dismissed EB-1A Case: Mountaineering

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-K-S-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JULY 9, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a trek and expedition guide to mountain climbers, seeks classification as an individual 
of extraordinary ability. This first preference classification makes immigrant visa available to those 
who can demonstrate their extraordinary ability through sustained national or international acclaim 
and whose achievements have been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the Petitioner's Form 1-140, Immigrant Petition 
Alien Worker. We subsequently dismissed the Petitioner's appeal. 1 
The matter is now before us on a motion to reconsider and a motion to reopen. Upon review, we will 
deny the motions. 
I. LAW 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth two options for satisfying this classification's initial evidence 
requirements. First, a petitioner can demonstrate a one-time achievement (that is, a major, 
internationally recognized award). If that petitioner does not submit this evidence, then he or she must 
provide documentation that meets at least three of the ten categories listed at 8 C.F.R. 
§ 204.5(h)(3)(i) - (x) (including items such as awards, published material in certain media, and 
scholarly articles). The regulation at 8 C.F.R. § 204.5(h)(4) allows a petitioner to submit comparable 
evidence if he or she is able to demonstrate that the standards at 8 C.F.R. § 204.5(h)(3)(i)-(x) do not 
readily apply to the individual's occupation. Where a petitioner submits qualifying evidence under at 
least three criteria, we will then determine whether the totality of the record shows sustained national 
or international acclaim and demonstrates that the individual is among the small percentage at the very 
top of the field of endeavor. 2 
1 See Matter of N-K-S-, ID# 1646720 (AAO Oct. 23, 2018). 
2 See Kazarian v. users, 596 F .3d 1115 (9th Cir. 2010) ( discussing a two-part review where the documentation is first 
counted and then, if fulfilling the required number of criteria, considered in the context of a final merits determination); 
see also Visinscaia v. Beers. 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. users, 772 F. Supp. 2d 1339 (W.D. Wash. 
Matter of N-K-S-
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence of new facts. The requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. BACKGROUND 
The Director denied the pet1t10n, finding that the Petitioner had not satisfied any of the initial 
evidentiary criteria, of which he must meet at least three. On motion, the Director affirmed his decision 
but found that the Petitioner fulfilled one criterion, leading or critical role under 8 C.F.R. 
§ 204.5(h)(3)(viii). On appeal, we withdrew the Director's determination regarding the leading or 
critical role criterion and concluded that the Petitioner did not meet any of the criteria, as well as the 
requirements for comparable evidence under 8 C.F.R. § 204.5(h)(4). 
In the Petitioner's motion to reconsider, he argues that he submitted evidence showing that he satisfied 
at least three criteria. In his motion to reopen, the Petitioner presents additional documentation relating 
to three of the criteria. 
III. ANALYSIS 
At the outset, the Petitioner did not include the required statement about whether or not the validity of 
the unfavorable decision has been, or is, the subject of any judicial proceeding. 8 C.F.R. 
§ 103.5(a)(l)(iii)(C). A motion that does not meet applicable requirements shall be dismissed. 
8 C.F.R. § 103.5(a)(4). Moreover, for the reasons discussed below, the Petitioner's motion to 
reconsider does not establish that we erred in our prior decision. Further, the new evidence submitted 
in support of the motion to reopen does not demonstrate that the Petitioner satisfied any criteria. 
A. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). The Petitioner contends that he meets four criteria, as 
well as an additional criterion through the submission of comparable evidence. He does not, however, 
specifically argue that our decision was based on an incorrect application of law or policy. Instead, 
he makes assertions of eligibility under the respective evidentiary criteria without addressing our 
decision except for our finding as it relates to the published material criterion. Disagreeing with our 
conclusions without establishing that we erred as a matter of law or pointing to policy that contradict 
our analysis of the evidence is not a ground to reconsider our decision. See Matter of O-S-G-, 24 I&N 
Dec. 56, 58 (BIA 2006) (finding that a motion to reconsider is not a process by which the party may 
2011 ). This two-step analysis is consistent with our holding that the "truth is to be determined not by the quantity of 
evidence alone but by its quality," as well as the principle that we examine "each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the 
fact to be proven is probably true." Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010). 
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Matter of N-K-S-
submit, in essence, the same brief and seek reconsideration by generally alleging error in the prior 
decision). Here, we will address below the Petitioner's references to the published material criterion, 
along with his argument for comparable evidence, and discuss his new claims of eligibility and 
submission of new evidence under the motion to reopen section. 
Regarding the published material criterion, the Petitioner references an article published in the Golden 
Transcript and asserts that we "referred only as the participant of the event however the Event was 
organized acknowledge the Mountaineering and the achievement/struggle" (note: errors in the 
original text have not been changed). The record reflects that we found that although the article was 
about his work in the field, he did not demonstrate that the Golden Transcript constituted a 
professional or major trade publication or major medium. See 8 C.F.R. § 204.5(h)(3)(iii). 3 Here, the 
Petitioner did not address or dispute our finding or establish that the Golden Transcript is a 
professional or major trade or other major medium. 
