Interim Decision #2888

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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