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
- Other professions
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.
A petitioner may seek H-3 classification for a nurse if:
- 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.
Additionally, the petitioner must: Satisfy the H-3 trainee requirements;
- 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.
Special Education Exchange Visitors H-3 special education exchange visitors are participants in a structured special education program that provides practical training and experience in the education of physically, mentally, or emotionally disabled children. This category is limited to an 18-month period of stay and to 50 visas per fiscal year. Training Program Conditions An H-3 petitioner is required to submit evidence demonstrating that:
- 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.
Training Program Restrictions
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.
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. 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.
Special Education Exchange Visitor Program Requirements
There are requirements for H-3 petitions involving special education exchange visitors that are distinct from H-3 trainees. An H-3 beneficiary in a special education training program must be coming to the United States to participate in a structured program which provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. No more than 50 visas may be approved in a fiscal year.
The petition must be filed by a facility which has: a professionally trained staff; and a structured program for providing:
- Education to children with disabilities; and
- Training and hands-on experience to participants in the special education exchange visitor program.
The petition should include a description of:
- 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.
Officers 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. 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 special education exchange visitor.
- 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:
Family Members of H-3 Beneficiaries
An H-3 nonimmigrant’s spouse and unmarried minor children may accompany the H-3 nonimmigrant to the United States as H-4 nonimmigrants. H-4 dependents of H-3 nonimmigrants are not permitted to work in the United States.Adjudication
Officers must carefully review each petition for an H-3 trainee to ensure compliance with the intent of the H-3 category to train foreign nationals who will return to their home countries. Unless specifically provided otherwise, officers should apply a “preponderance of the evidence” standard when evaluating eligibility for the benefit sought. The burden of proving eligibility for the benefit sought rests entirely with the petitioner.
Factors to Consider
The description of the training program should include a specific explanation of the position and duties for which the training will prepare the trainee. The trainee must demonstrate that the proposed training will prepare the beneficiary for an existing career outside the United States.Trainings can be to prepare the trainee for something that is new and unavailable anywhere in the trainee’s country. For instance, a trainee may already be a professional in his or her own right and possess knowledge in the field of proposed training, but will be using the training to further his or her skills or career through company-specific training that a corporate organization makes available in the United States. This could include cases of mid-level and senior-level employees who possess knowledge in their field, but seek to further develop their skills in the proposed field of training. As always, the totality of the evidence is evaluated for each case and all other requirements must be met.Example: A U.S. company develops a new product for which training is unavailable in another country. The U.S. company may petition to train people to use that product, which will enable the trainees to train others to use the new product in their home country.
In cases where the program is entirely classroom-based, officers should review the evidence to ensure that the petitioner establishes by a preponderance of the evidence that the training cannot be made available in the beneficiary’s home country.
If a petitioner claims that the classroom training portion of their proposed training programs will take place online, the petition must provide an explanation as to why the training cannot take place in the beneficiary’s own country. Officers should also investigate whether the online training would be provided by an academic or vocational institution.
In cases where the program is entirely online, officers must review each case and ensure that the petitioner has met their burden of proof (preponderance of the evidence) demonstrating that the training cannot be made available in the beneficiary’s home country.
Description of the Training Program
The petitioner must specify the type of training, the level of supervision, and the structure of the training program. The petitioner should provide the officer with sufficient information to establish what the beneficiary will actually be doing, and should link the various tasks to specific skills that the beneficiary will gain by performing them. On-The-Job Training Hours
The petitioner must specify the number of hours both supervised and unsupervised. The unsupervised work should be minimal and the supervised work should always be oriented toward training.
There are limited circumstances where a proposed training program that consists largely or entirely of on-the-job training may be approved. Officers should carefully evaluate the totality of the evidence against a preponderance of the evidence standard, including whether a U.S. worker is being displaced and if the on-the-job training would allow the trainee to be placed into a position which is in the normal operation of the business and in which U.S. citizens and legal residents are regularly employed.
The petitioner must indicate the source of remuneration received by the trainee, and explain any training program benefits accrued by the petitioning company. Remuneration may come from any source, domestic or international. When assessing remuneration, the officer may consider whether the salary is in proportion to the training position.
Officers should consider whether the beneficiary will be placed in a position which is in the normal operations of the business, and U.S. citizens and residents are regularly employed. Factors to consider include:
- 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.
Petitioners frequently assert that beneficiaries will spend a certain amount of time in “practical training.” This assertion needs to be supported with a clear explanation of the type and degree of supervision that the beneficiary will receive during such periods. If the officer determines that the “practical training” would actually be productive employment, then the petitioner must establish that it would be incidental to and necessary to the training.
