A decade ago, very few people outside of the Information Technology (IT) industry knew what cybersecurity was or even considered it something worth worrying about. Many of us naively believed that with the right passwords, encryption software and firewalls, our data and information would be secure.
In recent years, however, our world has become far more technologically advanced and, as a consequence, technologically dependent. Nearly every occupation and industry has developed some use for artificial intelligence, a big data platform, or web-based application, whether it is banking, retail, pharmaceutical, medical, legal or agricultural. Most organizations that generate significant data store work product/files on servers or in the “cloud”. With the advent of e-commerce and electronic file storage, we can now share photos and documents as well as make financial transactions from our phones, computers, and other smart devices.
While these advances in technology have made our lives easier in many respects, they have also created significant opportunities for individuals and organizations to use the same technology to commit cybercrimes. Although cybersecurity is neither a new or emerging field, there has been something of a collective epiphany in the United States regarding the essential and significant role it plays in our everyday lives, particularly since 2016. Since that time, there have been daily reports of cybersecurity crimes, ranging from denials of service, to hacks and breaches of personal, financial and confidential information, to election meddling. Some of the most noteworthy examples of these damaging crimes include:
In addition to these hacks and breaches, the use of ransomware has dramatically increased as well. Ransomware is a type of cyberattack that encrypts a computer’s files (and makes unavailable to the owner/user of such data), in which the owner/user of the data must pay the attacker a “ransom” often in bitcoin or some other untraceable cryptocurrency to release the files. Since 2013, more than 170 U.S. county-, city- and state-government systems have been attacked using ransomware, including at least 45 law enforcement offices. (https://www.cnn.com/2019/05/10/politics/ransomware-attacks-us-cities/index.html) Most recently, on August 20th, the State of Texas reported that twenty-three (23) towns were struck by a coordinated ransomware attack. (https://www.cnbc.com/2019/08/19/alarm-in-texas-as-23-towns-hit-by-coordinated-ransomware-attack.html)
The prevalence of cybersecurity crimes, and their significant impact, became abundantly clear in the wake of the 2016 Presidential election, which experienced malicious hackings and massive breaches of campaign voter data, including hacking of election systems. (https://cdt.org/issue/internet-architecture/election-cybersecurity/) As our election and voting systems become more data-driven and electronic, our nation becomes more susceptible to such cyberattacks, which have and will continue to impact our voting practices and democratic norms. (https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2019/07/15/the-cybersecurity-202-here-s-an-overlooked-election-cybersecurity-danger-outdated-software/5d2bc0321ad2e552a21d53d4/)
In an effort to protect our financial, personal, medical, and otherwise confidential or personal data, as well as our election systems, we need to continue to attract and employ the services of the most qualified cybersecurity experts from around the world. However, at present, there is a dire shortage of such qualified experts in the United States. On January 10, 2019, Jon Oltsik, Chief Security Officer of Enterprise Strategy Group (ESG) and a world renowned cybersecurity expert wrote:
At the end of each year, ESG conducts a wide-ranging global survey of IT professionals, asking them about challenges, purchasing plans, strategies, etc. As part of this survey, respondents were asked to identify areas where their organization has a problematic shortage of skills.
In 2018-2019, cybersecurity skills topped the list — 53 percent of survey respondents reported a problematic shortage of cybersecurity skills at their organization. IT architecture/planning skills came in second at 38 percent.
The cybersecurity skills shortage is nothing new. Alarmingly, the cybersecurity skills deficit has held the top position in ESG’s annual survey every year... Furthermore, the percentage of organizations reporting a problematic shortage of cybersecurity skills continues to increase.
Now, people like me have been talking about the cybersecurity skills shortage for years, and there are a lot of worthwhile industry and academic programs in place to address this issue. Despite these efforts, however, research from ESG and others indicates that the cybersecurity skills shortage is getting incrementally worse each year. (Emphasis added.) (https://www.csoonline.com/article/3331983/the-cybersecurity-skills-shortage-is-getting-worse.html)
Our technology and data infrastructure need significant work to keep them safe from hacks, breaches and ransomware attacks, but there are simply not enough qualified professionals in the U.S. to fill this need. In this regard, our business leaders and corporations must be open to recruiting and retaining qualified foreign nationals who possess the requisite skills, education and expertise to perform these duties.
In addition to the standard-issue H-1B and L-1B visa classifications, there are a variety of immigration options available to U.S. employers who seek to hire foreign nationals with cybersecurity expertise. One of these options is the O-1A nonimmigrant classification for individuals of extraordinary ability in the sciences or business. This often overlooked nonimmigrant visa classification is available to a foreign national who can demonstrate a level of expertise among a small percentage who have risen to the top of the field. Individuals who have made original, documented contributions to the field, as evidenced by patents and/or publications, and have served as the judge of the work of others (journal reviewers/editors) or in essential/critical capacities can readily qualify for the O-1A visa classification.
