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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