Hiring an Associate Dentist Who Requires Visa Sponsorship

Long a part of medical doctor staffing, dentists requiring visa sponsorship have come to represent a much larger segment of the available work force. Often these associate candidates bring extensive training and geographic flexibility that is not easily found in the domestic applicant pool. Also, they often offer a longer-term associate solution, as the visa process discourages the kind of “job-hopping” that is more routine with traditional early career dentists.

Whether a practice is considering sponsoring a new Visa or transferring an existing Visa, the process is not as intimidating as it may appear. Our friend Ken Gauvey of The Law Practice of Ken C. Gauvey (http://www.gauveylaw.com/) provides the following overview of the Visa sponsorship process from the employer’s perspective. For more information or to consult with an immigration lawyer, please contact Ken Gauvey at www.gauveylaw.com.

Hiring Doctors in the Era of Health Care Shortages

The U.S. faces a national shortage of doctors. In fact, the Association of American Medical Colleges released a report indicating that the U.S. shortage of qualified physicians is at 20,000 now with half of the nation’s doctors being over the age of 50. As a result, that shortage, even before the introduction of the Affordable Care Act, is expected to grow exponentially in the coming years. A study in the Annals of Family Medicine projects that the country will need 52,000 more primary care physicians by 2025. According to the Journal of the American Medical Association, only one in five graduating medical residents plan to go into primary care. In the face of this shortage, it is clear that hospitals in the U.S. will have to rely more on qualified foreign doctors to fill this gap.

Unfortunately, the means to hire foreign nationals are limited and complex. In general, when hiring a foreign national doctor, the immigration timeline follows a predetermined schedule. In many cases, a doctor will need a J-1 waiver, followed by an H-1B visa, followed by some form of permanent residency sponsorship. Doctors who come to the U.S. to finish their studies commit to a two-year period of practicing medicine in their home country. The J-1 waiver is required to waive that two-year commitment. In exchange, those doctors agree to work for three years in the U.S. in a medically underserved area. However, once the waiver is approved, the doctor still needs an H-1B visa to actually work in the U.S.

The J-1 Waivers are limited. At present, each state only gets 30 of them. Moreover, each state has its own processes and procedures developed by the state department of health in place to determine who gets one of the waivers. Some states require the putative employer to demonstrate six months of recruiting efforts. Other states have few actually requirements outside of an application. Some states process the waivers at no cost to the employer; others have large fees associated with waiver requests. Having knowledgeable counsel who is familiar with the requirements for multiple states is of significant benefit to the employer. Once the state approves the request, the U.S. Department of State has to approve it. This process generally takes six to ten weeks. Following this, the Department of Homeland Security (DHS), through USCIS provides the final approval.

Concurrent with the review, the employer can file for the H-1B, which is the visa that actually allows the doctor to work. With premium processing, the H-1B can be approved, along with the final waiver, two to three weeks after the Department of State issues its approval. The H-1B is valid for three years, and permits one three year extension. During this period, the employer has to make a determination on whether to sponsor the employee for permanent residency.

There are many ways to obtain permanent residency through an employment relationship. The two most prominent ways are the National Interest Waiver (NIW), and Labor Certification. If a doctor subject agrees to work for five years (two in addition to the typical J-1 service requirement) in a medically underserved area, the doctor can immediately apply for a NIW. Additionally, assuming an immigrant visa is immediately available; the physician can also file for permanent residence, though the final approval of permanent residence is granted only upon proof of five years of service. An additional benefit afforded by the NIW and concurrent application for permanent residence is that the immediate family of the physician may apply for work authorization. Moreover, this process avoids the Labor Certification process which is time consuming and expensive.

The Labor Certification process requires the employer to conduct a specific test of the labor market to determine whether there are any qualified, ready, willing and able U.S. physicians to fill the position. The employer must conduct, at minimum, a two month recruiting effort using methods dictated by the U.S. Department of Labor. The employer must conduct a good faith recruiting campaign using five different types of recruitment efforts such as newspaper advertisements, web advertisements, etc. The employer has to interview minimally qualified candidates and if one candidate meets the qualifications the Labor Certification process fails. Therefore, this process requires an in depth review of the job description, and strict adherence to the regulatory requirements for the recruiting campaign. At the end of the recruiting effort, assuming no minimally qualified candidates are found, the employer, through their attorney, can file the Labor Certification application asking the DOL to certify the position. The DOL can request an audit, approve or deny the application, or have the employer redo the recruitment process under DOL supervision. Once approved, the employer can file the employment-based visa application. Following approval of the visa, and the completion of the three-year waiver requirement, the doctor can then file for permanent residency, subject only to the per country limitations in this process.

The process for hiring foreign national doctors is complex, but manageable with competent legal counsel. Employers should not shy away from engaging in this process especially as the shortage of doctors in this country continues to grow. However, employers do need to know the options when seeking to hire doctors who are subject to the J visa requirements. Competent legal counsel can manage the J waiver process and the H-1B process; and provide legal guidance throughout the Labor Certification process; and can prepare the remaining immigration filings. Therefore, while hiring doctors can be complex, employers cannot afford to shy away from the process in this era of health care shortage.

For more information or to consult with an immigration lawyer, please contact Ken Gauvey at www.gauveylaw.com.