As it relates to comparable evidence, the Petitioner contends that "we discuss on two more criteria that 
needs to be evaluated through comparative evidence." However, the Petitioner only makes arguments 
relating to one criterion, awards. Notwithstanding, the Petitioner asserts that "the praises to [him] 
should be seen as award[s] he achieved from his hard work, skills and knowledge in the field." In our 
decision, we thoroughly analyzed and discussed his arguments relating to comparable evidence and 
determined that he did not demonstrate that the regulatory criteria do not readily apply to his 
occupation and that the evidence in the record is comparable. See 8 C.F.R. § 204.5(h)(4). 4 Although 
he continues to make claims regarding the inapplicability of "many of the Regulatory criteria" and 
"the Historic Lack of Acknowledgement Sherpa Achievements," he did not substantiate his assertions 
through documentary evidence, nor did he show how we previously erred or incorrectly applied 
policy. 5 Here, the Petitioner did not demonstrate that the criteria do not readily apply to Sherpas and 
mountain guides and why he cannot offer evidence that meets at least three of the criteria. 
Furthermore, the Petitioner claimed to meet four criteria without the submission of comparable 
evidence, including memberships under 8 C.F.R. § 204.5(h)(3)(ii), published material under 8 C.F.R. 
§ 204.5(h)(3)(iii), original contributions under 8 C.F.R. § 204.5(h)(3)(v), and leading or critical role 
under 8 C.F.R. § 204.5(h)(3)(viii). Moreover, the Petitioner did not establish that Sherpas or mountain 
guides cannot present evidence relating to the other criteria, such as awards under 8 C.F.R. 
§ 204.5(h)(3)(i), judging under 8 C.F.R. § 204.5(h)(3)(iv), and high salary under 8 C.F.R. 
§ 204.5(h)(3)(ix). The fact that the Petitioner did not provide sufficient documentation that fulfills at 
least three is not evidence that an individual could not do so or that it does not readily apply. In 
addition, the Petitioner did not show how receiving "praises" is truly comparable to receiving lesser 
3 See also USCIS Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form 1-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJ 1-14 7 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (instructing that evidence of published material in 
professional or major trade publications or in other major media publications about the individual should establish that the 
circulation ( on-line or in print) is high compared to other circulation statistics and show the intended audience of the 
publication). 
4 See also USCTS Policy Memorandum PM-602-0005.1, supra, at 12 (stating that a petitioner should explain why he has 
not submitted evidence that would satisfy at least three of the criteria set forth in 8 C.F.R. § 204.5(h)(3), as well as why 
the evidence he has included is "comparable" to that required under 8 C.F.R. § 204.5(h)(3)). 
5 In fact, we pointed out in our decision that the Petitioner undermined his own argument when he claimed comparable 
evidence for published material and submitted a New York Times article about Sherpas, confirming that published material 
does readily apply to his occupation. 
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Matter of N-K-S-
nationally or internationally recognized prizes or awards for excellence in the field. As such, the 
Petitioner did not establish that he qualifies for an additional criterion, as well as other criteria, through 
the submission of comparable evidence. 
For the reasons discussed above, the Petitioner has not demonstrated that our appellate decision was 
incorrect. We conducted a de novo review of the record on appeal, thoroughly analyzed the evidence, 
and ultimately concluded that the Petitioner did not satisfy at least three regulatory criteria. Here, the 
Petitioner did not show how we erred or misapplied law or policy. Accordingly, the Petitioner did not 
meet the requirements for a motion to reconsider. 
B. Motion to Reopen 
~viously determined that the Petitioner's membership with the 
L__J did not satisfv the membershio criterion. On motion the Petitioner indicates his membershio 
with the 
I and I I He submits a letter froml 
c==.; lchief administrative officer forl l who confirmed the Petitioner's membyshi~p-l w-1-·th ..... 
L__J. In addition, he presents a letter froml I general secretary for who 
claimed thatl hs an exclusive association that limits its membership to only those elite 
mountaineers who have been successful in summiting the highest mountain in the world." We note 
that the Petitioner does not offer on motion any additional documentation regarding I I and 
I I Regardless, the letters do not demonstrate that the associations require outstanding 
achievements for membership, as judged by recognized national or international experts in the field 
of expertise. See 8 C.F.R. § 204.5(h)(3)(ii). 6 Moreover, whilec=J limits membership to those who 
have summited Mt. Everest, the Petitioner did not show that I I membership is judged by 
recognized national or international experts consistent with this regulatory criterion. 
