sustained EB-2 NIW Case: Mobile Technology

U.S. Citizenship 
and Immigration 
Services 
In Re : 7235080 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 29, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a mobile processor software developer and entrepreneur, seeks second preference 
immigrant classification as a member of the professions holding an advanced degree , 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) . 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer , and thus of the labor certification, would be in the 
national interest. 
On appeal , the Petitioner submits a brief asserting that he is eligible for a national interest waiver under 
the Dhanasar framework. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will sustain the appeal. 
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: 
(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 ofjob 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. 
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 (AAO 2016). 1 Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, 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. 
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 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 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
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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. 3 
II. ANALYSIS 
The Director found that the Petitoner qualifies as a member of the professions holding an advanced 
degree. 4 The sole issue to be determined is 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. 
At the time of filing, the Petitioner was president and chief executive officer (CEO) ofl l D From March 2009 until March 201 7, he served as president and CEO ot1 l in South 
Korea. For the reasons discussed below, we conclude that the Petitioner has established eligibility for 
a national interest waiver under the analytical framework set forth in Dhanasar. 
A. Substantial Merit and National Importance of the Proposed Endeavor 
The Petitioner indicated that he intends to continue his work as an entrepreneur in the field of mobile 
technology "who will be responsible for research and development activities and commercialization 
of technologies as well as general management of [his] company." He explained that his proposed 
endeavor involves developing software "for mobile broadcasting services including but not limited to 
emergency (disaster) broadcasting services." The Petitioner farther stated: 
The project in which I am most interested is commercialization of .... I ___ ====;' 
broadcasting technology such as CBS [cell broadcasting system] Phone ._I __ _. 
Notification Broadcasting Service System and CBS-DMB [digital multimedia 
broadcasting] tandem technology in the U.S., for which I need to perform research and 
development of several technologies in order to adapt to U.S. settings .... As for the 
CBS text alert message broadcast technology that I have developed and already 
commercialized in Korea, a mobile broadcasting service using CBS is not used in the 
U.S., so that more technologies are needed to construct an optimal broadcasting 
environment. I plan to lead solutions for all of those issues in relation to 
commercialization. 
The Director determined that the Petitioner's proposed endeavor has substantial merit, but that he had 
not demonstrated its national importance. On appeal, the Petitioner contends that the benefits of his 
work are "nationwide in their scope, as his field of research and development plays a major role in the 
economy, technology, and security. 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner presented the official academic record for his Master of Engineering degree (1990) from!.__ __ ___, 
University in South Korea and an academic credential evaluation indicating that the aforementioned degree is the foreign 
equivalent of"a master's degree in electrical engineering from a regionally accredited institution in the United States." 
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To satisfy the national importance requirement, the Petitioner must demonstrate the "potential 
prospective impact" of his work. As evidence that the benefit of his proposed work has broader 
implications in the mobile technology field, the Petitioner provided letters of support discussing how 
his undertaking stands to improve mobile multimedia! lbroadcasting services in the United 
States. For instance, I l president of the I I, 
asserted that the Petitioner's proposed endeavor will contribute "to the rearzation r uninterrupted 
reception of broadcast services" and will enable "citizens to receive real-time information and 
actively cope with.__ ________ __.situations." With respect to the Petitioner's proposed 
development of a "novel technology to rtegratelthe existing CBS I " I text alert 
broadcast service into Terrestrial DMB broadcasting,"I lnoted that this technology 
allows "the general public to simultaneously receive text alerts and watch DMB I ~ broadcasting. 
Unlike Internet-based video data transmission, which can overcrowd servers and lead to server 
slowdowns or breakdowns, Terrestrial DMB broadcasting is transmitted on the terrestrial transmission 
frequency range, precluding such problems." 
Furthermore,! l professor of media communication atl I University, stated that 
the Petitioner's endeavor is aimed at "development of technology integrating the ... CBS I I 
I ltext alert broadcast service into terrestrial DMB so that people can receive CBS text alert 
broadcasts and DMB TV broadcasts at the same time." I I further indicated that the Petitioner's 
proposed "development of I systems using I I text alert broadcast technology 
is a sector that creates a strong ripple effect on the economy, in addition to its importance for the 
protection otj I in the U.S. and elsewhere in the world." In addition to the aforementioned 
letters of support, the Petitioner provided an October 2018 article about the U.S . .__ _____ ___. 
I I's test of its nationwide ';:======:;-' system. This article stressed the 
importance of maintaining an effective national I I system "to notify the public as early 
as possible and to keep everyone safe." As the Petitioner has offered documentation showing both the 
substantial merit and national importance of his proposed endeavor, we conclude that he meets the 
first prong of the Dhanasar framework. 
