H-1B Temporary Employment


H-1B status is designated for internationals employed in "specialty occupations" which require highly specialized knowledge and at least a bachelor’s degree or its equivalent. An initial request for H-1B status may not exceed three years; it can be extended to a maximum of six years. If your department later decides to sponsor you for immigrant worker status (i.e., file an I-140 petition for you), in some instances your H-1B status may be extended in one-year increments beyond six years until you can apply to become a permanent resident.

There are two phases in the H-1B petition process: the LCA and the petition itself. To begin the process, the department and the beneficiary must complete and send to ISSS all documents in the H-1B Packet.

Phase I: Labor Condition Application (LCA)

UAB must first file a certified Labor Condition Application (LCA) with the Department of Labor (DOL). An LCA states the wage that will be paid to the H-1B employee and certifies that it is both equal to or above the prevailing wage for the position and no less than the employer is paying similarly-employed US employees. ISSS will review the job description and work with the UAB department to determine the appropriate skill level for the position, then consult the FLC Data Center for a wage determination.
 
In the LCA, UAB attests that:
  • It will pay the H-1B employee the greater of either the prevailing wage or actual wage for the occupation;
  • It will provide working conditions that will not adversely affect those of similarly-employed US employee;
  • There is no strike or lockout underway in the occupational classification at the place of employment;
  • It has publicly notified its employees’ bargaining representative in the occupational classification at the place of employment of its intent to employ an H-1B employee—or, if there is no bargaining representative, that it has posted such notice at the place of employment.
The LCA must be posted in two “conspicuous locations” (e.g., a break room or where employment regulations are posted) at the place of employment for 10 consecutive business days before ISSS can submit it to the DOL for certification (an electronic process which can take 7-10 days). The LCA must be certified before ISSS can file the H-1B petition.

Public Access File

ISSS must maintain a file containing: a copy of the certified LCA, supporting documentation regarding the actual wage, the prevailing wage, a summary of benefits provided to US and H-1B employees, and the posting notices. This file must be created within one day of the date the LCA is filed and must be available for public examination at the employer’s place of business or place of employment for one year beyond the employment end date specified on the LCA. Payroll records must be maintained for three years from the date of the record.

Penalties

The DOL reviews LCAs to determine whether they are complete and contain no obvious inaccuracies. If a complaint is received from an aggrieved party about UAB’s failure to meet the applicable standards regarding wages, working conditions, notification of bargaining representatives or employees, or misrepresentation of a material fact in the application, DOL will investigate UAB. If the investigation goes poorly, UAB may face some or all of the following sanctions:
  • Imposition of civil penalties not to exceed $1,000 per violation;
  • Being barred from filing applications or attestations for at least 1 year; or
  • Being ordered to provide payment of back wages.

Phase II: The H-1B Petition

Petitions for H-1B status may be filed no sooner than six months before the intended employment begins. An initial petition for H-1B status can be approved for up to three years. H-1B status can be extended for up to three more years for a total time in H-1B status of six years. In certain instances, H-1B status can be extended beyond six years in one-year increments if the worker is waiting for PERM approval to begin the path to permanent residence.

To process an H-1B petition, ISSS must receive the following documents from the UAB department:
  • Required Signature and Contact Information Form
  • Certified LCA
  • Completed Form I-129 (prepared by ISSS and signed by Chief Human Resources Officer)
  • Letter from department/division chair (see H-1B Template Support Letter - Non-Clinical):
    • Requesting H-1B status for temporary employment
    • Providing background information on UAB
    • Describing the proposed employment, including duties to be performed, minimum job requirements, title, salary, and start and end dates of employment
    • Describing the prospective employee’s education and experiential qualifications
    • Affirming that UAB will pay the reasonable cost of return transportation if the employee is dismissed before the end of authorized employment, and
    • Affirming that UAB will fully comply with the terms of the approved LCA
  • Copy of prospective employee’s written contract or offer letter from UAB
The department must also submit an H-1B check request to Accounting. Please note that the beneficiary of an H-1B petition (i.e., the prospective hire) cannot be require to pay the USCIS filing fee or any legal costs associated with filing an H-1B petition. However, if the beneficiary—for purely personal reasons related to convenience or travel—desires premium processing, such that USCIS will adjudicate the petition within 15 calendar days, the department can ask or even require the beneficiary to cover the additional $1,225 USCIS fee. The department can also require the beneficiary to cover the cost of any associated filing fees for dependents. The department cannot ask or require the beneficiary to pay the additional $1,225 USCIS premium processing fee if the petition needs to be expedited due to the preference or needs of the UAB department.

