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Trainee visas can benefit U.S. exporting companies
Attorney and Civil Law Notary
exporting companies have discovered the utility of H-3 (temporary trainee)
visas. These visas are ideal for nonimmigrant workers admitted for
the purpose of receiving training in any field of endeavor, such as agriculture,
manufacturing, commerce, communications, finance, govern-ment, transportation,
or the professions, as well as training in a purely industrial establishment.
In light of the H-1B visa problem -- Congress simply has not provided enough H-1B visas, and they disappear quickly -- the H-3 visa may be an alternative for entry-level trainees, or foreign students who want an entry-level position but need training first.
The H-3 visa is approved for one entry, good for two years, usually renewable once for not more than two years. Renewal ("extension") must be accompanied by new application form. Because the U.S. Department of Labor (DOL) does not view this visa as a temporary employment hire, a labor condition application is not required, as it is for the H-1B (specialty occupation) temporary worker visa.
The visa's conditions and restrictions follow:
The petitioner is required to demonstrate that (1) proposed training is not available in the trainee's own country; (2) trainee will not be placed in a position in the normal operation of the business in which citizens and resident workers are regularly employed; (3) trainee will not engage in productive employment unless such employment is incidental and necessary to the training; and (4) training will benefit trainee in pursuing a career outside the United States.
Each petition for a trainee must include a statement that (1) describes the type of training and supervision to be given, and structure of training program; (2) sets forth the proportion of time devoted to productive employment; (3) shows the number of hours that will be spent, respectively in classroom instruction and in on the job training; (4) describes the career abroad for which the training will prepare the trainee; (5) indicates the reasons why such training cannot be obtained in the alien's country and why it is necessary for the alien to be trained in the United States; and (6) indicates the source of any payment received by the trainee and any benefit that will accrue to the employer for providing the training.
The company's training program will not be approved if it has the following attributes: (1) deals in generalities with no fixed schedule, objectives, or means of evaluation; (2) is incompatible with the nature of the employer's business or enterprise; (3) is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training; (4) is in a field in which it is unlikely that the knowledge or skill will be used outside the United States; (5) will result in productive employment beyond that which is incidental and necessary to the training; (6) is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States; (7) does not establish that the employer has a physical plant and sufficiently trained manpower to provide the training specified; or (8) is designed to extend practical training previously authorized a nonimmigrant student.
These factors have contributed to a finding that the training offered is "productive employ-ment": (a) a substantial salary offered to the trainee; and (b) a long, repetitious training program consisting primarily of on-the-job training. Training offered to an H-3 trainee must not be for the purpose of recruiting foreign workers.
To hire an H-3 trainee, the U.S. company must develop a training program. If the company already has a program, it would be a good idea to allow the immigration lawyer to review the program for compliance with the federal regulations referred to above. The process for receiving authorization to hire temporary nonagricultural workers is too complicated for the type of one-page article on immigration law topics that I like to write. But this format does provide space to give you some basic information, which you should not use unless you are prepared to spend considerable time wandering through a bureaucratic maze.
WARNING: A foreign national may not be employed in the United States unless he or she is authorized to be employed by CIS. Foreign nationals who enter the United States on H-2B visas may work for the employer specified on their visa, but they may not leave their employment and go to work for another employer without first obtaining a new visa. If you are a U.S. employer and would like to know more about this visa, you may call the Immigration Law Center, at (334) 832-9090. If you would prefer to contact a U.S. immigration lawyer near you, please call the American Immigration Lawyers Association in Washington, D.C., at 1-800-954-0254.
Boyd F. Campbell is a member of the American Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB). He served as Chair of the Immigration Law Committee of the American Bar Association's General Practice, Solo & Small Firm Lawyers Section, and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He is also a memer of the ASB's International Law Section and served as Chair of the International Law Sectionfrom 2000 to 2002. He has practiced international, immigration, and federal employment law in Montgomery, Alabama, since 1988. In August, 2001, Mr. Campell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.
Questions or comments
about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA
Telephone: (334) 832-9090
E-mail: CLICK HERE
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