Another option available, which leads to permanent resident status in the United States, is the National Interest Waiver (NIW) petition. NIW petitions are typically granted to those who have exceptional ability and whose employment in the United States would greatly benefit our nation. Cybersecurity has proven to be an endeavor that is in the national interest of the United States. Thus, individuals seeking a NIW can establish exceptional ability through documented evidence confirming that they possess at least a Master’s degree in a specialized field of study related to cybersecurity; possess at least ten (10) years of full-time employment experience in the field of cybersecurity; are recognized for their achievements in cybersecurity; and have publications in the field.
It is clear from the daily reports of cybersecurity crimes, that our nation is in dire need of cybersecurity experts who possess the resources and advanced knowledge, skills and experience required to combat these crimes. In this regard, as there is currently a shortage of U.S. workers who possess these qualities, U.S. corporations and governmental agencies should consider thinking “outside the box” as it relates to these immigration options in order to attract and recruit foreign nationals with this expertise.
While there are many immigration options available for both temporary and permanent employment of cybersecurity experts, it is best to plan ahead and consult with an attorney in advance to identify which options best meet the goals of U.S. employer, the foreign national and most importantly, the national interests of our country.
Lin Walker is an Associate and Scott Malyk is a Partner at Meyner and Landis LLP | Counsellors at Law, Newark, New Jersey. (www.meyner.com)
Check out this short video of Jacob Jackson, Project Manager at NRBP member Dewberry, explaining cybersecurity in automation.
Last month, NRBP member Horizon Blue Cross Blue Shield of New Jersey launched the Knock Out Opioid Abuse initiative. This three phase initiative will focus on preventing opioid abuse and creating awareness by organizing town hall events, educating prescribers and parents, and launching a public awareness campaign that will make the town halls and other resources available online and that will include ads on public transit and social media.
Click here to read more from Jonathan Pearson, Executive Director, The Horizon Foundation for NJ.
Recently, the Newark Young Entrepreneurs Academy (Newark YEA!) Class of 2019 participated in the fourth annual Investor Panel at Rutgers Business School. This year's program participants, representing nine middle and high schools in Newark, pitched their business ideas to a panel of investors during a Shark-Tank style competition. Every young entrepreneur who presented was awarded funding that will enable her/him to bring their business to life. Among this year's business were a stationery brand, photography/videography company, cupcake company, and a makeup artistry company.
Newark YEA! is excited to announce that Emmanuel Ogbonnaya, a Senior at Weequahic High School in Newark and founder/owner of the photo/video company King's Likeness, will represent the program at this year's Saunders Scholars competition in Rochester, NY.
This year's young entrepreneurs enjoyed the shared learning experience of the program and Investor's Panel. Below are some of their reflections:
"I was nervous during the presentation but enjoyed the thrill of working through my nerves. It was a great experience that provided me with practice for future presentations” – Emmanuel Ogbonnaya, Founder/Owner, King's Likeness
“My experience in the Investor’s Panel was really eye opening. It gave me a chance to connect with business owners and learn new things. I felt very welcomed and like I was treated like family.” – Rizyah Guy, True Lenses
“The Investor’s Panel, I believe, was so important to the entire program because it’s easy to explain yourself and your business in front of your peers, but when faced with people who can make your dream company into reality and sell yourself within 5 minutes it truly gives you the sensation of being an official entrepreneur. ” – Mirleen Dameus, For Everyone
“The Investor’s Panel was a good experience. I feel that we were well prepared for it." – Khalif Bey, Sweet Melanin Apparel
Newark YEA! students with Emily Manz, Program Manager, and their business mentors.
Guest blog from Wells Fargo.
Fewer than half of investors say they are “more confident” about their ability to save for retirement than they were 10 years ago
The Great Recession’s legacy
March 2019 marked the 10-year anniversary of the Dow Jones Industrial Average’s low point, which is when the U.S. began to climb out of the 2008–09 Great Recession. Investors say they still feel the influence of the recession, according to the first quarter 2019 Wells Fargo/Gallup Investor and Retirement Optimism Index survey. Fewer than half of investors (45 percent) say they feel more confident today about their ability to save for a comfortable retirement than they did during the Great Recession.
Among different age groups, 47 percent of those ages 18–49, 45 percent of those ages 50–64 and 28 percent of those 65 and older are more confident today. In addition, 60 percent predict that over the next 10 years, the U.S. economy will experience another period as bad as the 2008–09 recession.
