With respect to the status of international visitors as employees or volunteers, the receipt of a paycheck from UAB or HSF is only part of the analysis that must be conducted before using the services of an international visitor. Even unpaid “work” can have immigration and compliance consequences in the context of international visitors.

The Immigration and Nationality Act [8 C.F.R. § 274(f)] defines “employee” as “An individual who provides services or labor for an employer for wages or other remuneration.” “Other remuneration” can encompass items such as housing, child care, transportation, etc. The Department of Labor (DOL) defines a “volunteer” as an “individual who performs hours of service ... for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.” The DOL has two concerns: protecting jobs for US workers and preventing exploitation of all workers.

Individuals on B or other business/tourist visas, and individuals on J-2 visas who do not have an EAD, are not to be considered “free labor” for unpaid grant positions, research, grant writing, literature review, or other tasks for which UAB would normally hire and pay an employee.

Considerations When an International Visitor Wants to “Volunteer” for You

  • Are the person’s prospective duties ones that are normally filled by a paid employee?
  • Are there other individuals in the department who perform such tasks without pay?
  • USCIS considers “work” to include performing a job that is normally paid, or if other people performing the same or similar jobs are compensated. Basically, anything done for UAB’s benefit (including for a UAB faculty member’s benefit) on a consistent or daily basis is considered “work.” J-2s without an EAD can participate only in true volunteer activities (i.e., for charities, religious or community organizations, or other similar entities).

J-2 and H-4 Dependents

Many spouses of J-1 and H-1B primary visa holders at UAB are established, talented scientists in their own right and seek opportunities to “stay active” in the field or keep up their CV while in the US accompanying their J-1 or H-1B spouse. However, as stated above, "volunteering" cannot displace a US worker and is reserved for more charitable opportunities.

J-2 dependents can apply for an Employment Authorization Card (EAD) for $410 to accept work in the United States. The J-2 dependent cannot be in the US to work in order to support the J-1 spouse, since J-1s are required to provide proof of their own funding (in the form of UAB salary, government sponsorship, or personal funds) for the duration of their stay in the US. J-2s cannot “volunteer” to help in a lab, with research or literature review, or any other activity in any capacity that would displace a paid worker (including post docs, student assistants, GRAs, etc.) or result in a benefit to UAB.

With only one narrow exception, H-4 dependents cannot obtain work authorization in the US and therefore cannot participate in any activity outlined above ("helping" in a lab, etc.). The only exception is if the primary beneficiary (i.e., their H-1B spouse) has an approved Form I-140. USCIS is also expected to withdraw the work authorization benefit for even those H-4 spouses in the next six months.

International Medical Graduates

If you are inviting an international medical graduate (i.e., an individual who earned a medical degree outside the US or Canada) to UAB for research, please be sure to review the International Medical Education office's checklist to make sure they comply with UAB's health and safety policies. Please also see UAB's International Medical Education office page for more details.

B, Visa Waiver, and/or ESTA 'Visas'

The B-1 visa (or Visa Waiver Program, VWP, for those countries on the list) is for business travelers and is not an option simply to avoid the additional paperwork and compliance issues of inviting someone to UAB in J-1 or H-1B status. B-1/VWP status is appropriate ONLY for visitors who will come to UAB to engage in independent research as long as BOTH: a) neither UAB nor any other US source is paying the visitor, AND b) the results of the visitor’s independent research will not benefit UAB. If the visitor will receive payment from a US source and/or UAB will benefit from the results of the research, the visitor MUST come to UAB in J-1 or H-1B status.