change of status has been approved to the H-3 status and that the alien may stay and enter the training program of the U.S. employer.
At the U.S. Consul
Generally: The alien will approach the U.S. Consul for approval to obtain a H-3 visa. If the U.S. Consul approves the alien's request, the H-3 visa will bestamped in the alien's passport. Before the alien approaches the U.S. Consul,the U.S. employer should forward to the alien the notice from the INS approvingthe H-3 visa request.
Family Members: The spouse and unmarried minor children under 21 of the alien trainee may also obtain H-4 visas to enter and stay in the U.S. with the alien trainee. The spouse and minor children cannot be employed in the U.S. but they can study in the U.S.
It is worth checking with the U.S. Consul in the U.K. to determine procedures for the alien to obtain the H-3 visa. For instance, the U.S. Consul may require the alien to mail their request to obtain the H-3 visa. The visa will be granted to date according to the notice of approval stating the authorized temporary period of stay in the U.S. for the alien. The visa will usually allow multiple entries to the U.S. during the fixed temporary period of time.
Entry at the U.S. Border
Generally: An alien trainee with the H-3 visa may enter the U.S. The alien trainee will be asked questions and inspected by U.S. immigration officials at the port of entry. The immigration inspectors may ask the alien about the training program and their intent to return home. The U.S. immigration inspectors may authorize entry of the alien trainee into the U.S. after the questions have been adequately answered.
Canadians: Canadian citizens or landed immigrants of Canada from British Commonwealth Countries do not need to obtain the H-3 visa to enter the U.S. To enter under H-3 status, the Canadian citizen or landed immigrant will present the U.S. employer's request and supporting documentation to the U.S. immigration inspectors at the port of entry. After inspection and review by the immigration inspectors, the alien may be able to enter the U.S. under H-3 status. It is important for Canadian citizens or landed immigrants to check with the U.S. port of entry to know what procedures and time delays are involved with the U.S. immigration inspector's review and approval of their request to enter under H-3 status.
Once the U.S. immigration inspectors have approved entry of the alien trainee, the immigration inspector will hand the alien an arrival departure record document known as a Form 1-94 card. The 1-94 card indicates the alien has entered the U.S. under H-3 status, the time of entry, and the period of time that the alien is permitted to stay in the U.S. under H-3 status.
In the U.S.
The alien trainee may receive a H-3 visa for no longer than a two year period. If the U.S. employer initially requested the alien to enter the U.S. only for a one year training period, the alien may be permitted to stay for a second year, if requested by the U.S. employer. Please note that no extensions are permitted beyond the two year limitation of stay. If the alien trainee is in the U.S., the alien will need to also apply for an extension at the same time as the U.S. employer is applying for an extension with the INS. The alien should receive back from the INS the original 1-94 card with approval of the extension of stay under H-3 status.
The U.S. employer may request an extension of stay for the alien when the initial period of authorized stay expires. At this time the alien trainee's visa will also expire. If the alien trainee is traveling outside the U.S. and desires to reenter the U.S. and continue the authorized training program for the U.S. employer, the alien will have to obtain a new H-3 visa from the U.S. Consul before reentry.
Inthe alternative, if the alien will not be able to travel to the U.S. Consul in their home country but will have to travel to other countries because of business reasons associated with the U.S. employer, the alien may show that a visa should be issued from the Visa Office of the U.S. State Department in Washington, D.C.
Change to Another Visa
Once the alien trainee has completed the training program under H-3 status, the U.S. employer may decide to hire the alien under another nonimmigrant category. For instance, the U.S. employer may decide to hire the alien under the H or L visa category. However, before the alien will be granted the H or L visa, the alien and U.S. employer must show the U.S. Consul that the alien has physically resided outside the U.S. in their home country for the preceding six months.
By Edward C. Beshara