At the same, 65 percent of investors say they are better at shrugging off market volatility 10 years later; 35 percent say it bothers them just as much as before.
“As we enter year 10 of the economic recovery, not even half of investors feel more confident about their ability to prepare for retirement,” said Wayne Badorf, head of Intermediary Distribution at Wells Fargo Asset Management. “How do we help people feel more confident? It comes down to good advice, services and solutions from a trusted advisor.”
The survey, which was conducted Feb. 11–17, 2019, queried 1,029 U.S. adults with $10,000 or more invested in stocks, bonds or mutual funds.
The survey showed some weakening in investor confidence.
Overall, the Wells Fargo/Gallup Investor and Retirement Optimism Index slipped to 90 in the first quarter, down from 98 in the fourth quarter of 2018.Investors remain generally optimistic, however, about a range of economic conditions and financial expectations:
Meanwhile, the percentage of investors who say it is a good time to invest in the financial markets (64 percent) is roughly the same as the 67 percent in August 2018 and 68 percent in May 2018. Investors are less upbeat about the performance of the stock market (49 percent are optimistic about its 12-month outlook) and about inflation (31 percent are optimistic).
To achieve their investing targets, investors are more likely to say their main investing goal is to maximize growth (61 percent) than to protect from major losses (39 percent).
Majority of Investors Favor ‘the Human Touch’ Over Technology When Seeking Financial Advice
Despite increasing automation in nearly all aspects of the consumer experience, 84 percent of investors say that financial advisors will always be needed and will not be replaced by automated investing technology, according to the survey.
Investors expressed an openness to technology playing a role in their financial planning — just not at the expense of working with an advisor. Only 24 percent say they currently use automated investing technology for their own investing, without the assistance of an advisor. But 56 percent say they would prefer working with a financial advisor who uses automated investing tools on their behalf.
Investors also say they want to communicate with their advisor on a regular basis — on average, three times a year. When asked how they want to communicate, the majority of investors (63 percent) say they prefer a personal connection, including in-person meetings (39 percent), phone calls (22 percent) or video calls (2 percent). Just 20 percent say they prefer to connect through internet chat, and only 18 percent say they want to review their investments on their own, without help from an advisor.
Guest blog by Holly Kaplansky, Owner, Minuteman Press.
Learn more about her business by visiting www.mmpnewark.com
Recently I had the honor of serving on a business panel hosted by Prudential here in Newark. This came about because of the strong relationships I have with my customers…..in this case Rutgers Business School. When the opportunity came up for a speaker at the Newark Anchor Collaborative Vendor Summit, they thought of me. This would never have happened if I didn’t have a strong relationship with the Rutgers Center for Urban Entrepreneurship and Economic Development at Rutgers Business School.
I’m a firm believer that business is built on good relationships. One networking meeting or one cup of coffee doesn’t bring in business. I work at cultivating my network because it pays off. This approach has helped me be successful in a very competitive industry. Here’s how I work on my relationships to help my business.
Be human. Keep in mind that people do business with people, not companies. Relate with people on a personal level by building connections on things you have in common. Plus, getting to know people makes networking more interesting and enjoyable.
Focus on exceptional customer service. The strongest relationships you have are your customers. To build strong relationships be attentive to their needs, exceed their expectations, and show your appreciation. When they have a concern, pick up the phone and talk to them.
Volunteer. Develop the respect of others over time through various activities and experiences. Take a leadership role in a chamber, professional group, nonprofit, or community organization to develop relationships. Allow others to see firsthand your professionalism and how you work with others.
Give as much as you get. Effective relationships in business require reciprocity - not a one-way, half-hearted effort. Offer and deliver help, connect people with each other, or share industry or nonprofit-sector information.
Diversify. Go beyond the people in your immediate circle so that your affiliations grow. Keep in mind that your network can go beyond work relationships.
Spend time on key relationships. Every relationship can be important but spend extra time with your most important customers, influencers and mentors. They can have the greatest impact on your business.
Strong relationships lead to all sorts of opportunities for you and your business – repeat business, referrals, word-of-mouth marketing, potential partners, community leadership, raised awareness, and more. It’s worth the effort and time to build them.
Carrisa Sestito of Rutgers Today interviews Jay Soled, Professor and Director of the Master of Accountancy in Taxation Program at Rutgers Business School about what the changes in the federal tax code mean for New Jersey. As the article notes, "New Jersey is in one of the nation’s higher tax jurisdictions", so the changes could have a major impact on residents and businesses in the state.
Click here to read more.