The proportion of time that will be devoted to productive employment must be specified. Productive employment should be minimal because the beneficiary should be training and not performing productive work that displaces U.S. citizens or legal residents. A training program which devotes a significant percentage of time to productive employment should be closely scrutinized.
Substantial Training and Expertise in Field of Training
In order to establish that the beneficiary does not already possess substantial training and expertise in the proposed field of training, the petitioner should submit as much information regarding the beneficiary’s credentials as possible. If related to the proposed H-3 training program, copies of the beneficiary’s diplomas and transcripts should be submitted, including any training and education received in the United States, copies of any relevant forms (for example, Certificate of Eligibility for Nonimmigrant (F-1) Student Status-For Academic and Language Students (Form I-20), Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019)). If possible, letters from prior employers detailing the beneficiary’s work experience should also be submitted.
Sufficiently Trained Staff
In order to establish that it has sufficiently trained staff to provide the training specified in the petition, the petitioner should provide the names and credentials of the persons who will provide the training. The petitioner should specify the amount of time each trainer will spend training the beneficiary. The petitioner should also explain how the trainers’ normal responsibilities will be performed while they are training the beneficiary (this is especially important in cases involving relatively small entities, as larger percentages of their workforces will presumably be diverted in order to provide the training).
Unavailability of the Training in Beneficiary’s Country
The petitioner must establish that the trainee cannot obtain the training in his or her country and demonstrate why it is necessary for the trainee to be trained in the United States.
If all documentary requirements have been met and the petition appears approvable, officers should endorse the action block on the petition. The approval period should coincide with the period of training requested by the petitioner, but only up to 2 years for trainees and up to 18 months for special education training program participants.
When approving a special education training program participant, officers need to enter H-3B in CLAIMS and annotate H-3B on the petition. Because of the numerical limitations applicable to the H-3 Special Education Exchange Visitor category, officers must contact the USCIS Service Center Operations office to obtain authorization before approving an H-3 Special Education Exchange Visitor 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.”
If documentary requirements have not been met and the petition is not approvable, officers should prepare and issue a notice of denial and advise the petitioner of the right of appeal to the Administrative Appeals Office.
Transmittal of Petitions
USCIS sends all approved petitions to the Kentucky Consular Center (KCC). The KCC scans and uploads the documentation into the Consular Consolidated Database (CCD). Consular officers and Customs and Border Protection officers have access to the CCD to verify and review documents. Admissions, Extensions of Stay, and Change of Status
H-3 trainees and externs should be admitted for the length of the training program, but for no longer than 2 years. H-3 visa special education exchange visitors should be admitted for the length of the training program, but for no longer than 18 months.
H-3 trainees and special education exchange visitors who respectively, have spent 2 years or 18 months in the United States, in either H-visa or L-visa classifications may not seek extension of, change of status to, or be readmitted in, either H-visa or L-visa status unless they have resided outside the United States for the previous six months.
There are limited exceptions to this rule. For example, the limitation does not apply to an H-3 nonimmigrant whose H or L status was seasonal, intermittent, or lasted for an aggregate of 6 months or less per year.
Additionally, time spent as an H-4 dependent does not count against the maximum allowable periods of stay available to principals in H-3 status (or vice-versa). Thus, a foreign national who was previously granted H-4 dependent status and subsequently is granted H-3 classification, or a foreign national who was previously granted H-3 classification and subsequently is granted H-4 dependent status, may be eligible to remain in the United States for the maximum period of stay applicable to the classification.
For example, a husband and wife who come to the United States as a principal H-3 and dependent H-4 spouse may maintain status for one year, and then change status to H-4 and H-3 respectively, as long as the change of status application is properly filed before the principal H-3 has spent the maximum allowable period of stay in the United States.
Extensions of Stay
H-3 trainees and externs can only extend their stay if their original stay was less than 2 years, and the total period of stay, together with the extension period, does not exceed 2 years. H-3 special education exchange visitors can extend their stay in the United States only if their total period of stay does not exceed 18 months.To file for an extension, the petitioner must file another Petition for a Nonimmigrant Worker (Form I-129) and H Classification Supplement to Form I-129, fully documented in the same manner as the first petition, and also include:
- 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).
If the H-3 beneficiary has a dependent (a spouse, or unmarried child under the age of 21) in the United States, those dependents will need to submit an Application To Extend/Change Nonimmigrant Status (Form I-539).
Change of Status
Certain categories of nonimmigrants are eligible to change status to that of an H-3 nonimmigrant, including certain students and other temporary visa holders. Such change of status requests must establish that:
- 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.