dismissed EB-1A Case: Operational Safety

U.S. Citizenship 
and In1n1igration 
Services 
MATTER OF M-S-W-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 14, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner seeks classification as an individual of extraordinary ability in operational safety. 
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 
Petitioner Alien Worker, finding that he did not satisfy the initial evidentiary criteria applicable to 
individuals of extraordinary ability, either a major, internationally recognized award or at least three 
of ten possible forms of documentation. We dismissed his subsequent appeal concluding that 
although the Petitioner met three criteria, he did not establish sustained national or international 
acclaim, that he is among the small percentage at the very top of the field of endeavor, and that his 
achievements have been recognized in the field through extensive documentation. 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). 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 
1 See Matter of M-S-W-, ID# 1409681 (AAO June 19, 2018). 
Matter ofM-S-W-
acclaim and demonstrates that the individual is among the small percentage at the very top of the 
field of endeavor. 2 
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. 3 
11. BACKGROUND 
In dismissing the appeal, we determined that the Petitioner satisfied three of the initial evidentiary 
criteria, judging under 8 C.F.R. § 204.5(h)(3)(iv), scholarly articles under 8 C.F.R. 
§ 204.5(h)(3)(vi), and leading or critical role under 8 C.F.R. § 204.5(h)(3)(viii). Moreover, we 
conducted a final merits determination in which we reviewed the record as a whole, including the 
evidence the Petitioner submitted under other claimed criteria. 4 Based on this review, we found that 
the Petitioner did not establish his sustained national or international acclaim, that he is among the 
small percentage at the very top of the field of endeavor, and that his achievements have been 
recognized in the field through extensive documentation. 
In the Petitioner's motion to reconsider, he argues that we heightened the evidentiary standard and 
did not address much of his documentation. In his motion to reopen, the Petitioner presents 
additional documentation relating to his written work. 5 
2 See Kazarian v. USCIS, 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. USCIS, 772 F. Supp. 2d 1339 (W.D. 
Wash. 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 ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
3 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 and, if so, the court, nature, date, and status or result of the proceeding." 
8 C.F.R. § 103.5(a)(l)(iii). 
4 The other claimed criteria were: awards under the regulation at 8 C.F.R. § 204.5(h)(3)(i), memberships under the 
regulation at 8 C.F.R. § 204.5(h)(3)(ii), published material under the regulation at 8 C.F.R. § 204.5(h)(3)(iii), and 
original contributions under the regulation at 8 C.F .R. § 204. 5(h)(3)(v). 
5 Although the Petitioner references "EXHIBITS A and B," "EXHIBIT C," "EXHIBIT E," and "EXHIBITS A and H" in 
his brief, the record reflects that he submitted only one exhibit on motion. Furthermore, the Petitioner does not 
specifically identify the exhibits. 
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Matter ofM-S-W-
III. ANALYSIS 
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). In addition, a motion to reconsider must be 
supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or 
statement of U.S. Citizenship and Immigration Services or Department of Homeland Security. 
The Petitioner contends that we impermissibly heightened the final merits determination by 
requiring that additional criteria must be met beyond the minimum three. Where a petitioner 
satisfies at least three categories of evidence, we consider the totality of the material provided in a 
final merits determination and assess whether 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. See Kazarian v. USCIS, 596 at 1115. 6 Here, we evaluated the entirety of the 
record in the final merits determination. The decision does not reflect, as alleged by the Petitioner, 
that we required him to meet more than three criteria. In fact, the record shows that we found that 
both the evidence relating to the judging, scholarly articles, and leading or critical role criteria and 
the documentation regarding the other claimed criteria did not establish sustained national or 
international acclaim and indicate that he is one of the small percentage at the very top of the field. 
Furthermore, although we determined that he fulfilled three criteria, the Petitioner argues that he also 
satisfied three other criteria. 7 As indicated above, we evaluated the evidence in the aggregate and 
concluded that the record as a whole did not establish his eligibility for classification as an individual 
of extraordinary ability. Therefore, even if the Petitioner met more than three criteria, which he did 
not, he did not show that the totality of his evidence was consistent with sustained national or 
international acclaim for this highly restrictive classification. 
Regardless, the Petitioner makes assertions about our decision relating to his eligibility for the other 
three criteria that is not supported by the record. For instance, the Petitioner claims that we 
determined "that awards granted to Ph.D. level students cannot be indicative of extraordinary 
ability." On the contrary, we reviewed his submitted evidence and found that the Petitioner did not 
demonstrate that the field recognizes his academic degrees, academic awards, and scholarships as 
national or international awards for excellence. In addition, the Petitioner did not establish that his 
6 See also users Policy Memorandum PM 602-0005.1, Evaluation of Evidence Submitted with Certain Form I-140 
Petitions; Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 4 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTML/PolicyManual.html (stating that users officers should then evaluate the 
evidence together when considering the petition in its entirety to determine if the petitioner has established by a 
preponderance of the evidence the high level of expertise of the immigrant classification). 
7 The Petitioner concedes on motion that he does not meet the previously claimed published material criterion. 
3 
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Matter ofM-S-W-
awards based on his student status reflected that he is one of that small percentage who has risen to 
the very top of the overall field rather than limited to other students aspiring to be in the field. 
