A foreign national may be temporarily admitted to the United States on an H3 visa (or change status from some other visa such as J1 while in the United States) if he or she has a residence in a foreign country which he or she has no intention of abandoning and who is coming temporarily to the United States as a trainee, in a training program that is not designed primarily to provide productive employment. The alien is allowed to bring with him or her, their spouse and minor children if they are accompanying him/her or following to join him/her.
The employer must file a petition for review of the training and for determination of the alien’s eligibility for classification as a H3 trainee, before the alien may apply for a visa or seek admission to the United States (if he/she is applying from outside United States).
The H–3 trainee is a non-immigrant who seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field of endeavour, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment with some exceptions.
The employer is required to demonstrate that the proposed training is not available in the alien’s own country; the alien will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; the alien will not engage in productive employment unless such employment is incidental and necessary to the training; and the training will benefit the alien in pursuing a career outside the United States.
Each petition for a trainee must include a statement which describes the type of training and supervision to be given, the structure of the training program, set forth the proportion of time that will be devoted to productive employment, show the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training, describe the career abroad for which the training will prepare the alien, indicate 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 indicate the source of any remuneration received by the trainee and any benefit which will accrue to the employer for providing the training.
A training program may not be approved which deals in generalities with no fixed schedule, objectives, or means of evaluation. Programs also may not be approved if they are incompatible with the nature of the employer’s business or enterprise, are on behalf of a alien who already possesses substantial training and expertise in the proposed field of training, are 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, are designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States, does not establish that the employer has the physical plant and sufficiently trained manpower to provide the training specified, or is designed to extend the total allowable period of practical training previously authorized a non-immigrant student.
The petition may not be filed or approved earlier than 6 months before the date of actual need for the alien’s training. An approved petition for an alien trainee shall be valid for a period of up to two years.
An H–3 alien trainee who has spent 24 months in the United States may not seek extension, change status, or be readmitted to the United States under either an H or L visa unless the alien has resided and been physically present outside the United States for the immediate prior 6 months. There could be exceptions.
An extension of stay may be authorized for the length of the training program for a total period of stay as H–3 trainees are not to exceed two years, or for a total period of stay as a participant in a special education training program not to exceed 18 months.
Frequently Asked Question
Q: Can I transfer from J1 visa (J1 intern or J1 trainee) to H3 visa while in United States?
A: Yes you may transfer from a J1 visa to H3 visa if your host company or some other employer is willing to sponsor you for the training at their location. You could get an extension of 2 years. This would mean that you could apply for change of status from J1 to H3. There are several conditions and exceptions to be kept under consideration though.
Disclaimer: The above article is not a legal opinion as every case is different and is only for general awareness. Please contact us for specific questions and legal advise.