Temporary Workers Visas Employment

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. Congress, 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 abandoning.

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 provided 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.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez