A visit to the dentist is hardly a pleasurable exercise for most people! Dentists, however, are the unsung heroes of the medical profession as they perform a very important function in caring for our teeth. It is now well-recognized that good oral health is important to overall health as well self-esteem and well-being. Unfortunately, in addition to the sometimes unnecessary dread that most of us feel when we go to the dentist, we also end up waiting a significant amount of time for our turn. The wait, in some ways, signifies the demand that dentists and dental professionals enjoy in the U.S. It is therefore no surprise, that with such emphasis and demand, foreign national dentists consider working in the U.S. to be a rewarding and worthwhile experience.
Foreign national dentists desirous of working in the U.S. have a variety of nonimmigrant (temporary stay) and immigrant (permanent residence) visa options to choose from. Each visa option is designed to serve a particular need, and they come with their own requirements, advantages and limitations, often making it a difficult exercise for foreign national dentists and their employers to identify the one that would be most suitable in their situation. In this article we present a snapshot of the most popular visa options that are available to foreign national dentists who want to come and work in the U.S., either as a permanent resident or as a temporary working professional.
The ‘Dentist’ TN Visa
The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the U.S. to engage in business activities at a professional level. The TN visa classification is restricted only to citizens (not permanent residents) of Canada and Mexico and only for professionals whose profession is on the NAFTA list. Dentists are eligible to seek admission as TN nonimmigrants because the profession is listed. If applying from abroad, Canadian national are not customarily required to obtain a TN “visa” and can apply directly at a U.S. Port of Entry with the requisite documentation. Mexican nationals are, however, required to obtain a TN visa at a U.S. Consulate or Embassy. There is no petition or application for the TN if the foreign national is outside the U.S. and not obtaining a “change of status.”
Dentist TN Visa - Eligibility Conditions
In order for a dentist to qualify for dentist TN visa classification, a Canadian or Mexican national dentist must possess and must be able to document that he or she has been awarded a D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental or a state/provincial license in dentistry. This means that showing proof of attainment of the professional degree in dentistry from the U.S., Canada or Mexico OR licensure in a U.S. or Mexican state or Canadian province is sufficient
He or she must also have a prearranged full-time or part-time job with a U.S. employer in a position that requires someone in that professional capacity.
- The employer must submit and receive a certified Labor Condition Application (LCA) from the Department of Labor.
The H1B Quota
Timing is a critically important factor to keep in mind when evaluating the option of an H1B for dentist. The H1B visa classification is subject to an annual numerical quota of 65,000 and is commonly known as the “H1B cap”. When submitting an H1B petition, the employer must be sure that the cap is still open, i.e., the numerical limit has not been reached for the present fiscal year. It’s important to note that USCIS’ fiscal year goes from October 1 to September 30 of each year. Since an H1B petition can be submitted no earlier than six months before the start date of employment, the earliest a petition can be filed is April 1 of the previous fiscal year (e.g. in order for a dentist to obtain a H1B visa and start working on October 1, 2012, an H1B petition can be filed no earlier than April 1, 2012.)
The regulations, however, provide exemptions to the numerical cap. Foreign nationals who are employed or have received an offer of employment at an institution of higher education, a related or affiliated nonprofit entity, or a nonprofit or governmental research organization may be exempt from the H1B cap. It is therefore strongly advised that employer institution and foreign national dentist evaluate whether or not their H1B petition will be subject to the H1B cap or will be cap-exempt, so that proper steps are taken in a timely fashion. Moreover, if the H1B petition is subject to the cap, the start date may be an issue. For example, if a dentist needs to begin on September 1 but the cap closed before March of the previous fiscal year, the H1B will not begin until October 1. In this scenario, the employer and dentist may need to find a way to “bridge the gap” or find a suitable alterative.
Period of Admission on a H1B Dentist Visa
All foreign nationals who seek to enter on the H1B visa, including dentists, may be admitted for an initial period of up to three years and the period of admission may be extended for an additional three years, for a maximum of six years. Periods of stay may be limited for several reasons including limited duration contracts and limited licensure. Generally, the H1B visa is limited to a total of six years unless certain conditions are met. Furthermore, spouses and unmarried children under 21 years of age may also seek admission in the H-4 dependent nonimmigrant classification.
The ‘Dentist’ Green Card
Unlike the dentist TN visa and the H1B visa for dentists as above, which are nonimmigrant visa classifications that allow foreign national dentists to live and work in the U.S. temporarily, the “Green Card” or Legal Permanent Residency allows a foreign national dentist to stay and work in the U.S permanently. Under U.S. immigration law, employment-based Green Cards or Immigrant Visas are divided into 5 preference categories. Among those 5 categories, most dentists fall into the Second and Third Employment-Based Preference Categories (EB-2 and EB-3, respectively).
EB-2 Green Card Category: This category is reserved for foreign national professionals holding Advanced Degrees (generally meaning a degree beyond a four-year bachelor’s or a bachelor’s degree + five years of experience) or for Individuals with Exceptional Ability in the arts, sciences, or business.
