sustained EB-2 NIW Case: Streaming Media

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 15, 2024 In Re: 304 70785 
Appeal of Nebraska Service Center Decision 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a provider of cable, Internet, and telephone service, employs the Beneficiary as a vice 
president in charge of a streaming service called I I The Petitioner seeks to classify the 
Beneficiary as a member of the professions holding an advanced degree. See Immigration and 
Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2). The Petitioner also seeks a national 
interest waiver of the job offer requirement that is attached to this EB-2 immigrant classification. See 
section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services (USCIS) may grant this 
discretionary waiver of the required job offer, and thus of a labor certification, when it is in the national 
interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner qualifies for the national interest waiver. The matter is now before us on 
appeal under 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will sustain the appeal. 
I. LAW 
To qualify for a national interest waiver, a petitioner must first show the beneficiary's eligibility 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. Section 203(b )(2)(B)(i) of the Act. Once a 
petitioner demonstrates the beneficiary's EB-2 eligibility, they must then establish that the beneficiary 
merits a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion, 1 grant a national interest waiver if the petitioner demonstrates that: 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh , and D.C. Circuit Courts, and Third 
in an unpublished decision, in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary). 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
We agree with the Director's determination that the Beneficiary qualifies as a member of the 
professions holding an advanced degree. The remaining 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. The Director determined that the Petitioner had not established the 
national importance of the proposed endeavor and had not satisfied the second and third prongs of the 
Dhanasar national interest test. 
The Beneficiat earned a master's degree in business administration in Japan in 2008. The Beneficiaty 
worked for in various positions from 2000 to 2014. In 2014, he became the chief operating 
officer of shortly after its founding. When the Petitioner acquired I I in 2020, the 
Beneficiary began serving in his current position as a vice president. The Beneficiary is currently in 
the United States as an 0-1 nonimmigrant with extraordinaty ability. 
The Beneficiary stated that his proposed endeavor is "to continue to work as a Vice President at [the 
petitioning company] focusing on creating new streaming platform[s] and eco-system." A senior vice 
president to whom the Beneficimy reports stated that the Beneficimy "leads and oversees business 
development for I land "is also responsible for all facets of contract development, negotiation, 
and closeout with over 150 content partners." Other materials in the record provide further details 
about the Beneficiary's position with the petitioning company, and thus about the proposed endeavor. 
A. Substantial Merit and National Importance 
The first Dhanasar prong, substantial merit and national importance, focuses on the specific endeavor 
that the individual 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. Matter ofDhanasar, 26 I&N Dec. at 889. We look for broader implications. An 
endeavor that has significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area, for instance, may well be understood 
to have national importance. Id. at 889-890. 
provides a free, ad-supported streaming television (FAST) service. The record indicates that 
thel !platform is built into several brands of smart televisions, and available as an application on 
some others, reaching more than 20 million monthly active users. I I and its products won national 
industry awards in 2018 and 2020. 
The Director determined that the Petitioner had established the proposed endeavor's substantial merit, 
but not its national importance. The Director had previously stated in a request for evidence (RFE) 
that, while the Petitioner had "described the importance of the I I platform, [it] did not describe 
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the importance of the beneficiary's proposed endeavor of being I ___ vice president." In the 
denial notice, the Director stated: 
[T]he issue here is not the broader implications of [the Beneficiary's] innovations or 
the widespread utilization of these services by consumers, but rather the potential 
prospective impact of [the Beneficiary's] specific proposed work. The record does not 
show that [the benefit from the Beneficiary's] proposed endeavor stands to sufficiently 
extend beyond their local area, company, future clientele, or business partnerships to 
impact the field more broadly at a level commensurate with national importance. 
In this way, the Director appears to acknowledge the national importance ofl Iquestioning only 
the importance of the Beneficiary's role. We agree with the Petitioner's assertion on appeal that the 
Director does not appear to have fully considered the evidence in the record. 
Indust1y executives credit the Beneficiary with responsibility for advantageously positioning _ 
and increasing its availability and visibility, which resulted in securing licenses from well-known 
content providers. this assertion., the record contains copies of contracts and license 
agreements between and other entities, which the Beneficiary had signed on behalf ofl I 
The record indicates that the I I platform is built into several brands of smart televisions, and 
available as an application on some others, reaching more than 20 million monthly active users. 
