remanded EB-2 NIW Case: Communications And Media

U.S. Citizenship 
and Immigration 
Services 
MATTER OF Y-D-J-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 5, 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a communications and media executive, seeks second preference immigrant 
classification as an individual of exceptional ability, as well as a national interest waiver of the job 
offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). After a petitioner has established eligibility for EB-2 
classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, 
grant a national interest waiver if the petitioner demonstrates: ( 1) that the foreign national' s proposed 
endeavor has both substantial merit and national importance; (2) that the foreign national is well 
positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. Matter of 
Dhanasar, 26 l&N Dec. 884 (AAO 2016). 
The Acting Director of the Nebraska Service Center denied the Form 1-140, Immigrant Petition for 
Alien Worker, finding that the Petitioner had not established he qualified for classification as an 
individual of exceptional ability. 
On appeal, the Petitioner submits additional evidence and contends that he meets the regulatory 
criteria for classification as an individual of exceptional ability. In addition, he asserts that he is 
eligible for a national interest waiver. 
Upon de nova review, we will remand the matter to the Director for further action and consideration. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences, arts, or business. Because this classification 
requires that the individual's services be sought by a U.S. employer, a separate showing is required 
to establish that a waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
Matter ~f Y-D-J-
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who 
are members of the professions holding advanced degrees or their equivalent 
or who because of their exceptional ability in the sciences, arts, or business, 
will substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in 
the sciences, arts, professions, or business are sought by an employer in the 
United States. 
(B) Waiver of job offer -
(i) National interest waiver. ... [T]he Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the sciences, arts, 
professions, or business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that 
ordinarily encountered in the sciences, arts, or business." In order to demonstrate exceptional 
ability, a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
Furthermore, while neither the statute nor the pertinent regulations define the term "national 
interest," we set forth a framework for adjudicating national interest waiver petitions in the 
precedent decision Matter of Dhanasar, 26 I&N Dec. 884.1 Dhanasar states that after EB-2 
eligibility has been established, USCIS may, as a matter of discretion, grant a national interest 
waiver when the below prongs are met. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of 
areas such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors 
including, but not limited to: the individual's education, skills, knowledge and record of success in 
related or similar efforts; a model or plan for future activities; any progress towards achieving the 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD07). 
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Matter ofY-D-J-
proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities 
or individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In 
performing this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the 
foreign national's qualifications or the proposed endeavor, it would be impractical either for the 
foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, 
even assuming that other qualified U.S. workers are available, the United States would still benefit 
from the foreign national ' s contributions; and whether the national interest in the foreign national's 
contributions is sufficiently urgent to warrant forgoing the labor certification process. In each case, 
the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification.2 
II. ANALYSIS 
The Petitioner seeks to continue working as an executive in the internet protocol streaming media 
industry. He asserts that he meets at least three of the exceptional ability evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii). The Director determined that the Petitioner's certificate from the 
Executive Development Program satisfied the regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), 
which requires evidence of "a degree, diploma, certificate, or similar award from a college, university, 
school, or other institution of learning relating to the area of exceptional ability." In addition, the 
Director found that the Petitioner ' s membership constituted 
"[ e ]vidence of membership in professional associations" and therefore he satisfied the criterion at 8 
C.F.R. § 204.5(k)(3)(ii)(E). The record supports the Director's findings relating to these two criteria. 
On appeal , the Petitioner maintains that he also meets the regulatory criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) which requires "[e]vidence in the form of letter(s) from current or former 
employer(s) showing that the alien has at least ten years of full-time experience in the occupation for 
which he or she is being sought." For the reasons discussed below, the record supports a finding that 
the Petitioner satisfies this third criterion. 
As evidence of his ten years of full-time experience as a communications and media executive, the 
Petitioner presented a January 2018 employment verification letter from .3 This 
letter provides a detailed description of his work experience at including his 
employment dates and the executive leadership duties he performed. For example , from May 2003 
until February 2006 , the Petitioner served as "TV Portal Team Leader" for the company's television 
service "directing, supervising and managing approximately 50 or more team staff." The 
Petitioner's work involved strategic planning and forming partnership agreements with Samsung and 
2 See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
3 The letter explains that in 2014 merged with "becoming one entity with the 
name of 
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Matter ofY-D-J-
LG to launch Smart TV and Digital TV Portal services. In addition, as (a subsidiary 
of team leader from March 2006 until Novem er 2007, the Petitioner 
oversaw the launch of this subsidiary's business content for video on demand, audio on demand, and 
game markets. He also was responsible for organizing the Internet Protocol Television 
(IPTV) Consortium with 13 participating companies and "serving as the general director of the IPTV 
demonstration business project." 
Furthermore , the Petitioner served as Convergence Business Team Leader tasked with integrating 
IPTV and mobile services from November 2007 until March 2014. In this 
role, he served as "the general director for the Smart TV businesses/services which 
and had launched jointly." Additionally, he "was responsible for the 
entire strategic planning for Finally, from April 2011 until May 2015, the 
Petitioner concurrently served as Chief Executive Officer (CEO) of and Convergence 
Business Team Leader. As CEO, he "directed planning and designing of the entire 
service platform for 
The Director found that the Petitioner had not met the requirements of the regulatory criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(B), stating: 
While the [Petitioner] may have 10 (ten) years of experience with the 
telecommunications and media .field, the evidence must establish [he] has at least I 0 
(ten) years of experience in the occupation .. . sought. The evidence fails to show that 
the [Petitioner] has at least 10 (ten) years [of] experience as a Communications and 
Media Executive or as an Executive in a similarly held profession. 
In his appeal brief, the Petitioner contends that the employment verification letter from 
shows that the he has been engaged in an executive capacity at 
for more than ten years. Based on the job duties and responsibilities discussed in the aforementioned 
letter, we agree with the Petitioner that his evidence is sufficient to document that he has at least ten 
years of full-time experience as a communications and media executive. Accordingly, he meets the 
regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), and the Director's finding on this issue is 
withdrawn. The record adequately demonstrates that the Petitioner meets at least three of the six 
regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii) and that he has achieved the level of expertise required 
for exceptional ability classification. 
However , with respect to the Petitioner 's eligibility for a national interest waiver, the Director's 
decision did not analyze whether he meets the requisite three prongs set forth in the Dhanasar 
analytical framework. 
III. CONCLUSION 
We are therefore remanding the petition for the Director to apply the Dhanasar analytical framework 
to make a determination as to whether the Petitioner has established that a waiver of the requirement 
of a job offer, and thus a labor certification , would be in the national interest. 
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Matter ofY-D-J-
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing opinion and for the entry of a new decision 
which, if adverse, shall be certified to us for review. 
Cite as Matter ofY-D-J-, ID# 1726453 (AAO Nov. 5, 2018) 
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