EB-2 NIW Case: Is the Alleged Shortage of Cybersecurity Professionals Sufficient Reason to Grant a National Interest Waiver?
January 23, 20151
Is the Alleged Shortage of Cybersecurity Professionals
Sufficient Reason to Grant a National Interest Waiver?
By Joseph P. Whalen (January 23, 2015)
United States District Judge, James Donato, of the U.S. District Court
for the Northern District of California recently concluded a case on this topic
and answered that question in the negative. Simply put, he said “No” and I
agree. On January 12, 2015, in the case of Abiodun Sodipo v. Ron Rosenberg
et al., USCIS and its AAO were upheld in the decision to deny the visa.
Hereafter, reference to the case will be italicized as such: Sodipo. In this case,
as an EB-2 self-petitioner, Mr. Sodipo established that he is a well-qualified
professional holding a Bachelor of Science degree in Electronic and Electrical
Engineering from Obatemi Awolowo University in Nigeria and a Master of
Science degree in Electrical Engineering from the University of New South
Wales in Australia. The only thing in contention was whether he was
deserving of a National Interest Waiver (NIW).
The petitioner filed for the visa on June 28, 2010, at which time he was
unemployed, allegedly since losing his prior job as some form of non-
immigrant worker,1 as of February 23, 2006. USCIS initially denied the I-140
on January 11, 2011, in a decision issued in the name of the Director of the
Nebraska Service Center. He filed an Appeal which was dismissed on April
2, 2012, however, AAO altered the decision slightly. Whereas the Director
found that the self-petitioner only met the first prong of the three-prong test
for the NIW, AAO found that he met the first and second prongs but not the
third prong. There were also technical deficiencies of little importance here.
It is unclear what his work authorization as “Tech Support” and in “Software Support” were based upon. He may
have been an H1-B or just working as a grad student? Also it is uncertain if he might have qualified for an E-3
(Australian “H-1B-like” professionals’ visa).
January 23, 20152
Any discussion that even mentions the NIW “test” is deserving of a
brief recitation just so that all the readers can be on the same page (literally).
Here goes! The NIW test was devised through the AAO Precedent Decision
Matter of New York State Department of Transportation, 22 I&N Dec. 215
(AAO 1998) (NYSDOT).2 The NYSDOT test consists of the petitioner
submitting evidence to support three findings by the adjudicator. I am
1.) The “position” must be in an area of intrinsic merit; and
2.) The “work product” and/or influence or effect of the job must be
National in Scope and cannot be detrimental to the local,
regional, or national economy, cultural or educational interests,
or welfare of the United States; and
3.) The hiring of “the alien beneficiary” must be demonstrated to
present so great of a National Benefit (in one of the above areas
and it is inherently of intrinsic merit) that it would be
detrimental to the national interest to force the alien to
endure the labor certification process and/or that it would be
contrary to the national interest for the employer to
potentially be deprived the alien’s services if the job had to made
available to U.S. workers. In other words, the petitioner “must
establish that the alien will serve the national interest to a
substantially greater degree than would an available U.S. worker
having the same minimum qualifications.” NYSDOT, at 218.
In 1998, the case was designated as precedent by the INS “Acting Associate Commissioner, Programs” as per the
version published in hardcopy volumes. In reality it was an AAO Decision back when INS still existed. Then for
many years it was posted online and attributed to the BIA. It is now posted online and attributed to AAO as the real
appellate body that rendered the original decision, even if they were still incorrectly calling themselves AAU.
January 23, 20153
In the instant EB-2 visa case, Mr. Sodipo was trying to assert that there
was a “labor shortage” and that that circumstance alone should be enough to
grant him the waiver of the labor certification process and job offer. It’s not!
The primary reason for the labor certification process is to test the level of
the labor pool in a given occupational group to see if it is too low to meet the
needs of this nation’s employers. If the pool is too shallow then the labor
certification is issued. When there is a true shortage, it is actually one of the
easier challenges in immigration benefits law. So, trying to obtain the NIW
by making the argument that there is a labor shortage is essentially the worst
argument that you can make against simply obtaining a labor certification.
IF there actually is a shortage THEN the labor certification is virtually
assured for a qualified beneficiary when requested by a qualified petitioner.