Supporting 
In letters in the record, industry executives called the Beneficiary "a key figure in creating and 
maintaining" relationships with content providers. I I president stated that "none ofI I 
success, technical development, growth, or output would have been possible without the 
[Beneficiary's] efforts and expertise." I I chief financial officer called the Beneficiary "essential 
to I continued operation and future growth." 
Materials in the record closely tie I I success in wider adoption and resultant economic growth 
to the Beneficiary's ongoing work with the company. In this way, the Petitioner has shown that the 
Beneficiary's role with I I affects millions of viewers in diverse geographic areas nationally, and 
in this way the Petitioner has shown the national importance of the Beneficiary's proposed endeavor. 
B. Well Positioned to Advance the Proposed Endeavor 
The second Dhanasar prong shifts the focus from the proposed endeavor to the individual. To 
dete1mine whether an individual is well positioned to advance the proposed endeavor, we consider 
factors including, but not limited to: their 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. Matter ofDhanasar, 26 I&N Dec. at 890. 
In denying the petition, the Director acknowledged that the Beneficiary has "the necessary skills, 
experience, and track record to continue [his] career," but stated that the Petitioner must also "establish 
that [the Beneficiary has] a track record that supports projections of future work in the endeavor as 
well as the plans and progress to drive the endeavor forward." The Director listed the factors described 
in Dhanasar but did not explain how the evidence relates to those factors. The Director stated, without 
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elaboration: "Here, the petitioner has not, for example, demonstrated that their work has generated 
substantial positive discourse in the field or otherwise provided sufficient evidence to establish that 
their work constitutes a record of success or progress." The Director also stated without examples or 
further explanation that the Petitioner made "several statements that are not supported by evidence." 
We agree with the Petitioner that the Director's decision did not identify any specific deficiencies in 
the Petitioner's evidence, and did not discuss the evidence that the Petitioner submitted with regard to 
the second Dhanasar prong. 
The Director acknowledged the Beneficiary's past experience as al Iexecutive. Ifo1mer 
chief executive officer, now a senior vice president in the petitioning organization, stated that the 
Beneficiary "has been one of the leading and core executives ofl Isince its initial conception," 
and "there is nobody in the world who is better positioned to continue to lead the business development 
of our platform." The same official stated that the Beneficiary "has been the driving force behind 
nearly all of Ipartnerships" with "major smart television brands." 
With respect to "plans and progress to drive the endeavor forward," the record documents the 
Beneficiary's ongoing work to secure content for the platform as well as to broaden its distribution. 
The record also includes plans and forecasts, showing the company's roadmap for moving forward. 
Several individuals in a position to know have attested to the Beneficiary's role in formulating and 
implementing these plans. We conclude that the Petitioner has shown that the Beneficiary is well 
positioned to advance an endeavor that he had already been pursuing for nearly a decade at the time 
the Petitioner filed the petition. 
C. Whether on Balance a Waiver is Beneficial 
The third Dhanasar prong requires a 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, we may evaluate factors such as: whether, in light of the nature of the 
individual's qualifications or the proposed endeavor, it would be impractical either for them to secure 
a job offer or to obtain a labor certification; whether, even assuming that other qualified U.S. workers 
are available, the United States would still benefit from their contributions; and whether the national 
interest in their contributions is sufficiently urgent to warrant forgoing the labor certification process. 
In each case, the factor(s) considered must, taken together, establish 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 ofDhanasar, 26 I&N Dec. at 890-91. 
In the denial notice, the Director did not discuss the merits of the Petitioner's assertions under the third 
Dhanasar prong. Instead, the Director stated that, because the Petitioner had not satisfied the first two 
prongs, the petition could not be approved. As discussed above, we disagree with the Director's 
determination. 
The record establishes that the Beneficiary has been, and continues to be, a key figure in __ 
operations, rather than an interchangeable executive assigned to one of the Petitioner's subsidiaries. 
Given the importance of I I which the Director acknowledged in the denial decision, and the 
Beneficiary's ongoing central role therein, we conclude that, on balance, it would be beneficial to the 
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United States to waive the requirements of a job offer and thus of a labor certification based on the 
specific facts of this individual matter. Matter ofDhanasar, 26 I&N Dec. at 890-91. 
III. CONCLUSION 
The Petitioner has met the requisite three prongs set forth in the Dhanasar analytical framework. We 
conclude 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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