In addition, we found that his recommendation letters did not establish that he made original 
contributions of major significance in the field. See 8 C.F.R. § 204.5(h)(3)(v). 7 On motion, the 
Petitioner discusses letters that have already been submitted, reviewed, and considered; accordingly, 
we will not address them in this proceeding. The Petitioner presents three additional letters reflecting 
~ instances where the Petitioner assisted and rescued climbers. For example,! I 
L__J indicated an occasion when the Petitioner "worked very hard to rescue the injured and bring 
back bodies" as a result of a helicopter crash. Moreover,! I recounted a time when the 
Petitioner "stage[ d] and execute d a hi h-altitude rescue from the summit of Mt. Everest that would 
have resulted in the death of an I I climber, if [the Petitioner] had not 
succeeded." Further, .__ ____ _.described the Petitioner's "expertise in the rescue and body 
recovery efforts after the 2014 avalanche." As discussed in our appellate decision, while we recognize 
6 See also USCIS Policy Memorandum PM-602-0005.1, supra, at 6-7 (providing an example of admission to membership 
in the National Academy of Sciences as a Foreign Associate that requires individuals to be nominated by an academy 
member, and membership is ultimately granted based upon recognition of the individual's distinguished achievements in 
original research). 
7 See also USCTS Policy Memorandum PM 602-0005.1, supra, at 7 (providing an example that although work may be 
"original," this fact alone is not sufficient to establish that the work is of major significance). 
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Matter of N-K-S-
the personal impact he has had in rescuing others on Mt. Everest, he did not demonstrate that his 
contributions rise to a level of major significance in the overall field. 8 
As it relates fo the )eadjng o: critical role criterion, we determined that the Petitioner's submission of 
a letter from._ ______ _.J the co-owner and program director for 
I I demonstrated that he performed in a leadership role or wa~s_c_r-it-ic_a_l_t_o-th-e-su_c_c_e_s_s_o_f __ -th-e~ 
organization. See 8 C.F-f. § 20(5(h)(3)(viii). 9 Moreover, we found that the Petitioner did not provide 
objective evidence from website to corroborate its claims of a distinguished reputation. 10 On 
motion, he presents another letter froml I who indicated that the Petitioner "has a very 
unique skill set that includes strong interpersonal skills working with guides and clients, high altiµ.ide.., 
adaptation, and the technical climbing techniques necessary for this demanding job." Althoughl_J 
I praised the Petitioner for his skills, he did not establish that those skills resulted in a leading 
role or contributed to the overall success ofc=J Here, I I updated letter does not 
contain specif\c detailed information refl~ the nature of the Petitioner's role withD 11 In 
addition, whil~ I claimed thatL_j "is one of the largest mountain guide services in the 
world," the Petitioner did not offer any supporting evidence showingDs distinguished reputation. 
For the reasons discussed above, the new documentation submitted on motion does not overcome our 
original decision, finding that the Petitioner did not satisfy at least three of the evidentiary criteria. 
IV. CONCLUSION 
The Petitioner has not shown that our previous decision was incorrect based on the record before us, 
nor does his new evidence on motion demonstrate that he has fulfilled at least three of the evidentiary 
criteria. 12 In visa petition 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; Matter of Skirball Cultural Ctr., 
25 I&N Dec. 799, 806 (AAO 2012). Here, that burden has not been met 
8 See Visinscaia, 4 F. Supp. 3d at 134-35 (upholding a finding that a ballroom dancer had not met this criterion because 
she did not corroborate her impact in the field as a whole). 
9 See USCIS Policy Memorandum PM-602-0005 .1, supra, at 10 (indicating that the evidence must either establish that the 
individual is or was a leader or that he contributed in a way that is of significant importance to the outcome of the 
organization or establishment's activities). 
10 Id. at 10-11 (defining Merriam-Webster's Dictiona1y definition of"distinguished" as marked by eminence, distinction. 
or excellence). 
11 Id. at 10 (stating that letters from individuals with personal knowledge of the significance of a petitioner's leading or 
critical role can be particularly helpful in making this determination as long as the letters contain detailed and probative 
information that specifically addresses how the role for the organization or establishment was leading or critical). 
12 As the Petitioner has not submitted the required initial evidence of either a one-time achievement or documents that 
meet at least three of the ten criteria, we need not provide the type of final merits determination referenced in Kazarian, 
596 F.3d at 1119-20. Moreover, we need not consider whether he seeks to enter the United States to continue work in his 
area of extraordinary ability under section 203(b )(1 )(A)(ii) of the Act, and whether his entrance will substantially benefit 
prospectively the United States under section 203(b)(l)(A)(iii) of the Act. 
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Matter of N-K-S-
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Matter of N-K-S-, ID# 3463758 (AAO July 9, 2019) 
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