There must be a reason why someone would try for a NIW when there
actually is a labor shortage in that particular occupation and within that visa
category. Often, folks who try for the waiver and are denied simply should
not have filed for it in the first place. Many of those folks misunderstood
what actually was being waived. Some believe that they will get a visa
immediately even though their country has a long line of intending
immigrants ahead of them by several years.
Some people think that “other factors” outside of, or beyond, the
actual eligibility criteria listed in the statute and regulations will assure
approval. They sometimes forget that the NIW is an extra benefit with an
extra burden of proof3 only available to qualified EB-2 visa recipients. Many
myths and misconceptions are perpetuated by sleazy scam artists seeking to
Please see my Brief to AAO about the Burden of Proof found here.
January 23, 20154
separate hopeful immigrants from their money without a care about
eligibility. Some reasons for this last chance effort as a “magic bullet” that
will overcome ineligibility (problems preyed upon by scammers), might be
a. the beneficiary is unqualified for the position;
b. the beneficiary is undesirable, even to desperate employers;
c. the beneficiary is ineligible to obtain any visa for some other
reason that they are ashamed of and trying to hide;
d. the position does not qualify for the visa category;
e. the employer does not qualify as a U.S. employer
f. the employer does not qualify as an employer at all;
g. the employer is debarred from filing a labor certification
application for past violations; or
h. the employer does not have the ability to pay the proffered wage.
Let us turn our attention back to Mr. Sodipo. Taken at face value and
without digging into any evidence--just like the District Court Judge who is
restricted when adjudicating motions for summary judgment--Mr. Sodipo
seems to be well qualified as an engineer. “… Hunter v. Leininger, 15 F.3d
664, 669 (7th Cir. 1994) (“The motion for summary judgment is simply the
procedural vehicle for asking the judge to decide the case on the basis of the
administrative record.”).” See Sodipo at p. 4. The “cybersecurity” label
sounds “sexy” but is still ill-defined and evolving. A red herring maybe? Time
will tell about that possibility.
Mr. Sodipo’s Administrative Appeal was dismissed by AAO as
mentioned above. He then filed a Motion to Reconsider but it was dismissed
on December 28, 2012. Here is an excerpt from that dismissal addressing
deficiencies for the third prong:
January 23, 20155
“At issue is whether this petitioner's contributions in the field are of such unusual
significance that the petitioner merits the special benefit of a national interest waiver, over
and above the visa classification he seeks. By seeking an extra benefit, the petitioner
assumes an extra burden of proof. A petitioner must demonstrate a past history of
achievement with some degree of influence on the field as a whole. Id. at 219, n. 6.
The AAO previously found that the petitioner's work is in an area of intrinsic merit and
that the proposed benefits of his work would be national in scope. However, the AAO
determined that the petitioner had failed to establish that he fulfilled the third eligibility
factor set forth in NYSDOT. The AAO stated:
In this instance, the petitioner has barely documented his past employment, let
alone established that his past contributions set him apart from others in the field to
an extent that would warrant the special, additional benefit of an exemption from
the job offer requirement that, by statute, normally applies to the classification he
On motion, the petitioner asserts that the standard in NYSDOT is inappropriate and that the
AAO erred in relying thereon. ….” At pp. 4-5.
I am not going to get into the question of the applicability of NYSDOT
to this or any other case since currently, it is all we have. I have already
written on the topic of changing the NIW Test or at least the interpretation
of its application in light of the President’s “Executive Action” and the
Secretary’s “Directives” via Memoranda of late November 2014.4 Mr. Mr. Mr.
Sodipo’s second Motion to Reconsider was dismissed on September 19, 2013,
after which he filed the case in the District Court on October 18, 2013.5
“This issue in this matter is whether the petitioner's past record of achievement is at a level
that would justify a waiver of the job offer requirement. Further, academic degrees and
experience are elements that can contribute toward a finding of exceptional ability. See 8
C.F.R. § 204.5(k)(3)(ii)(A) and (B), respectively. Exceptional ability, in tum, is not self-
evident grounds for the national interest waiver. See section 203(b)(2)(A) of the Act. The
plain language of section 203(b)(2)(A) of the Act indicates that aliens of exceptional ability
and advanced degree professionals are subject to the job offer requirement (including alien
employment certification). Moreover, it cannot suffice for the petitioner to state that he
See my brief to AAO here, however, I have been writing about this topic for a few years. Please see here, here,
here, and especially here.
