The Case of the Obstinate Oncologist aka
The Stubborn Surgeon in Search of a
National Interest Waiver
By Joseph P. Whalen ...
The Case of the Obstinate Oncologist aka
The Stubborn Surgeon in Search of a
National Interest Waiver
By Joseph P. Whalen ...
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The Case of the Obstinate Oncologist aka the Stubborn Surgeon in Search of a National Interest Waiver

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Six motions after appeal was dismissed! {So Far!}

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The Case of the Obstinate Oncologist aka the Stubborn Surgeon in Search of a National Interest Waiver

  1. 1. The Case of the Obstinate Oncologist aka The Stubborn Surgeon in Search of a National Interest Waiver By Joseph P. Whalen (June 28, 2014) e-mail: joseph.whalen774@gmail.com Page 1 Today I was checking for newly posted USCIS-AAO non-precedent decisions and found some. I was drawn to one in particular which was the sixth (6th) Motion filed in the case of an oncologist who desires a National Interest Waiver (NIW). That means that there have been eight (8) attempts by this individual to obtain the NIW! I shall include links to seven of those decisions which are posted in the Administrative Decisions section of the USCIS website. They consist of the Appeal Dismissal and the AAO Decisions on the six Motions of various types. The only one missing is the underlying denial issued under the signatory authority of the Director, Texas Service Center.  Dec152011_01B5203.pdf  Jul232012_04B5203.pdf  Dec272012_07B5203.pdf  AUG282013_02B5203.pdf  JAN092014_06B5203.pdf  MAR192014_01B5203.pdf  JUN102014_01B5203.pdf Our persistent practitioner, or obstinate oncologist, or stubborn surgeon may be proceeding under a misguided misperception about the utility of the National Interest Waiver (NIW). The requirements that are actually waived often tend to be somewhat misunderstood. The NIW only waives the need to secure an employer who has filed or is willing to file a PERM application (permanent labor certification application) with the Department of Labor (DOL). Instead, the I-140, Immigrant Petition for Alien Worker may be filed directly by an employer, or “anyone in the alien’s behalf” (presumably an “agent” or attorney or accredited representative (the latter two being eligible to file form G-28)) or by the alien himself or herself as a self-petitioner. It does not waive the need to prove that the alien beneficiary or self- petitioner qualifies as: (1) a member of the professions; holding an advanced degree; or (2) to be of exceptional ability. Once either of the potential underlying EB-2 qualifications is proven, then the test from Matter of New York State Department of Transportation 22 I&N Dec. 215 or (NYSDOT) must be applied. The NYSDOT NIW test entails a showing of three elements as follows:
  2. 2. The Case of the Obstinate Oncologist aka The Stubborn Surgeon in Search of a National Interest Waiver By Joseph P. Whalen (June 28, 2014) e-mail: joseph.whalen774@gmail.com Page 2  The job must be in an occupation with substantial intrinsic merit.  The work of the alien would be national in scope.  The overall results of approval of the petition for this particular beneficiary would be beneficial to the national interests of the U.S. and/or denial of the waiver would have an adverse effect the national interest(s) of the United States. Now that it is clear what gets waived, if the high standards are met; let’s look at some myths about the National Interest Waiver. Some folks believe that since there is no labor certification required that an immigrant visa is immediately available. That is not true. The filing date of the I-140 will become the “priority date” of an approved petition in this visa category. There is still; a waiting period for many prospective immigrants as EB-2s with a waiver. The July 2014 Visa Bulletin shows “cut-off” dates for anyone from Mainland China and India. Those dates are: July 1, 2009, and September 1, 2008, respectively. Numbers are available only for applicants whose priority date is earlier than the cut-off date listed on the Visa Bulletin. Joseph P. Whalen, Independent EB-5 Consultant, Advocate, Trainer & Advisor (716) 604-4233 (cell) OR (716) 768-6506 (land-line) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJo e5 or http://eb5info.com/eb5- advisors/34-silver-surfer DISCLAIMER: Work is performed by a non- attorney independent business consultant. It is the client's responsibility to have any and all non-attorney work products checked by an attorney. I provide highly-individualized training based on consultation with my clients. I serve Regional Center Principals, Developers, potential EB-5 investors, and their counsel. I am not an attorney myself although I have trained numerous attorneys and INS/USCIS adjudicators in complex issues within immigration and nationality law. I do not prepare forms, write business plans, or create economic analyses. I do review them for clients prior to submission and suggest corrections and/or modifications to run by your attorney and investment advisor. NAICS Code: 611430 Professional and Management Development Training

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