EB-3 Green Card Category: This category is reserved for foreign national professionals and skilled workers. Professional means a person whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and who is a member of a profession. Dentists fall under the definition of ‘Professional’.
Green Card for Dentists: The Process
Barring a few exceptions, almost all Employment Based Green Card Categories require foreign nationals to already have a job offer from a U.S. employer (the “sponsor”). In the first step of the Green Card process, the sponsoring employer must obtain an approved labor certification from the U.S. Department of Labor (DOL), which verifies that:
- There are insufficient available, qualified, and willing U.S. workers to fill the position being offered at the prevailing wage; and
- Hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
For individuals with Advanced Degrees or Exceptional Ability (EB-2), an exception to the above mentioned labor certification requirement is provided under the ‘National Interest Waiver’ (NIW). Here the labor certification requirement may be waived for foreign nationals whose employment in the U.S. would greatly benefit the nation. No such “waiver” is available for foreign nationals applying under the EB-3 Green Card category.
Once the labor certification is approved by the DOL, the sponsoring employer must file a Form I-140, Petition for Alien Worker, demonstrating among other things, that the employer has ability to pay the offered wage and that the foreign national dentist satisfies the minimum qualifications required to fill the position that is being offered to him or her.
Once the Immigrant Visa Petition is approved by the USCIS, the next step in the Dentist Green Card process depends on where the foreign national dentist is physically located - in the U.S. in valid nonimmigrant status or outside the U.S.
If the applicant is in the U.S. in valid nonimmigrant status or is otherwise eligible, the foreign national can file for “Adjustment of Status” with USCIS and may continue to remain in the U.S. until the application is adjudicated and the foreign national is granted the green card. The beneficiary can also concurrently file applications for Employment Authorization and travel documents with the Adjustment of Status application.
In cases where the beneficiary is outside the U.S., the approved visa petition is forwarded to the National Visa Center (NVC). The NVC will issue instructions on the next steps, including instructions regarding the fees that must be paid and later, the forms and documentary evidence to be submitted. The NVC, upon receipt of all fees and documents, will schedule the applicant for an interview at a U.S. Consulate in their home country or where they presently reside. If approved at the interview, he or she will be issued an Immigrant visa that will be valid for 6 months. He or she will also be given a sealed envelope which he or she must present to the immigration officer upon landing in the U.S.
Note: Regardless of where the foreign national dentist resides, he or she cannot continue to the next step after the immigrant petition approval until his or her “priority date” is current as per the Visa Bulletin (there are only 140,000 immigrant visas available each year for all the employment based categories and there is a further 7% cap for each country). The priority date is generally the date the labor certification application was received by the Department of Labor (DOL) or in the case of NIWs, the date the I-140 petition was received by USCIS.
With a valid Green Card, a foreign national dentist can stay and work in the U.S. as a permanent resident. The spouse and minor children of a Green Card holding dentist are also eligible to apply for a Green Card but each individual must file their own application.
As seen here, foreign national dentists who wish to come to the U.S. to practice in the U.S. have a variety of nonimmigrant and immigrant visa options to choose from. Regardless of the visa option chosen, the eligibility of a foreign national dentist to work in the U.S. primarily depends on his or her ability to satisfy the licensure requirements, which, in turn, varies from state to state. It is therefore necessary that foreign national dentists check with the state dental board where they wish to practice and live regarding the licensure requirements in the respective state before embarking on any immigration related process.
Among the various visa options available to foreign national dentists, each one has its own advantages and limitations. The H1B Visa is most preferred and popular option for foreign national dentists as it allows them to start working immediately. However, the H1B has a numerical cap of 65,000 per year. Additionally, under an H1B, foreign nationals may be allowed to stay only for a maximum of 6 years, unless certain other conditions related to filing of an Immigrant Visa petition are satisfied. The dentist TN visa classification on the other hand, is restricted to citizens of Canada and Mexico alone, and unlike the H1B visa classification, does not support ‘dual intent’. The dentist TN visa classification, however, only requires that you possess a degree in dentistry or licensure in a state/province to be eligible for entry. The Green Card option allows foreign national dentist to live and work in the U.S. in permanent resident status, but usually requires that a U.S. employer be willing and able to permanently sponsor the foreign national dentist. Further, while the priority date for EB-2 Green Card category remains current for most countries (except India and China), there is a backlog or waiting list in respect to the EB-3 Green Card category which means that foreign national dentists may have to wait for a significant period of time before they are issued Green Cards, if found eligible.
There may be other visa options available based on the specific situation presented by the foreign national or the employer. Hence, it is advisable that a foreign national dentist and the employer carefully evaluate all the options against their individual situation and speak with an experienced immigration professional before deciding on which visa option to exercise.
Contact VisaPro if you have any questions regarding immigration for dentists, or any type of business or work visas. Our experienced attorneys will be happy to assist you.
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