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(1) H-3 Trainee.
An alien trainee is a nonimmigrant
i) at the invitation of
A) an organization or
ii) for the purpose of receiving training
(a) in any field of endeavor
b) (except physicians
i) seeking graduate medical education or training). See 8 CFR 214.2(h)(7)(i).
(2) Special Education Training Program.
H-3 trainee classification is available to aliens
a) coming to participate
i) in a structured program
(a) which provides for practical
I) training and
(a) in the education of children
(i) with physical, mental or emotional disabilities.
See petitioner requirements and evidence in 8 CFR 214.2(h)(7)(iv).
(b) Petitioner Requirements.
The H-3 trainee petitioner must demonstrate
i) The training is unavailable
(a) in the alien’s home country;
ii) The beneficiary will not be placed
(a) in a position
(i) which is part of the normal operation of the business and
(ii) which would otherwise be occupied
(A) by a U.S. citizen or resident worker;
iii) The beneficiary will not be engaged
(a) in productive labor
(i) (other than incidental labor necessary to the training); and
iv) The training will benefit the alien
(a) pursuing a career
(i) outside the United States.
Evidence submitted must include:
v) A description of the program
(i) its structure, supervision given, classroom instruction, and
(ii) productive hours;
vi) An explanation
(a) why the training cannot be obtained abroad and
(b) how the training will prepare the alien for a career abroad;
vii) The source of
(a) any remuneration
(i) received by the trainee and
(b) any benefits
(i) which will accrue to the petitioner. See 8 CFR 214.2(h)(7)(ii).
(c) Decision Procedures.
If the documentary requirements have been met and the petition appears approvable, endorse the action block. The approval period should coincide with the period requested by the petitioner, up to two years for regular H-3 trainees and up to 18 months for special education training program participants. If the alien is present in the United States and requires a change of status, follow procedures described in Chapter 30.3. If the alien is present in the United States and requires an extension of stay, follow procedures described in Chapter 30.2. Notify the petitioner of the action taken using CLAIMS Form I-797, Notice of Action. If action is completed in a local office on an emergent basis, the file must be returned to the appropriate service center for
Because of severe numerical limitations, Headquarters, Adjudications must be contacted to obtain authorization before approving any special education program H-3 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.”
(2) Denial. [Revised by 1/26/11, AD11-09].
Prepare a notice of denial, also on Form I-797. As required in Chapter 10.7(b)(5) of this manual, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over the appeal. Retain the file, in accordance with local procedures, until the appeal period expires or the appeal is received.
(d) Transmittal of Petition.
(1) Visa Applicants.
If the beneficiary requires a visa,
1) the duplicate of the approved petition,
a) with the supporting documents,
shall be sent to the appropriate consul.
When advance notice of approval
a) (via fax or cable)
is directed to a consul,
1) the petitioner shall be instructed promptly
a) to have the beneficiary contact the consul.
a) before being mailed,
1) shall be stamped “Approval previously forwarded”.
(2) Visa-exempt Applicants.
When the beneficiary does not require a visa,
1) the duplicate petition,
a) without supporting documents,
shall be forwarded
a) to the appropriate port of entry.
(e) Adjudicative Issues.
(1) Determining How Much Productive Employment Is Appropriate.
The H-3 category appears to offer a convenient form of relief
a) a proposed employee is not coming
i) to perform services
(a) in a specialty occupation,