Temporary Workers Visas Employment

By December 10, 2016 No Comments

The Act of 1952 established a new nonimmigrant class of
temporary workers.’ Three types of temporary workers
dealt with in this statute are: (1) Those of distinguished
merit and ability (H-l); (2) Other temporary workers to
perform services for which qualified American workers are
not available (H-2); (3) Alien trainees (H-3). The statute
authorizes derivative temporary worker status (H-4)
the alien spouse and minor children of any alien in the
foregoing categories.

(1) Workers of distinguished merit and ability. Con
gress, in 1970, eliminated the requirement that H-l nonim
migrants must come to a temporary position. This change
made possible the admittance of such a temporary entrant
even “if his employment will be in a position or occupation
which is of a continuing or permanent nature.”

It should be noted that under the amended statute a bona
fide H-l nonimmigrant is not precluded from entering for
temporary employment even if he is registered on an immi
grant visa waiting list or has been accorded third or sixth
preference status. But such an H-l nonimmigrant must
still comply with the statutory requirement that he have a
residence in a foreign country which he has no intention of

A person who is qualified as a member of the professions,
for the purposes of third preference immigrant classifica
tion, also qualifies as a person of distinguished merit and
ability for the purposes of the H-l category.

It should be noted that a 1976 amendment of the statute,
bars H-l status to alien graduates of medical schools
coming to the United States to perform services as mem
bers of the medical profession, unless they are coming pri
marily to teach or conduct research, or both, at a public
or nonprofit private educational or research agency in the
United States.6 However, patient care activities incidental
to such teaching or research permitted.
(2) Other temporary workers who will not displace Amer
ican labor. For this category the statute specifies that the
temporary worker must be “coming temporarily … to perform
temporary services or labor.” The repetition of the
“temporary” criterion means that nonimmigrant status in
the H-2 category cannot be approved for a person coming
to perform a job of a permanent character, even though the
period of his services is limited.

Nonimmigrant status in this second category can be so
licited for athletes or entertainers who cannot satisfy the
“distinguished merit and ability” criteria of the first cate
gory. However, as noted in §2.14b, a labor certification from
the Department of Labor must be requested as a prerequi
site to such H-2 classification. Moreover, a 1976 statutory
amendment, effective in January, 1977, precludes the grant
of H-2 status to alien graduates of medical schools coming
to the United States to perform services as members of
the medical profession.

(3) Alien trainees. The H-3 category includes nonimmi
grants who enter at the invitation of an individual or organ
ization for the purpose of receiving instruction in any field
of endeavor, including agriculture, commerce, communica
tion, finance, government, transportation, and the pro
fessions, as well as in a purely industrial establishment.

It is not necessary that any benefit occur to the United
States trainer, and the source of any remuneration received
by the alien is immaterial. Incidental production, necessary
to the training, is permitted provided it does not displace an
American worker. However, the training must not be pro
vided for the purpose of staffing American firms in their
domestic operations, and temporary worker status cannot
be accorded unless it is contemplated that its benefits will
be utilized in a foreign country.

Among the factors considered in passing on a petition
for a trainee are a planned training program, the propor
tion of time to be allocated to incidental involvement in
production, the unavailability of such training in the trainee
country, the need and utility of such training, and the
fact that the trainee will not be displacing a worker in the
United States. Moreover, a 1976 statutory amendment,
effective January 10, 1977, precludes the grant of H-3
status to aliens coming to receive graduate medical edu
cation or training.

Francisco Hernandez

Author Francisco Hernandez

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