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(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,
b) the position is not a specialty occupation,
c) the petitioner
i) has been unsuccessful
(a) in obtaining required temporary labor certification, or
ii) lacks the determination
(a) to pursue a labor certification.
In this situation,
the petitioner may decide
a) to simply call the job “a training position” and
b) draft a program
i) which might suggest
(a) the beneficiary is going to be learning a job skill,
(i) usually with the intent of finding a way to
(A) enter the United States and
(B) work while exploring the possibilities
(I) of permanent immigration to this country.
a) for an H-3 trainee
1) must be carefully reviewed.
If more than 25%
a) of the alien trainee’s time
a) in productive employment,
1) the validity of the training program should be scrutinized.
a) the job description and
b) the proffered wage
1) the adjudicator may request more specific information
a) from the petitioner
b) as described in 8 CFR 214.2(h)(7)(ii)(B)
(see Chapter 10.5
a) regarding procedures
i) for requesting additional information).
There are numerous precedent decisions
a) discussing the H-3 category,
1) since the statute
a) relating to this classification
has not been changed in recent years:
– Matter of Miyazaki Travel Agency, Inc., 10 I&N Dec. 644 (Reg. Comm 1964). Because the beneficiary had been employed for the preceding three or four years as a travel agent, he could not be found to be a bona fide “trainee” in that area. Further, there was no “real” training program, and the beneficiary was to be employed by the petitioner in the regular operation of the business and the need for the beneficiary was continuing in nature.
– Matter of Masauyama, 11 I&N Dec. 157 (Reg. Comm. 1965). An H-3 petition on behalf of the beneficiary as a trainee in retail floristry was denied when the beneficiary had been previously admitted as an H-2, skilled horticulturist. The proposed training program consisted primarily of repetition, review, and day-to- day practical application of the beneficiary’s present knowledge. Evidence indicates any training would be incidental.
– Matter of Sasano, 11 I&N Dec. 363 (Reg. Comm. 1965). The petition for an H-3 trainee in American methods of agriculture was denied because the beneficiary is a graduate of an agricultural college in Japan who has 12 years experience with similar crops and because the training was essentially full time productive employment veiled as “practical training.”
– Matter of Koyama, 11 I&N Dec. 424 (Reg. Comm. 1965). A petition for an H-3 agricultural worker was denied because the proposed training program was unrealistic in length, repetitious, and would consist primarily of actual on-the-job experience.
– Matter of Bronx Municipal Hospital Center, 12 I&N Dec. 768 (Reg. Comm. 1968). An H-3 petition on behalf of a physician was denied since the offer of a medical residency is essentially an offer of productive employment.
– Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972). An H-3 petition was denied where the petitioner failed to submit an adequate training program or to establish that the alleged training could not be obtained in the beneficiary’s country, and because productive employment would be involved which would displace U.S. workers.
– Matter of Frigon, 18 I&N Dec. 164 (Comm. 1981). H-3 petitions on behalf of oil drillers were denied because the classroom training program was essentially a course in the care and maintenance of equipment, the petitioner had failed to establish the training was not available in Canada, productive employment would be involved to a high degree, and the salary was disproportionately high for a bona fide training position.
– Matter of Kraus Periodicals, Inc., 11 I&N Dec. 63 (Reg. Comm. 1964). An H-3 petition was denied where the petitioner has failed to set forth a training program, the specific position, duties, or skills in which the beneficiary is to be trained, and the substantial salary the beneficiary will receive suggest that productive employment which may displace a United States citizen will be involved.
– Matter of Glencoe Press, 11 I&N Dec. 764 (Reg. Comm. 1966). A petition for an H-3 trainee was denied where documentation indicates that the purpose of the beneficiary’s training would be to qualify him to accept a full-time position with the petitioner in the United States.
(2) Availability of Training Program in Alien’s Home Country.
A training program
i) is commonly available worldwide
(a) (including in the alien’s homeland) and
ii) has no aspects
(a) which are unique
(i) to the petitioner
1) should not be approved.
– Matter of Saunders, 10 I&N Dec. 647 (Reg. Comm. 1963). The petition was approved for a program to train an “industrial employee” in agriculture; training is not available in the alien’s native country and is needed therein; the training program is organized and controlled.
– Matter of International Transportation Company, 12 I&N Dec. 389 (Reg. Comm. 1967). A petition was granted where it was established that a planned training program exists, that similar training is not available outside the United States, that any production of the employee/trainee will be incidental, and that the beneficiary will not be displacing a U.S. worker.
31.7 Nurses (H-1C).
(1) Registered Nurse.
In order to obtain a visa
a) as an H-1C nurse,
1) a nurse must:
a) i) Be licensed
(a) where he or she was educated or
ii) have received nursing education
(a) in the United States;
b) i) Pass an approved examination
(a) (currently CGFNS) or
ii) hold full and unrestricted (U.S.) state license; and
c) Be immediately
i) eligible and
ii) qualified to engage
(a) in professional nursing
(b) immediately upon entering the United States.