B. Well Positioned to Advance the Proposed Endeavor 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The record includes 
his curriculum vitae, academic records, professional memberships, I lawards from the 
South Korean Government, and U.S. and South Korean patents. The Petitioner also provided his U.S. 
business plan and news articles reporting on his work in South Korea as a mobile communications 
innovator and entrepreneur. In addition, he offered contracts with companies for licensing and 
commercialization of his patented technologies, a March 2018 "Letter of Intent" defining business 
cooperation between his company andl l(a U.S. company that provides carrier-integrated 
mobile commerce solutions), 5 and reference letters describing his expertise in mobile technology and 
his past record of success in that field. 
The Director determined that the Petitioner's evidence was insufficient to meet the second prong of 
the Dhanasar framework. In his appeal brief, the Petitioner argues that the Director did not properly 
consider that his work "has been successfully used nationwide in the Republic of Korea as a national 
5 The record reflects that ~I --~I was later acquired b~._ __ ___.I in December 2018. 
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.__ _________ __. system by the Korean Government." He further contends that the news 
articles, awards, intellectual property documentation, business contracts, and reference letters offer 
sufficient evidence that he satisfies Dhanasar's second prong. As discussed below, we agree with the 
Petitioner that his entrepreneurial and technological accomplishments render him well positioned to 
advance his proposed endeavor. 
Multiple expert references identify specific examples of the Petitioner's success as an entrepreneur and 
how his work has impacted the mobile communications industry. For example.I I indicated that 
the Petitioner "founded I l and commercialized his Cell Broadcastin S stem/Service 
technology, which is now used as a I l broadcast service" in South Korea. explained 
that the Petitioner worked "to facilitate the application of his patented CBS .__ ____ ___,technology 
to Terrestrial DMB. His efforts resulted in the installation of DMB relay networks in subway networks 
in 2006, in collaboration with mobile phone manufacturers and DMB channels." I !further 
maintained that the Petitioner "contributed to the realization of uninterrupted reception of broadcast 
services in subway stations, subways, and cars, etc. across the country ( especially in I land other 
metro olitan areas , enabling citizens to receive real-time I I information and actively cope with 
'---...,,..----.~---~situations." 
In addition.I l professor atl I University and former Head Administrator of the 
I I, noted that after founding.__ ____ __. 
Petitioner "developed the 'Mobile Broadcast Service' using ... 'Cell Broadcasting System,' which was 
an innovative novel technology for broadcasting reception at the time. This technology was 
commercialized and marketed by a major Korean mobile operator in 1999, and in 2002,I lwas 
listed on KOSDAQ" (the South Korean stock market). As corroborating documentation regarding the 
significance of his work, the Petitioner submitted evidence indicating that ten South Korean companies 
have commercialized or licensed his patented technologies. This documentation helps demonstrate that 
the Petitioner is well positioned to advance his proposed endeavor in the United States. 
With respect to future implementation of the Petitioner's technology in the United States,I I 
vice president of business develo ment and board member atl I stated that the Petitioner 
recently "developed the '----.-------.----' broadcast technology enabling the public to watch 
corresponding video news when.__ __ ~occur, and it's just around the comer of commercialization." 
I I further indicated that "the outcome [the Petitioner] has delivered so far has been successfully 
utilized as a national levell I system in Korea and we anticipate it will result in a good 
outcome in the U.S. market as well." Additionall asserted: "We believe [the Petitioner's] 
technology can make a large contribution to,,__ ___ ,,... in the U.S. once it is well researched, developed, 
and commercialized." As noted above, the record includes a March 2018 letter of intent definin 
business cooperation between the Petitioner's company andl ~o develop his' 
system and carry out I I service linked to digital multimedia based ,....... ____ ~ 
broadcast." 
The Petitioner's experience and expertise in his field, record of success as a mobile processor software 
developer and entrepreneur, patented technological innovations, progress in his industry, and the level 
of commercial interest in his work position him well to advance his proposed endeavor. Accordingly, 
the record demonstrates that the Petitioner satisfies the second prong of the Dhanasar framework. 
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C. Balancing Factors to Determine Waiver's Benefit to the United States 
As explained above, 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. As an entrepreneur specializing in mobile processor software development, the Petitioner 
possesses considerable experience and expertise in the mobile communications industry. The record also 
demonstrates the widespread benefits associated with research progress in I I broadcasting 
technology. In addition, the Petitioner has documented his past successes in developing new mobile 
technologies and commercializing these innovations. Based on the Petitioner's track record of successful 
research and development work and the potential of that work to advance US.I I and 
technological interests, we find that he offers contributions of such value that, on balance, they would 
benefit the United States even assuming that other qualified U.S. workers are available. 
III. CONCLUSION 
The Petitioner has met the requisite three prongs set forth in the Dhanasar analytical framework. We 
find that he has established he is eligible for and otherwise merits a national interest waiver as a matter 
of discretion. 
ORDER: The appeal is sustained. 
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