Interim Decision #2888 

MATTER OF FRIGON 

In Visa Petition Proceedings 

Hoy-N-10770 

Decided by Commissioner September 17, 1981 

(1) Section 101(aX15)(11Xi) of the Immigration and Nationality Ad, 8 U.S.C. 1101(aR15)(110, 

defines a nonimmigrant alien trainee as an alien having a residence in a foreign country 

which he has no intention of abandoning and who is coming temporarily to the United 

States as a trainee, other than to receive graduate medical education or training. 

(2) 8 C.F.R. 214.2(h)(4) provides that a trainee shall not be permitted to engage in 

productive employment if such employment will displace a United States resident and, 

while not prescribing specific requirements, lists a number of informational factors which 

a petitioner must furnish and which a Service District Director must consider. 

(3) Other criteria for qualifying for nonimmigrant visa classification: Existence of an 

actual training program, Matter of Treasure Craft of California. 14 I&N Dec_ 199 

(R.C. 1972); training program must not be for the purpose of recruiting and training 

aliens for the staffing of United States Finns, Matter of Glencoe Press, 11 I&N Dee_ 764 

(E.G. 1966); training must be purposeful and not just incidental to productive employment, 

Matter of Sasano, 11 ItiN Dec. 363 (R.C. 1965); and, repetition, review, and practical 

application of skills alone do not constitute a training program, Matter of Masauyama, 

1&N Dec. 157 (Actg. R.C. 1965). 

ON BEHALF OF PETITIONER: Harry Gee,. Esquire 

2308 First City National Bank Building 

Houston, Texas 77992 

The application is before the Commissioner on certification from the 

Regional Commissioner pursuant to 8 C.F.R. 103.4. The petition vies 

approved on January 16, 1981 by the District Director. On February 5, 

1981, the District Director rendered a new decision approving the petition based upon his own motion and certified the decision to the Regional 

Commissioner. In a decision dated March 5, 1981, the Regional Commissioner denied the petition. 

The petitioner is Resource Drilling, Inc., an oil well exploration and 

drilling company based in Houston, Texas. The beneficiary is Denis 

Frigon, a native and citizen of Canada, who is presently employed in the 

occupation of "driller" by Arrowhead Drilling, Ltd., of Calgary, Alberta, 

Canada, a wholly owned subsidiary of the petitioner. According to the 

petitioner (letter of Executive Vice President Paul L. Yount, dated 

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January 6, 1981), "driller" is the occupational title of one of the five 

levels of employees on most domestic land rigs. The position is at a level 

of experience and training which is ranked higher than the occupational 

titles 'Moorman" "Derriekman" and "motorman" but is subordinate to 

the occupational titles of "rig manager" and "area manager." The petitioner claims that it generally tuts 5 years for a new employee to work 

up to the position of driller and another 5 years to obtain the position of 

rig manager. 

The petitioner initially sought to classify the beneficiary as a trainee 

under section 101(a)(15)(H)(i) of the Immigration and Nationality Act, 8 

U.S.C. 1101(a)(15)(H)(i), based upon a proposed two year training 

program. However, in its response to the District Director's motion to 

reopen, the petitioner stated that the average length of time for the 

training is "probably one year," although the length of time could vary. 

The stated purpose of the training is to "cut in almost half," the period of 

experience required to permit new employees to progress to the higher 

occupational levels in the operation of land based oil rigs (letter of Paul 

L. Yount, February 6, 1981). During the beneficiary's presence in the, 

United States, he will be paid a salary of 4647.60 per week. 

The training program consists of 75 hours of classroom training. The 

remaining working hours are to be spent in supervised on-the-job 

training. Classroom instruction will involve several topics of which 24 

hours will be devoted to well control, 4 hours to blow out prevention, 8 

hours in first aid, 8 hours in drilling fluids and downhole theory and the 

remainder in a variety of other subjects. The unit on well control and 

blowout prevention involves the use of a training device known as a 

"blowout control simulator." The petitioner advises that few of these 

devices are available, that Resource Drilling, Inc., will be only one of 

two exclusively land drilling companies to own this equipment, that 

their equipment is located in the United States, and that similar devices 

are not available to Resource Drilling or its subsidiary, Arrowhead 

Drilling, Ltd., in Canada. 

Section 401(a)(15)(13)(i) of the Inunigration and Nationality Act, 8 

U.S.C. 1101(A)(15)(H)(i), provides for the admission of a nonimmigrant 

alien trainee as follows: 

(H) an alien having a residence in a foreign country which he has no intention of 

abandoning . . . . (i) who is coming temporarily to the United States as a trainee, other 

than to receive graduate medical education or training . . . . 

The regulatory discussion of the nonimmigrant alien trainee is contained in Title 8, Code of Federal Regulations, Part 214.2(h)(4). That 

provision states that a trainee shall not be permitted to engage in productive employment if bitch employment will displace •a United States 

resident- While not prescribing specific requirements, the regulatory 

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provision lists a number of informational factors which a petitioner must 

furnish and which a: Service District Director must consider. These 

elements include a description of training including the proportion of 

time devoted to productive employment, the number of hours devoted 

to on-the-job training without supervision and in classroom instruction, 

identification of the position for which the training will prepare the 

beneficiary, an explanation of why the training cannot be obtained in the 

alien's country, and why it is necessary for the alien to be trained in the 

United States. 