Moreover, the Petitioner makes numerous arguments that mirror his previously submitted appellate 
brief referring to the Director's original decision. 8 For example, as it relates to the Petitioner's 
memberships, he references the "abuse of discretion to fail to consider relevant evidence" and then 
indicates that "[t]here is no mention in the [Director's request for evidence] that [he] has served as a 
member of these prestigious associations." Here, the Petitioner's contentions pertain to the 
Director's decision in his appellate brief, and therefore do not show how our dismissal of his appeal 
was incorrect as a matter of law or policy. Further, the Petitioner did not show how we erred in 
determining that his membership evidence did not reflect that he has sustained national or 
international acclaim. 
In addition, the Petitioner disputes our findings without directing to a particular law, regulation, or 
policy that specifically shows that we erred in our determinations. Instead, the Petitioner makes 
general, unsupported assertions. For instance, the Petitioner contends that he made original 
contributions of major significance in the field. However, disagreeing with our conclusions without 
establishing that we erred as a matter of law or policy or pointing to precedent decisions that 
contradict our analysis of the evidence is not a ground to reconsider our decision. Moreover, the 
Petitioner did not demonstrate that his contributions garnered attention at a level among that small 
percentage at the very top of the field of endeavor. 
Similarly, the Petitioner claims that our determination that he demonstrated only one manuscript 
review "is incorrect as a matter of fact" since he "performed multiple manuscript reviews." The 
record reflects that the Petitioner provided three emails requesting him to review manuscripts; 
however, he did not show that he actually performed the reviews. Likewise, the Petitioner submitted 
evidence requesting him to be a "potential content expert reviewer of a module" for 
and thanking him for "considering joining quest to help [its] group of 
organizations branch out into the Telemedicine market" as a board member and advisory committee 
member. Without evidence establishing that he actually completed the reviews or performed in a 
judging capacity, he did not show that he performed additional acts of judging. Nevertheless, even if 
the Petitioner conducted the additional reviews and served on the advisory committee, he did not 
offer sufficient evidence that sets him apart from others in his field placing him among the small 
percentage at the very top of his field and reflecting sustained national or international acclaim. 
Further, regarding scholarly articles, the Petitioner contends that he provided "extensive data that the 
articles were reviewed by numerous readers in 61 countries worldwide, 88 institutions, downloaded 
499 times and referred to or cited by online publications 83 times." The record contains screenshots 
regarding downloads of the Petitioner 's work on the Internet. In general, downloads may indicate 
that others have read his work but do not necessarily establish that his work has greatly impacted or 
influenced others in his field. Here, the Petitioner did not show the significance of the downloaded 
8 The Petitioner also cites to "EXHIB ITS A and B," which is the same reference in his appellate brief. 
4 
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Matter ofM-S-W-
statistics to establish that he has attained a career of acclaimed work in the field. Moreover, the 
Petitioner did not demonstrate that his publication history, approximately 10 articles primarily in 
2011 and 2016, has been recognized as being one of the small percentage at the very top of his field 
and having sustained national or international acclaim. 
In addition, the Petitioner asserts that our decision relating to his leading or critical role "did not 
support a favorable merits determination" and our "silence lends to the conclusion that this criteria 
[sic] supported a favorable merits determination." On the contrary, we specifically addressed the 
Petitioner's current employment with a position he obtained approximately two 
months prior to the filing of his petition. Furthermore, we determined that the Petitioner did not 
demonstrate that his employment with was reflective of, or has resulted in, 
widespread acclaim in the field or that he is considered to be at the very top of his field of endeavor. 
Moreover, we found that the Petitioner did not show any leading or critical roles for any other 
organizations or establishments with distinguished reputations, indicating sustained national or 
international acclaim. 
For the reasons discussed above, the Petitioner has not demonstrated that our appellate decision was 
incorrect. We conducted a de nova review of the record on appeal, thoroughly analyzed the 
evidence, and ultimately concluded that while the Petitioner satisfied three of the evidentiary criteria, 
he did not establish the required sustained national or international acclaim for this highly restrictive 
classification. The Petitioner did not now show how we erred and did not support his motion with 
relevant precedent decisions to demonstrate that we misapplied law or policy. Accordingly, the 
Petitioner did not satisfy the requirements for a motion to reconsider. 
B. Motion to Reopen 
The Petitioner submits screenshots relating to downloads of his work on the Internet claiming "an 
updated breakdown showing [his] work has now been reviewed in over 70 countries worldwide, at 
114 academic and private institutions, and referred to over 107 times online." As discussed above, 
although downloads may show that others have looked at his work, he did not demonstrate the 
significance or meaning of the data. As such, the Petitioner did not establish that the downloads 
reflect that he is among the small percentage at the very top of the field of endeavor, that he has a 
career of acclaimed work in the field, or that the field recognizes his achievements as having 
sustained national or international acclaim. Accordingly, the documentation he provides on motion 
does not show that he is an individual of extraordinary ability for this highly restrictive 
classification. 
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 his eligibility for the benefit sought. In visa 
petition proceedings , it is the petitioner 's burden to establish eligibility for the immigration benefit 
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Matter ofM-S-W-
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 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Matter ofM-S-W-, ID# 2354225 (AAO Mar. 14, 2019)