H-3 Visa

H-3 Visa – Trainee & Special Education Exchange Visitor

 

Purpose of the H-3 Visa Classification –

The H-3 Visa classification allows foreign trainees and visitors to enter the U.S. at the invitation of an organization, facility or individual for (1) the purpose of receiving training in any field of endeavor or for (2) participation in a special education exchange visitor program.

Advantages 

H-3 Trainee Visa: The H-3 trainee program allows foreign nationals to receive training by U.S. employers in a wide variety of activities.

H-3 Special Education Exchange Visitor Visa: The H-3 special education exchange visitor program allows foreign visitors to receive practical training and experience with a U.S. facility in the education of disabled children.

Disadvantages 

  • Foreign Residence Requirement: H-3 Visa Exchange Visitors or H-3 Visa Trainees who have spent respectively 18 months or 24 months in the U.S. in either H-Visa or L-Visa classifications may not seek extension, change status to, or be readmitted in either H-Visa or L-Visa status unless they have resided outside the U.S. for the previous six months. See below for exceptions to this requirement.
  • H-3 Trainee Visa: An H-3 Visa Trainee may not engage in “productive employment,” unless it is incidental and necessary for the foreign national’s training.
  • The H-3 visa trainee category does not apply to physicians for any type of graduate medical education or training.
  • H-3 Special Education Exchange Visitor: Participants in a special education exchange visitor program may not exceed 50 participants during each fiscal year.

Family 

  • Family members of H-3 Visa Trainees and Exchange Visitors are classified in the H-4 visa category.
  • H-4 Visa visitors cannot receive authorization to work unless they change to a nonimmigrant category for which employment is authorized.

Points of Interest 

  • Although the H-3 visa trainee program is not available for graduate medical education or training, a medical student attending a foreign medical school may be classified as an H-3 visa trainee for purposes of an externship in the U.S.
  • Qualified nurses, who may not meet the requirements for the H-1 visa classification, may seek H-3 visa classification as an H-3 visa trainee.

 

1. Definition of H-3 Visa Trainee.

The Immigration and Nationality Act (INA) and immigration regulations define an H-3 Visa Trainee as:

  • A foreign trainee;
  • With a residence in a foreign country that he or she has no intention of abandoning;
  • Who is coming temporarily to the United States;
  • At the invitation of an organization or individual;

For the purpose of receiving training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation or the professions, as well as training in a purely industrial establishment. INA § 101 (a) (15) (H) (iii); 8 C.F.R. § 214.2 (h) (7) (i).

Physician Exclusion: The H-3 Visa Trainee category does not apply to physicians, who are statutorily ineligible to use the H-3 visa classification in order to receive any type of graduate medical education or training.

Externs: A hospital approved by the American Medical Association or the American Osteopathic Association for either an internship or residency program may petition to classify as an H-3 visa trainee a medical student attending a medical school abroad, if the individual will engage in employment as an extern during his or her medical school vacation. 8 C.F.R. § 214.2 (h) (7) (i) (A).

Nurses: An employer may also seek an H-3 visa trainee classification for a nurse who does not qualify for an H-1 visa classification.

There must be a genuine need for the nurse to receive a brief period of training that is unavailable in the nurse’s native country and the training must benefit the nurse and the foreign employer.

The nurse must have a full and unrestricted license to practice professional nursing and the employer must certify that the nurse is fully qualified to engage in the training offered.

 

2. Definition of H-3 Visa – Special Education Exchange Visitor.

The immigration regulations define an H-3 Special Education Exchange Visitor as:

  • A participant in a special education exchange visitor program;
  • Who is coming temporarily to the United States;

To participate in a structured program that provides practical training and experience in the education of children with physical, mental, or emotional disabilities. 8 C.F.R. § 214.2 (h) (1) (ii) (E) and (h) (7) (iv).

 

3. Procedures for H-3 Visas

  • Step One: Petition with the U.S. Citizenship and Immigration Services (CIS).
  • Step Two: Application at U.S. Consulate.
  • Step Three: Inspection at U.S. Port of Entry.

 

4. Step One: Filing Petition with CIS

Petition for H-3 Visa Trainee

Petition for H-3 Special Education Exchange Visitor

 

5. Step Two: Submission Of Visa Application To A U.S. Consulate

If CIS approves the H-3 petition, it will send a notice of approval on Form I-797B to the employer. CIS will also send notification to the U.S. consulate specified on the petition where the individual will obtain his or her visa.