Other criteria for qualifying for 11-3 nonimmigrant visa classification 

have been developed from both the regulatory language and from 

administrative decisions interpreting law and regulation. These criteria 

include the finding that there must exist an actual training program 

(Matter of Treasure Craft of California, 14 I&N Dec. 190 (R.C. 1972)), 

that the training program must not be for the purpose of recruiting and 

training aliens for the staffing of United States firms (Matter of Glencoe 

Press,11I&N Dee. 764 (R.C. 1966)), that the training must be purposeful and not just incidental to productive employment (Matter or Sasano, 

11 I&N Dee. 363 (R.C. 1965)), and that repetition, review, and practical 

application of skills alone do not constitute a training program (Matter of 

Masauyama, 11 I&N Dec. 157 (Actg. R.C. 1965)). 

In his decision of March 5, 1981, denying the visa petition, the Regional 

Commissioner concluded: (1) that the description of classroom instruction for the most part involved care and maintenance of equipment 

commonly used in the drilling industry and that the petitioner had failed 

to establish that this and other training was not available in Canada, 

(2) that the petitioner had failed to demonstrate that the well drilling 

simulator which was portable could not be transported and used in 

Canada and, (3) that because the beneficiary (and others on the rig) 

would be involved in productive employment, the petitioner had failed 

to satisfactorily demonstrate that United States workers would not be 

displaced. 

Upon review, I must agree with the Regional Commissioner that the 

petitioner has not met his burden of proof. The number of classroom 

boars constitutes approximately 5% of the training period if the program length is limited to one year The classroom curriculum includes 

many subject areas such as basic first aid, engne care, proper care of 

drill pipe, and other areas which a mid-level rig worker may either be 

expected to have learned or which could be easily taught in Canada. The 

petitioner has placed great emphasis on the argument that its well 

control simulator cannot be relocated to Canada and that many of its 

instructors are based in Houston and possess expert knowledge. Even 

assuming these facts to be correct, this circumstance alone does not 

warrant favorable action on the petition when 95% or more of the 

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beneficiary's time will be on the rig at a salary of $847.60 per week. The 

petitioner has access to the B-1 nonimmigrant visa classification to bring 

employees to the United States to attend training courses of short duration if, classroom training is not available in Canada. 

The central issue here is the effect or potential effect of productive 

employment upon United States workers balanced against the petitioner's 

need or purpose in training the alien beneficiary. The petitioner through 

counsel states in a supplemental brief dated June 23, 1981, that the 

purpose of the training is "more efficient performance of [the beneficiary's] duties and responsibilities so as to avoid accidents and down 

time on the rigs" and to permit employees to "not only be able to perform their present duties better but . . . also get basic training for 

advancement." These goals are of a general nature and would certainly 

be found as ongoing goals for any responsible employer in structuring 

his workplace. I remain unconvinced that these goals cannot be achieved 

in Canicia or elsewhere. This conclusion is significant when weighed 

against the potential injury to United States resident workers. In the 

supplemental brief of June 23, 1981, counsel responded to a Service 

inquiry as to the number of U.S. workers which will be employed on the 

rigs as follows: 

There will not be anv number of United States workers on the rigs during the training 

period. Moreover, the workers will learn to work as a unit and the techniques and procedures in bhe operation of the rig require hands on experience. 

This response reflects that the purpose of the beneficiary's proposed 

presence in the United States is to obtain experience as opposed to 

training. The response also reveals a situation where there are few or no 

' United States workers regardless of skill level and where substantial 

productive employment will occur. A conclusion that productive employment will occur is inescapable in view of the substantial expense inv aired 

in erecting and operating a drilling rig. Training here must be viewed as 

an incidental product pf the rig's operation over a one or two year 

period. 

The petitioner would argue that there is a general shortage of rig 

workers in the United States, that United States labor is unavailable 

and that displacement of United States workers is not at issue. Even 

conceding a general labor shortage nationwide, local employment conditions may vary considerably. Also, the petitioner's intention to have rig 

crews composed wholly or primarily of alien workers potentially threatens employment access for beginning United States workers at entry 

levels or promotion for United States oil rig workers seeking advancement. 

In view of these potential effects and the high percentage of "on-thejob" presence of the beneficiary, it is concluded that the petitioner has 

not met his burden establishing entitlement to the classification sought. 

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The Regional Commissioner's decision of March 5, 1981 is consistent 

with .both regulations and the precedent decisions discussed above. The 

petitioner still has access to the B-1 nonimmigrant classification tip allow 

the employees of its Canadian subsidiary to benefit from classroom 

instruction of short duration. The use of this alternative classification 

represents a reasonable and balanced means for the petitioner to meet 

his needs while still protecting the interests of United States resident 

workers. The H-3 classification is not an appropriate vehicle to assist 

United States companies to meet. their needs for labor or to provide 

training and experience to foreign workers which are incidental to productive employment. 

ORDER: Petition denied.. 

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