Interim Decision #1630

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 com-

pleted 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.

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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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