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January 23, 20151
Is the Alleged Shortage of Cybersecurity Professionals
Sufficient Reason to Grant a National Interest Wa...
January 23, 20152
Any discussion that even mentions the NIW “test” is deserving of a
brief recitation just so that all the...
January 23, 20153
In the instant EB-2 visa case, Mr. Sodipo was trying to assert that there
was a “labor shortage” and tha...
January 23, 20154
separate hopeful immigrants from their money without a care about
eligibility. Some reasons for this las...
January 23, 20155
“At issue is whether this petitioner's contributions in the field are of such unusual
significance that ...
January 23, 20156
possesses useful skills, or a "unique background." Special or unusual knowledge or training
does not inh...
January 23, 20157
critical infrastructure continues to be at risk from
threats in cyberspace, and our economy is harmed by...
January 23, 20158
The Administration is employing the following principles in its approach to strengthen
cybersecurity:
 ...
January 23, 20159
About the Author
I tell you what you NEED to hear, not what you WANT to hear!
Joseph P. Whalen
Independe...
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EB-2 NIW Case: Is the Alleged Shortage of Cybersecurity Professionals Sufficient Reason to Grant a National Interest Waiver?

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EB-2 NIW Case: Is the Alleged Shortage of Cybersecurity Professionals Sufficient Reason to Grant a National Interest Waiver? As per USCIS, AAO, and one U.S. District Court, the answer is "No!"

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EB-2 NIW Case: Is the Alleged Shortage of Cybersecurity Professionals Sufficient Reason to Grant a National Interest Waiver?

  1. 1. 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. 1 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).
  2. 2. 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 paraphrasing them: 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. 2 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.
  3. 3. 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 3 Please see my Brief to AAO about the Burden of Proof found here. http://www.slideshare.net/BigJoe5/amicus-brief-to-aao-on-burden-of-proof-signed
  4. 4. 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 that: 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:
  5. 5. 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 seeks. 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 4 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. 5 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.
  6. 6. 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 Switzerland. 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. Cybersecurity “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 6 Let it be known that of these three descriptors, only “news-ish” was flagged by spellcheck!!!
  7. 7. 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 of ideas.” President Obama Five Things to Know: The Administration's Priorities on Cybersecurity 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.
  8. 8. January 23, 20158 The Administration is employing the following principles in its approach to strengthen cybersecurity:  Whole-of-government approach  Network defense first  Protection of privacy and civil liberties  Public-private collaboration  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- policy/cybersecurity 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: joseph.whalen774@gmail.com or 716-604-4233 or 716-768-6506
  9. 9. January 23, 20159 About the Author I tell you what you NEED to hear, not what you WANT to hear! Joseph P. Whalen Independent EB-5 Consultant, EB-5 Advocate, Mentor, Trainer and Advisor 238 Ontario Street | No. 6 | Buffalo, NY 14207 Phone: (716) 604-4233 (cell) or (716) 768-6506 (home, land-line) E-mail: joseph.whalen774@gmail.com web http://www.slideshare.net/BigJoe5 or http://eb5info.com/eb5-advisors/34-silver-surfer DISCLAIMER: The opinions expressed herein are those of the writer only. That is to say that they are opinions of a layperson, non-attorney, non-economist, non- accountant, non-FINRA or SEC registered broker or adviser. Any information or consultation that seems like “incidental investment advice” is intended merely as educational, coaching, and mentoring7. Opinions are based on work experience as an Adjudications Officer within INS and USCIS with particular involvement in the revitalization of USCIS’ EB-5 Program, especially that portion dealing with Regional Centers. This writer wrote the “Unofficial Instructions” on how to apply for Regional Center Designation which later formed the basis for the I-924 Form Instructions. The writer is an outspoken advocate for improved adjudications at USCIS. Lastly, this reviewer is published in various immigration law outlets with well over 100 scholarly articles and opinion pieces widely circulated as well as a published contributing author in three EB-5 Law Books; co-editor in the most recent. I offer training on any topic you want in immigration, nationality, and related law. NAICS Code: 611430 Professional and Management Development Training 2012 NAICS Definition: 611430 Professional and Management Development Training This industry comprises establishments primarily engaged in offering an array of short duration courses and seminars for management and professional development. Training for career development may be provided directly to individuals or through employers' training programs; and courses may be customized or modified to meet the special needs of customers. Instruction may be provided in diverse settings, such as the establishment's or client's training facilities, educational institutions, the workplace, or the home, and through diverse means, such as correspondence, television, the internet, or other electronic and distance- learning methods. The training provided by these establishments may include the use of simulators and simulation methods. That’s My Two-Cents, For Now! 7 See: 15 U.S.C. §80b–2. (a)(11) or go to: http://uscode.house.gov/view.xhtml?req=(title:15%20section:80b- 2%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section80b- 2)&f=treesort&edition=prelim&num=0&jumpTo=true

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