On February 4, Horizon Blue Cross Blue Shield of New Jersey observed World Cancer Day. While research predicts that as many as 16,000 families in New Jersey may lose a loved one to cancer this year, Horizon is dedicated to doing what they can to raise awareness and increase the odds of survival.
Read more from Thomas Graf, MD, Vice President and Chief Medical Officer, about some of the many ways that Horizon is working to save lives
In mid-2018 Horizon Blue Cross Blue Shield of New Jersey introduced a new system, in partnership with Quartet Health, geared toward providing patients and primary care physicians with seamless and immediate access to in-network mental health service providers. Horizon's Behavioral Health Solutions Director, Suzanne Kunis, notes the importance of increasing access to in-network service providers due to the troubling reality that nearly 60% of the 44 million adults in the U.S. who suffer from mental illness go untreated.
Click here to read more about this innovative new program.
Meyner and Landis LLP has a keen specialization in immigration law and sheds light on the current issues surrounding ICE's newly introduced policies. Read more below by Stacey A. Simon, Esq., Associate and Scott R. Malyk, Esq., Partner.
Anyone who has dealt with the Immigration Service or ICE over the past 2 years would agree that we are living in a fairly contentious pro-enforcement immigration environment.
In looking forward to 2019, our crystal ball tells us to expect more of the same.
The trend of deliberately voluminous and combative Requests for Evidence from USCIS is expected to continue along with a surge in worksite compliance enforcement (I-9 audits) from ICE and the reversal of rules that were once beneficial to certain foreign nationals.
H-1B and L-1 Adjudications
On April 18, 2017 an Executive Order, “Buy American Hire American” (“BAHA”) was signed, and set off a chain reaction that resulted in a palpable difference in the adjudications process of H-1B and L-1 visas.
According to the National Foundation of American Policy, by the fourth quarter of Fiscal Year 2017 (“FY 2017”), almost 70% of H-1B applications filed received Requests for Evidence (RFEs). In fact the number of RFEs received in the fourth quarter of FY2017 alone almost equaled the number of RFEs for the first three quarters combined, with 63,184 RFEs issued in the fourth quarter alone compared to 63,599 in the first, second and third quarters combined. This drastic increase began in July 2017, less than three months after the signing of BAHA.
Within the increase of RFEs, there is an evident national origin disparity. Applications filed on behalf of Indian nationals received RFEs at a higher rate than those of any other country. We believe this disparity is related to higher scrutiny of applications in the Information Technology industry. In the fourth quarter of FY2017, 72% of H-1Bs filed on behalf of Indian nationals received RFEs as compared to 61% from all other countries. More significantly, the denial rate of H-1Bs for Indian nationals rose 42% from the third to fourth quarter of FY 2017 alone, with 16% of H-1B petitions denied in the third quarter and 23.6% of H1B petitions denied in the fourth quarter.
The same trend has been seen in the adjudication of L-1 petitions filed with the USCIS Service Centers in the United States. Denials of L-1B petitions rose from 21.7% to 28.7% in FY 2017, representing a 33% increase, with almost half of petitions filed on behalf of Indian nationals being denied in the final quarter of FY 2017. While the statistics for the full fiscal year of 2018 have not yet been released, it is reported that the denial rate for L-1B petitions in the first quarter of FY 2018 was 30.5%, and 29.2% in the second quarter of FY 2018. The rate of denial for L-1A petitions increased by 67%, from 12.8% to 21.4% in FY 2017.
While the rate of RFEs for L-1 petitions remained fairly consistent, the occurrence of RFEs continued to be inflated.
Aside from BAHA, another driving force behind the increase in RFEs and denials is the loss of the long-standing practice of deference to prior adjudications. On October 23, 2017, that practice was officially rescinded by USCIS wreaking havoc on the adjudications of extensions and amendments of previously approved H-1B and L-1 petitions.
We expect to see similar trends in the year 2019, perhaps not with the same level of increase, but do not necessarily expect these numbers to climb any higher.
ICE Worksite Enforcement Spike
The year 2018 saw a significant increase in compliance enforcement with regard to I-9 regulations and employment-based record keeping.
ICE instituted a two-phase enforcement effort in the year 2018. The first phase was conducted from January 29th through March 30th 2018 and resulted in 2,540 Notices of Inspection (the Notice of Inspection, or “NOI” is the notification given to employers that an I-9 audit is being conducted), and 61 arrests. In July, the second phase began and resulted in 2,738 NOIs being issued, resulting in 32 arrests.
In its totals for FY 2018, ICE reported that a staggering 6,848 worksite investigations were opened by Homeland Security Investigations (“HSI”) in FY 2018, as compared to 1,691 in FY 2017. Similarly, HSI opened 5,981 I-9 audits in FY 2018, as compared to 1,360 in FY 2017; a 400% increase.
