Interim Decision #1630 

IVInTrsa OF GLerrooe PnEss 

In Visa Petition Proceedings 

LOS—N-5128 

Decided by Regional Commissioner June 22,1966 

Since the provisions of section 101(a) (15) (H) (iii) of the Immigration and 

Nationality Act do not contemplate the recruitment and training of aliens 

for the ultimate staffing of United States firms in their domestic operations 

but are designed to accomplish the training of alien nonimmigrants in order 

that the benefits of snch training can be utilized in a foreign country, 

petition by a book publishing company to accord beneficiary nonimmigrant 

classification under section 101(a) (15) (H) (iii) of the Act as an industrial 

trainee in the procurement of manuscripts for textbooks addressed to junior 

colleges, is denied because of the indefinite ultimate employment of beneficiary who &Aires to remain permanently in the United States and whose 

services, upon termination of his training, may be utilized in this country 

by the petitioning firm if be lives up to apparent qualifications. 

Discussion: This is an appeal from tin: District Director's deci-

' sion denying the petition because: 

(1) The training proposed is basically on-the-job training to 

familiarize the beneficiary with the individual operations of 

the petitioning company and is no more than the training 

that would be expected concerning any new employee. 

(2) The beneficiary was "budgeted out" of his former employment 

with the parent company in England and there is no indication there would be employment in that country with either 

the petitioning company or the parent company. 

(3) The statute involved contemplates training an individual so 

that he may utilize.his training in a foreign country and does 

not contemplate enhancing his experience by performance of 

day to day tasks involved in the operation of the petitioner's 

business anticipating his permanent employment. 

(4) In view of the beneficiary's expressed desire to remain permanently in the United States and to continue his employment 

indefinitely with the petitioner, it cannot be determined that 

he is a bona fide nonimmigrant: 

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Interim Decision 44630 

The petitioner is a division of the Macmillan Company, a well. 

established firm engaged in the publication of booki. They desire to 

train the beneficiary in. the procurement of manuscripts for textbooks 

addressed to junior colleges. They estimate the required period of 

training as 12 months. The petitioner is presently training four 

other persons in the same field as that contemplated for the beneficiary. They have stated in support of the petition that upon. completion of the training they will, if the beneficiary lives up to his 

apparent qualifications, either request him to apply for a permanent 

visa or have him represent them editorially in Europe. In reply to 

a direct question regarding their plans for the beneficiary they 

stated, "We would only sponsor Mr. Maxwell's application to remain 

in the United States as a resident alien, if that is in fact our final 

decision, if his extensive knowledge of the British book market made 

him uniquely valuable in the performance of the work within the 

United States." 

The :beneficiary is a 48-year-old native and citizen of Great Britain 

presently in the United. States as a temporary visitor for pleasure. 

His wife aaid two children are in- England: He was formerly an 

engineer but for the past eight years has been employed in the editing field. He' as last employed by the Macmillan Company in England. in December 1965. In an interview with a representative of this 

Service, the beneficiary, stated he would like to remain in the United 

States permanently if a position with the petitioner becames available to him. 

In a statement in support of appeal, the petitioner has reiterated 

their desire to be able to freely choose their course of action with 

regard to the beneficiary only after the proposed training is completed and they are able to more accurately evaluate the beneficiary. 

Section 101(a) (15) (H) (iii) defines a nonimmigrant alien trainee 

as "—an alien having a residence in a foreign country which he- has 

no intention of abandoning—who is coming temporarily to the United 

States as an industrial trainee." Section 214(c) augmented by 8 

CFR 214.2(h) (2) (iii) sets forth .the method of petitioning for such 

a trainee, the information that must be supplied, and the restrictions 

concerning productive employment. - 

A. careful review of the entire record. reveals the petitioner his an 

established training program in which five persons, including the 

beneficiary, are engaged and that such training is not available outside of the United States. • The petitioner has stated the productive 

labor involved will not result in the displacement of a resident 

worker. 

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Interim Decision # 1630 

The regulation requires that "There shall - be attached to each petition for an industrial trainee - a statement describing the type of 

training to be given, the position or duties for which the beneficiary 

is to be trained, and whether such training can be obtained outside of 

the United States." The petitioner has furnished the required information but has qualified the statement regarding the position or 

duties for which the beneficiary is to be trained by stating they will 

ask the beneficiary to remain in the United States if the conditions 

previously referred to are met. The beneficiary has evidenced his 

desire to remain in the United States if the petitioner provides suitable employment. In other words, the petitioner desires to employ 

the beneficiary for a probationary period of approximately one year 

and upon completion of this probationary and training period reach 

a decision concerning the beneficiary's value and usefulness to the 

firm.' While training, the beneficiary will be employed in a position 

identical to that held by four other persons. These positions cannot 

be held as other than an integral portion of the functions of the petitioning firm. The feet that the employer places conditions of time 

and performance upon the 'beneficiary's employment does not change 

the permanency of the position itself. The statute involved here was 

designed to accomplish the training of alien nonimmigrants in order 

that they could utilize the benefits of that training in a foreign cowltry. The intent of Congress, as expressed in the definition of a nonimmigrant trainee in section 101(a) (15) (H) (iii) is clear. They 

did not contemplate use of the statute to recruit and train aliens for 

the ultimate staffing of United States firms in their domestic 

operations. 

Tn this ease, the petitioner is undecided concerning the ultimate 

employment of the beneficiary. He may be utilized in England by 

the petitioning firm or, 'if found qualified, he will be kept in the 

United States. There is also the possibility he will not be employed 

by the petitioning firm in any capacity. This proposed procedure, if 

allowed, would result in the importation of an alien on a trial basis 

subject to acceptance or rejection by the petitioning firm and the 

alien's status in the United States controlled by such acceptance or 

rejection. This is not the purpose of the law. 

After careful consideration of the entire record, it is concluded the 

District Director's decision was proper. No evidence has been submitted that warrants disturbing that decision. It is noted the beneficiary is a native of a country for which -visa numbers are available 

and the petitioner is in a position to offer the necessary employment. 

766 
Interim Decision *1630 

Continuation of the beneficiary in his present employment requires 

that he become an immigrant. The appeal will be dismissed without 

prejudice to an application, by the beneficiary, for change of status 

to that of a. permanent resident alien. 

ORDER: It is ordered that the appeal he, and the same is hereby 

didnimed. 

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