To begin processing an H-1B petition, ISSS must receive the following documents from the employee:
  • Copy of diploma (if degree was obtained outside the US, please include a credential evaluation as well to show that your education and/or experience is equivalent to the required US degree)
  • Copies of all current and previous immigration documents (e.g., Forms I-20, OPT cards, DS-2019s, J-1 waiver approval notice, Forms I-797 Approval Notices for all changes of status, etc.)
  • Copy of the biographical page(s) of your current passport and expired/previous passports
  • Copy of all US visa stamps in your current and expired/previous passports
  • Printout of your most recent Form I-94 from www.cbp.gov/i94

If you have any dependents currently in the US and you are applying for change of status to H-1B, a Form I-539 will be required for each dependent along with a check or money order for $370 made payable to “US Department of Homeland Security.” Please also submit copies of your dependents’ passport biographical pages, any US visa stamps, marriage certificate, birth certificate, and all current and previous immigration documents.

H-1B Temporary Employment (clinical)

If you are a UAB department that wishes to sponsor an international medical graduate (IMG) for H-1B status to engage in clinical employment, please submit all of the same documents listed above in the non-clinical section EXCEPT use the template UAB H-1B Support Letter – Clinical instead.

Alabama Board of Medical Examiners Rule 540-X-3-.04 requires individuals to pass Steps 1, 2, AND 3 of the USMLE before they can apply for a “certificate of qualification” (i.e., a license to practice medicine in Alabama). Steps 1, 2, and 3 must all be passed within a seven-year period, and you cannot attempt Step 3 more than three times. Similarly, the H-1B regulations found at 8 C.F.R. 212.2(h)(4)(viii) require UAB to submit evidence that the international medical graduate has a license or other authorization required by the state of intended employment to practice medicine. Taken together, the ABME and H-1B regulations require individuals sponsored for H-1B employment with UAB to have passed all three steps of the USMLE.

As stated by the UAB School of Medicine, “[a]ll residents (graduates of American and international medical schools) must apply for and obtain an unrestricted Alabama license to practice medicine when they meet the minimum postgraduate training requirements stipulated by the Alabama Board of Medical Examiners. In addition, residents who are graduates of international medical schools must apply for and obtain a limited Alabama license no later than 18 months from the start of postgraduate training (PGY 1) and this limited license must be maintained until an unrestricted Alabama license is obtained, or they complete the program, whichever occurs first.” Please see Alabama Medical License section of the School of Medicine website. These criteria are reiterated on pages 11-12 and 25-26 of the Graduate Medical Education Policies and Procedures Manual.

Therefore, if you are a prospective employee who will be sponsored for employment at UAB involving patient contact (i.e., clinical employment), please provide all of the same above documents in the non-clinical section, PLUS:
  • Proof of passing Steps 1, 2, AND 3 of the US Medical Licensing Examination (USMLE)
  • Proof of competence in oral and written English as evidenced by passing ECFMG’s English proficiency test
  • Copy of your license or other authorization required to practice medicine in Alabama (including a copy of the receipt for filing your application for an Alabama medical license); and
  • Copy of your full and unrestricted license to practice medicine in your home country

Change in Position and Termination

If you receive a new offer of employment at UAB in a different position/role/job title, UAB must file an amended H-1B petition with USCIS. If UAB terminates your employment prior to the H-1B expiration date, your H-1B status is no longer valid, and you must leave the US or obtain new employment with ten days. UAB departments should consult ISSS immediately if an H-1B employee’s employment terminates prior to the end date of their H-1B status.

