Interim Decision #2921
MATTER OF ST. PIERRE
In Visa Petition Proceedings
DET-N-18298
Decided by Regional Commissioner June 30, 1982
(1) The purpose of the beneficiary's internship is to learn survey and laboratory procedures in industrial hygierie. This training will consist primarily of on-the-job training,
as the subject matter by its very nature can only be learned in that setting. Since the
beneficiary will not receive any payment from the petitioner, and will merely be observing field tests and not actively conducting them, he will not be engaging in productive
employment which would displace a resident worker. Matter of Kraus Periodicals, 11
I&N Dec. 63 (R.C. 1964). See 8 C.F.R. 214.2(h)(2)(ii).
(2) The beneficiary will not be employed in a position which is in the normal operation
of a business and in which citizens and resident aliens are regularly employed. Matter of
Miyaki Trend Agency, Ins.,
10 I&N Dec. 344 (R.C. 1964).
(3) The beneficiary was granted a paid educational sabbatical by his employer, the University of Windsor. After the one year training program ends, the beneficiary will
return to his teaching position at the university. Thus the beneficiary is not being
trained for eventual employment in the United States, as was found impermissable in
Matter of Glencoe Press,
11 I&N Dec. 764 (R.C. 1966).
(4) The field of industrial hygiene has developed in the United States significantly further
than it has in other countries as a result of the Federal Occupational Safety and Health
• Act of 1970. The petitioner has therefore demonstrated that the proposed training is not
available abroad as required by Matter of Treasure Croft of Calffornia,
14 I&N Dec.
190 (RC. 19'72).
ON BEHALF OF PETITIONER: John E. English, Esquire
English 41c Van Horne, P.C.
4472 City National Bank Bldg.
Detroit, Michigan 48226
This matter is before me on appeal from the District Director's decision of August 3,1981, denying the petition to classify the beneficiary as
a nonimmigrant trainee in accordance with section 101(a)(15)(H)(i) of
the Immigration and Nationality Act, as amended, 8 U.S.C. 1101(a)(15)
(H)(i). The appeal will be sustained.
The petitioner is an environmental consulting firm established in 1954
and located in Southfield, Michigan. Its business is to help industry and
government identify and solve pollution problems. It. has 65 employees
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and annual sales-of $2.5 million. The beneficiary is a 44-year-old native
and citizen of Canada. He is a professor of Chemical Engineering at the
University of Windsor. He asked for and was granted an educational
sabbatical with pay, of one year by his university in order to study
industrial hygiene in the United States.
The beneficiary made application to the petitioner in 1980 for a oneyear internship to learn survey and laboratory procedures in industrial
hygiene such as:
Evaluation of worker exposure to toxic chemicals such was lead, silica, benzene, and
other potential cancer-causing chemicals.
Evaluation and control of noise it the workplace.
Evaluation and control of other physical stresses, such as radiation and heat and cold
stress in industrial work environments.
Development of new controls and procedures for minimizing/eliminating workplace
hazards.
The, petitioner accepted the beneficiary as an intern because of his
superior credentials: Ph.D from Northwestern University in Chemical
Engineering (1965), engineering consultant and university professor since
1965. The.beneficiary wanted to take his training with the petitioner in
Southfield, Michigan because it was the only laboratory with facilities to
provide industrial hygiene training close to Windsor.
The petitioner had had five intern-trainees in the past and was training one at the time this petition was filed. The beneficiary will not
receive any payment from the petitioner. Thus the suggestion of productive employment which would displace a resident worker which was
noted in Matter of Kraus Periodicals, 11 I&N Dec. 63 (R.C. 1964), is
absent. The beneficiary will continue to receive his professor's salary
from the University of Windsor. He will return to his employment there
at the end of one year's training. Thus the beneficiary is not being
trained for eventual employment in the United States which was found
impermissible in Matter of Glencoe Press,
11 I&N Dec. 764 (R.C. 1966).
Although the beneficiary's training is primarily on-the-job. training, .
no productive labor will be involved because the beneficiary will be
merely observing, not conducting field tests. The petitioner states that:
Industrial hygiene, by its very nature, can only be learned in the work setting. It
involves chemicals, noise, dust, gas and vapor measurement and testing done at the
work site. Laboratory and office procedures involve research and evaluation of field
tests and procedures. Thus it can only be learned by going into the field with trained
professionally qualified regular company personnel.
However, the beneficiary will not be displacing a resident worker by
his participation in this training program as required by Matter of Treasure Craft of California;
14 I&N Dec. 190 (R. C. 1972). The petitioner
states that the beneficiary:
. will "tag along' on most field testing . . . he will perform little or ho actual testingas
most of the test procedures are performed under strict governmental reporting and
sign-off requirements . . . . Obviously, the company could not jeopardize the credibility
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of its report by having [the beneficiary, an intern] do such work. The field work he
would do is thus, in fact, extra or make-work work for his use and benefit only. "fie
would be the third man on a normal two man crew which would oilly need two men.
Thus the beneficiary will not, as reqUired by Matter of Miyalct Travel
Agency, Inc., 10 I&N Dec. 644 (R. C. 1964), "be employed in a position
which is in the normal operation of a business and in which citizens and
resident aliens are regularly employed" (id. at 645).
I am satisfied that training in Industrial Hygiene is not available
abroad as required by Matter of Treasure Craft of California, supra,.
The petitioner states that:
Industrial hygiene in the United states is the outgrowth of procedures and technology
developed under the standards and specificiations of Federal Occupational Safety and
Health Act of 1970 and the various statutes and regulations enacted in implementation
thereof. The United States procedures and technology are vastly different than any
other country .. . . There is in fact no similar or even related training in Canada.
I find that all the requirements of 8 C. F. R. 214.2(h)(2)(i) (1981) and the
precedent decisions relating to the H-3 classification have been met.
The petitioner has specifically described a training program which will
prepare the beneficary to return to his position as Professor of Chemical
Engineering with a sub-specialty in environmental engineering — a
field just developing in Canada. The petitioner has demonstrated that
this training is not available in Canada and must be taken here_ The
petitioner has established that the beneficiary will not be engaged in
productive employment that might displace a resident worker (see 8
C.F.R. 214.2(h)(2) (ii)(1981)J.
Therefore, I conclude that this training program is a suitable one by
which a beneficiary may be classified as a nonimmigrant trainee under
section 101(a)(15)(H)(i) of the Act.
ORDER: The appeal is sustained and the petition is approved.
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