See: Abiodun Sodipo v. Ron Rosenberg et al, No. 13-cv-04856-JD, (N.D. CA January 12, 2015) ORDER
GRANTING USCIS’ Motion for Summary Judgment, Case Dismissed.
January 23, 20156
possesses useful skills, or a "unique background." Special or unusual knowledge or training
does not inherently meet the national interest threshold. The issue of whether similarly-
trained workers are available in the United States is an issue under the jurisdiction of the
Department of Labor. NYSDOT at 221. In all cases the petitioner must demonstrate specific
prior achievements that establish the alien's ability to benefit the national interest. Id. at
219, n.6.” At p. 4.
This case begs the question: “What is a Cybersecurity Professional and
is there a shortage in the United States?” With recent events at Sony,
accusations of foreign agents hacking into U.S. government networks, banks
and credit firms belatedly admitting to being hacked and having customer
data stolen and certain ransom or extortionate payments being made, the
wikileaks adventures and a bunch of other exploitive and sensational “news-
like infotainment” or, “news-ish6 reporting”, perhaps we do need more
cybersecurity. However, do we actually want to bring in foreign nationals to
perform that task? That would be the political hot-potato involved in this
subject matter. I just bring it up to get it out there and say that I am not going
to state on record whether I am pro or con. I will just be neutral, call me
Anyway, back to the point. What is “cybersecurity”? According to the
President, it is a real issue and area of concern. The White House website
includes some broad and basic information starting with the following.
“America’s economic prosperity, national security, and
our individual liberties depend on our commitment to
securing cyberspace and maintaining an open,
interoperable, secure, and reliable Internet. Our
Let it be known that of these three descriptors, only “news-ish” was flagged by spellcheck!!!
January 23, 20157
critical infrastructure continues to be at risk from
threats in cyberspace, and our economy is harmed by
the theft of our intellectual property. Although the
threats are serious and they constantly evolve, I
believe that if we address them effectively, we can
ensure that the Internet remains an engine for
economic growth and a platform for the free exchange
Five Things to Know: The Administration's Priorities
1. Protecting the country's critical infrastructure — our most important information
systems — from cyber threats.
2. Improving our ability to identify and report cyber incidents so that we can respond in
a timely manner.
3. Engaging with international partners to promote internet freedom and build support
for an open, interoperable, secure, and reliable cyberspace.
4. Securing federal networks by setting clear security targets and holding agencies
accountable for meeting those targets.
5. Shaping a cyber-savvy workforce and moving beyond passwords in partnership with
the private sector.
Cyberspace touches nearly every part of our daily lives. It's the broadband networks
beneath us and the wireless signals around us, the local networks in our schools and
hospitals and businesses, and the massive grids that power our nation. It's the
classified military and intelligence networks that keep us safe, and the World Wide
Web that has made us more interconnected than at any time in human history. We
must secure our cyberspace to ensure that we can continue to grow the nation’s
economy and protect our way of life.
January 23, 20158
The Administration is employing the following principles in its approach to strengthen
Network defense first
Protection of privacy and civil liberties
International cooperation and engagement
On February 12, 2013, President Obama signed Executive Order 13636, “Improving
Critical Infrastructure Cybersecurity.” Read more about Executive Order 13636.
The above can be found at: http://www.whitehouse.gov/issues/foreign-
Well, this is an important occupation but is America not stuffed full of
people who can handle this stuff? Do we actually need to import anyone to
handle something so critical to our national defense and security? I am glad
that AAO denied this I-140 and the appeal and the two motions to reconsider
not because the petition was insufficiently supported but because it was
ultimately in the national interest to deny this opportunity for vulnerability.
Summary of the Sodipo Saga
You can follow along from the first AAO Decision through the District Court
Dismissal. The chronological order of the decisions is as follows:
Date of Decision Outcome-Description
January 11, 2011 Initial Denial by Nebraska Service Center
April 2, 2012 Appeal Dismissed by AAO
December 28, 2012 1st Motion to Reconsider Dismissed by AAO
September 19, 2013 2nd Motion to Reconsider Dismissed by AAO
January 12, 2015
Court Order Granting USCIS’ Motion for
Summary Judgment – Case Dismissed
Hyperlinks to all but the first decision are included throughout the essay
along with a few others. Please feel free to contact me:
email@example.com or 716-604-4233 or 716-768-6506
January 23, 20159
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