If CIS denies the petition, the employer may appeal the denial, by filing a notice of appeal with the CIS center that rendered the decision. The appeal is forwarded to the CIS Administrative Appeals Unit (AAO) in Washington, D.C. The AAO decision is the final administrative decision on the petition.

Once CIS has transmitted approval to the U.S. consulate, the H-3 Visa Trainee or Exchange Visitor can go to the consulate to make their nonimmigrant visa applications.

Basic application package for a nonimmigrant visa:

  • Form DS-160;
  • A valid, unexpired passport;
  • Passport-type photograph; and
  • Application fee, if any.
  • Note that males between the age of 16 and 45 must also use Form DS-157.

 

6. Step Three: Inspection at a U.S. Port of Entry and Admission

Admission of H-3 Visa Trainee and Exchange Visitor

  • If the H-3 Visa is granted, the H-3 Visa Trainee or Exchange Visitor may be admitted to the United States by an immigration officer at a U.S. port of entry.

Duration of H-3 Visa Trainee Status

  1. The employer’s petition under the H-3 Visa trainee program is valid for up to two years. 8 C.F.R. § 214.2 (h) (9) (iii) (C) (1).
  2. A trainee may be admitted in the H-3 Visa trainee status for a period of up to two years. 8 C.F.R. § 214.2 (h) (13) (i) (A).
  3. The H-3 Visa Trainee will also have an additional period of up to 10 days before the validity period begins. He or she may also have an additional 10 days after the validity period ends in order to depart or extend status.
  4. An application may be made for an extension, but the H-3 Visa Trainee’s total stay may not exceed two years. 8 C.F.R. § 214.2 (h) (15) (ii) (D).

Duration of H-3 Special Education Exchange Visitor status

  1. An H-3 special education exchange visitor petition is valid for a period of up to 18 months. 8 C.F.R. § 214.2 (h) (9) (iii) (C) (2).
  2. A foreign exchange visitor may be admitted in the H-3 special education exchange visitor status for a period of up to 18 months. 8 C.F.R. § 214.2 (h) (13) (i) (A).
  3. An application may be made for an extension, but the H-3 Special Education Exchange Visitor’s period of stay as a participant in a special education training program may not exceed the 18 month period allotted. 8 C.F.R. § 214.2 (h) (15) (ii) (D).

Limitation on H-3 Visa Trainee and Exchange Visitor’s stay

H-3 Visa Trainees who have spent 24 months in the U.S. in either H-Visa or L-Visa classifications may not seek extension, change status, or be readmitted in either H-Visa or L-Visa status unless they have resided outside the U.S. for the immediate prior six months.

H-3 Visa Exchange Visitors who have spent 18 months in the U.S. in either H-Visa or L-Visa classifications may not seek extension, change status, or be readmitted in either H-Visa or L-Visa status unless they have resided outside the U.S. for the immediate prior six months.

These limitations do not apply to H-3 Visa Trainees or Exchange Visitors who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year.

Additionally, these limitations do not apply to H-3 Visa Trainees or Exchange Visitors who reside abroad and regularly commute to the United States to engage in part-time employment.

 

7. Helpful Advice for H-3 Visa Trainees and Exchange Visitors

H-3 Visa Trainees and Exchange Visitors should be aware that the approval of a permanent labor certification, or the filing of an immigration preference petition, on the behalf of the H-3 Visa Trainee or Exchange Visitor can constitute grounds for the denial of any request for an extension of stay.

Individuals otherwise classifiable for H-3 Visa status and who will remain on the payroll of a foreign employer, can be admitted to the United States in the B-1 category for business visitors. Operations Instruction (OI) Section 214.2 (b).

The U.S. employer and the business visitor must demonstrate that all the features of an H-3 training program are present with the exception of the foreign source of payment.

The advantage of using the B-1 category for training is that CIS permission for the employer to train the foreign citizen is not necessary.

The only procedural requirement is for the visitor to apply for the B-1 visa at a U.S. consulate.

It is important to note that consular officers may be reluctant to issue a B-1 visa for this purpose, on the view that the U.S. employer should seek CIS approval in the form of an approved H-3 Visa petition.

 

8. For More Information on H-3 Visas