Further, FY 2018 saw HSI make 675 criminal arrests and 984 administrative worksite-related arrests, as opposed to FY 2017 in which ICE made 139 criminal arrests and 172 administrative arrests. This is an increase of more than 500% year over year.
Continued targets for I-9 audits will likely include factories/manufacturing companies, food packaging companies, restaurants, construction companies and staffing companies. However, we also expect that in the coming year, random audits will rise and thus the types of companies subjected to I-9 audits will not be limited to those industries listed above.
Once ICE comes knocking on the door, and issues a NOI, a business has 3 business days to produce payroll records and all I-9s. Thus, the best protection for any employer is to maintain and conduct internal audits of I-9 records before a NOI is issued. A company that completes internal audits and I-9 training prior to an audit has the added defense of “good faith” compliance which is a powerful bargaining tool in order to negotiate fines and reduce them significantly if ICE ever does come knocking on the door.
Rescission of Employment Authorization for certain H-4 visa holders
Many Executive Orders signed by the prior administration have been negated in the past 2 years, and one of the next on the proverbial chopping block may be the current eligibility for certain H-4 non-immigrant visa holders to obtain work authorization in the United States.
The current rule, in place since 2015, allows H-4 dependent visa holders to obtain work authorization if an immigration petition (I-140) has been approved for the H-4’s spouse, and there is a quota backlog which does not otherwise allow for the final stage of the green card application to be filed.
The proposed rule (RIN 1514-AC15) to rescind this grant of work authorization was initially expected to be published in February 2018 but was delayed. At this point we continue to wait for the proposed rule to be sent to the Office of Management and Budget (OMB) to be reviewed as a Notice of Proposed Rule Making. There is reason to believe that this proposed rule will become a final rule in the year 2019 in keeping with the spirit of BAHA. However, the current federal government shutdown is preventing this process from moving forward at the moment, so there is at least some hope that this rule may survive the year.
The Supreme Court may have good news in store this year- Kisor v. Wilkie
Because there is always a silver lining, the U.S. Supreme Court will hear arguments this year in a new matter, Kisor v. Wilkie. Kisor is a challenge to two key precedents (Auer v. Robbins and Bowles v. Seminole Rock& Sand Co) which give agencies automatic deference in their reading and interpretation of their own regulations. USCIS often cites Auer in decisions where it applies heightened standards for reviewing the “employer-employee” relationship or creates new evidentiary standards for demonstrating that a position qualifies as a specialty occupation.
If the court were to reverse the ruling in Auer v. Robbins (one of the decisions it is reviewing in Kisor), this will remove USCIS’s ability to consistently change its interpretation of regulations that have been on the books for decades, essentially moving the goal post every time practitioners adjust to the new standards being imposed by USCIS. This could, in effect, force the agency to settle on more reasonable definitions and standards of review.
It should be noted that if the Kisor ruling does overturn Auer, this will not mean that deference will be completely removed from federal agencies, but instead, the Skidmore standard of deference would control. The Skidmore standard allows a federal agencies’ interpretation of its own regulation to be “weighed” based on its ability to persuade, but does not allow for absolute deference, which is what federal agencies currently enjoy. Thus, with this new case, the stage is set for the U.S. Supreme Court to force USCIS to live reasonably within the four corners of the regulations which would negate the existence of many of the RFEs it issues now.
The reason for our collective optimism in the Supreme Court agreeing to hear arguments in Kisor exists in the unlikely prospect that that the Supreme Court has agreed to hear this particular case for the purpose of affirming longstanding precedent. In fact, we know that in their time on the Circuit Courts, both Justices Gorsuch and Kavanaugh have expressed support for reigning in the level of deference afforded to federal agencies and have sought to limit the unbridled power of federal agency interpretation. So our prediction is that in the year 2019, we may very well see the USCIS served with some accountability and oversight if it goes too far adrift of its own regulatory standards.
Given BAHA and its trickle-down effect on U.S. immigration policy, anyone seeking to file an application for an immigration benefit in the year 2019 should approach the process with careful optimism. In the year 2019 the practice of immigration law will continue to present a challenging environment but with the proper professional assistance, any employer can navigate the labyrinth of regulations and policies to achieve success in the process. We remain optimistic – so should you.
 The National Foundation for American Policy is a 501(c)(3), non-profit, non-partisan research organization focused on immigration, international trade and other global issues. NFAP’s research has been cited on over 100 occasions in authoritative sources such as the Wall Street Journal, New York Times and Washington Post. See https://nfap.com/about-us/