Return Transportation Expenses

If the UAB department dismisses an H-1B employee before the end of the period stated on the Form I-797, Approval Notice, the department must pay “reasonable costs" (i.e., not a first-class ticket) for the employee's return transportation to his/her last place of residence outside the US. UAB is not responsible for return costs if the employee voluntarily terminates employment.

Concurrent H-1B Employment with UAB and UAHSF

Occasionally, a UAB School of Medicine department or division will want to sponsor an international medical graduate for a research faculty position, while the University of Alabama Health Services Foundation (UAHSF) will want to sponsor the same international medical graduate for a clinical physician appointment. In this instance, our office must file two separate H-1B petitions—one in the name of UAB and the other in the name of UAHSF—delineating the responsibilities and salary of the respective roles. The UAB SOM department and UAHSF must also post two separate LCA notices, provide two separate sets of filing fee checks, and sign two different letters printed on their respective letterhead. Please find a template UAHSF H-1B Support Letter – Clinical here.

Export Control

In 2002, the US Government Accountability Office (GAO) reported that vulnerabilities in the deemed export licensing system could allow technology transfers to countries of concern. The GAO reported that the Department of Commerce was not sufficiently coordinating efforts with USCIS to identify and follow up on foreign nationals who change their immigration status to obtain jobs that could involve dual-use technology controlled under the Export Administration Act. In addition, an April 2004 report issued by the Inspectors General of several departments -- including the Departments of State, Commerce, and Homeland Security -- found that USCIS did not include the protection of controlled technology as part of its process of adjudicating change-of-status applications submitted by foreign nationals in the United States.

Some departments may wish to hire temporary international employees to perform research or engage with sensitive information and/or technology. Part 6 of the Form I-129, which UAB must file to hire an H-1B international worker, requires the university to certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and determined whether the department needs to obtain a license from the Department of Commerce or the Department of State in order for the employee to have access to certain technology and information. Complete the Export Control Screening Form and email it to isss@uab.edu so that we can determine whether you will need further guidance on hiring an international employee in a potentially sensitive field.

While USCIS requires export control clearance only for H-1B, O-1, and other temporary employment positions covered by Form I-129, after discussions in late 2016 with UAB’s Compliance Office, ISSS established a policy requiring an export control review for J-1 scholars as well. As discussed above, EAR and ITAR require employers to seek and receive authorization from the US government before releasing controlled technology or technical data to foreign persons in the US. Before issuing a Form DS-2019 to a J-1 scholar, ISSS must receive and review an Export Control Screening Form from your department. If your prospective J-1 hire will conduct or participate in research involving controlled technology or technical data, the UAB department must seek and receive a license from DOC and/or DOS. If a license is required, the prospective hire must not access such technology or data until the license has been obtained.

TN NAFTA Professionals


Canadian and Mexican professionals (known as “treaty nationals,” or TN) are eligible for temporary employment in certain occupation in the US under the North American Free Trade Agreement (NAFTA). Please see this list for qualifying occupations. TN status is initially valid for up to three years and can be renewed indefinitely in one-year increments.

Canadian professionals can be admitted to accept employment in the US by presenting the following documents at the US port of entry: an offer letter from UAB, proof of qualifications (usually a copy of diploma(s)), and proof of Canadian citizenship. No visa stamp is required for Canadian nationals who will be employed in the US in TN status. However, if you are hiring a TN and want to reduce any risk of your employee being denied admission at the US port of entry, you can also file a petition with USCIS using Form I-129. Once approved, your employee can present the TN Approval Notice, along with proof of Canadian citizenship, at the port of entry.

Mexican nationals are eligible for temporary employment under NAFTA as well, but UAB must file a petition for TN status on their behalf, and the Mexican national must schedule a visa appointment at a US embassy or consulate once approved. Mexican nationals do not have the option of applying for admission at the US port of entry.