Immigration Options for Dentists

by Ken C. Gauvey
www.gauveylaw.com

There are many associate dentist hiring cycles throughout the year. December through February is the busiest time of year for US-trained foreign nationals who will need to navigate the immigration process in order to work in the country.

With that in mind, we recently invited Ken Gauvey of www.gauveylaw.com to contribute. Ken has experience advising dentists and dental practice owners through the visa and permanent residency processes.

Dentists are placed in a strange position in U.S. immigration laws.  While being recognized as health-care professionals, dentists are precluded from applying for the same types of immigration benefits offered to other health-care professionals.  Therefore, with few exceptions, United States Immigration and Citizenship Services (USCIS) treat dentists more akin to engineers than doctors.  However, there are exceptions to this treatment that dentists can take advantage of that can either shorten the time it takes to get Lawful Permanent Residency (LPR), known as a Green Card, and remain in the U.S.

We hope that this overview will answer questions and ease concerns of those preparing to seek sponsorship:

Temporary Work Authorization

The standard immigration process involves working under some form of temporary visa status before gaining LPR status.  This temporary visa can be one of several visa options for professionals and include the H-1B, TN, and E visa categories.

The primary temporary visa status for working in the U.S. is the H-1B visa. The H-1B is a visa limited to professionals requiring at least a Bachelor’s degree and who are working for a specific U.S. employer as stated in the H-1B petition.  The H-1B is approved for a period of three years, with one three-year extension permitted, unless an application for LPR status was filed 365 days prior to the end of the 6th year of H-1B status, in which case the H-1B can be extended until the LPR status is finalized. However, there are only 65,000 H-1B visas available every year.  These visas are used by everyone from models, to IT and engineers, to doctors and dentists.  There are an additional 20,000 H-1Bs available for those who received a Master’s degree in the U.S. In 2013, USCIS received 124,000 H-1B petitions within the first five days of the application period, which starts every year on April 1. The H-1B therefore is fairly dependent on timing and luck.

The H-1B process involves two steps. Once the employer wants to hire a dentist on an H-1B, the employer, through counsel, files a Labor Condition Application (LCA).  The LCA is filed with the U.S. Department of Labor.  The DOL then certifies the LCA within, typically, 5-7 business days.  The LCA is then filed with USCIS, along with the I-129, evidence and supplements, to apply for the H-1B.  If the application is filed on April 1, if approved, the dentist can begin working on October 1 of that same year.

H-1B transfers work in a similar way with one important exception.  An H-1B transfer occurs when the dentist is already in the U.S. on an H-1B and wants to change employers. The new employer must sponsor the H-1B transfer.  The LCA, I-129, evidence and supplements are still required.  However, the dentist can begin working for the new employer as soon as the transfer application is sent to USCIS, rather than waiting for an approval.  

Dentists from Canada and Mexico have additional options for working in the U.S. These dentists can work under a NAFTA visa as a TN.  The TN is a visa that permits certain categories of workers, including dentists to work in the U.S. for a specific U.S. employer. The TN can be renewed without limitation as long as the dentist is employed by the employer.

Dentists from Australia can enter on the E-3 visa.  This visa is essentially an H-1B specifically for individuals from Australia. Importantly, the E-3 has its own numerical limitation of 10,500.  The E-3 may be renewed every two years.

Lawful Permanent Residency

Once a dentist is employed in the U.S., there are several ways to remain in the U.S. as a Lawful Permanent Resident.  The most used is the Labor Certification process, or PERM.  However, dentists and employers can avoid this lengthy and costly process in a couple of ways including demonstrating extraordinary ability or demonstrating acclaim as an outstanding researcher.

The Labor Certification process, or PERM, is the most often used avenue to Lawful Permanent Residency. In PERM, the employer engages in a specified three-month recruitment effort as dictated by the U.S. Department of Labor to try to fill the dentist’s position.  If no U.S. qualified applicants apply for the position, the employer then asks the DOL to certify the PERM application.  That certified application is then used to file for the immigrant petition and eventually Lawful Permanent Residency.  The entire process can take from one to ten years depending on how the DOL treats the PERM application and the country of origin of the dentist.

Individuals who have a record of research and publication in highly ranked journals can avoid PERM. Depending on the level of publication, international acclaim, and accomplishments, PERM can be avoided through the filing of a National Interest Waiver or Outstanding Researcher petition.  The National Interest Waiver is a petition to USCIS to be relived of the PERM requirements because it is in the national interest for the dentist to remain in the U.S.  The dentist has to show that the dentist’s continued presence and work in the U.S. would benefit the nation as a whole.  The Outstanding Researcher has similar criteria.  In these petitions, the dentist must demonstrate that the dentist has risen to the very top of their field.  This is often done through awards, references to published works, and the like. Either the National Interest Waiver or the Outstanding Researcher petition would permit the dentist to skip the PERM process.

Dentists have a plethora of immigration options available to them.  As with any major legal decision, it is always best to contact an experienced attorney familiar with the immigration needs of health-care professionals before going forward. U.S. immigration provides very few second chances, so it is always best to know the pitfalls and hurdles that stand in the way.

For more information or to consult with an immigration lawyer, please contact Ken Gauvey at www.gauveylaw.com