EB1 Category – High Salary
Over the past couple of months I have been writing what will eventually be a ten-part guide on the categories that make up the baseline criteria for the “EB-1A”, which is an employment-based, first-preference visa for extraordinarily ability in the sciences, arts, education, business, or athletics. My first article contained a more extensive introduction that I will not reiterate, but it can be found here:
This month, I continue on with the High Salary category.
High Salary Overview
One of the easiest ways to determine a person’s overall talents is to look at their paychecks. While this is perhaps rudimentary and oversimplified because many people may be overpaid or underpaid, generally speaking someone who earns more than nearly everyone else in their field is often a very special talent. A High Salary may not be sufficient on its own to establish extraordinary ability, but it certainly doesn’t hurt, and it is one of the ten possible EB1 categories.
8 CFR 204.5 (h)(3)(ix) – Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field.
From the basic language, USCIS has also expanded their interpretation through a 2010 practice memorandum that established a couple more general guidelines that they like to see followed in order to increase the chances of winning this category:
- Determine whether the alien’s salary or remuneration is high relative to the compensation paid to others working in the field.
There are a few things to unpack in USCIS’ most basic guideline above (which is essentially just a reiteration of the Code of Federal Regulations on the High Salary category), as well as in the regulation itself.
“Salary or Remuneration”
The first is the words “salary or remuneration”, or as they are stated in the Code, “high salary or other significantly high remuneration”. This phrase has generally been somewhat flexible. If you are in an occupation that earns a traditional salary, then your best evidence will be your year-end earnings, provable through a tax return, a W-2 (if you are working in the US), or an equivalent official document. A few months worth of pay slips can also work, although it is less convincing than a year-end number. Letters from an HR department and a copy of the contract you are working under can also help support your case.
However, USCIS has generally been reasonable in understanding that some professions don’t lend themselves to year-end salary numbers. As an example, artists and performers may not get a traditional salary but instead work on an ad hoc or per-contract basis. For instance, if you are an extraordinarily talented guitarist, perhaps no one employs you per se but you are paid incredible amounts by the hour for your performances. An artist or photographer similarly might not be on a salary, but instead can sell their original paintings or photographs for substantial amounts of money.
In these sorts of situations, it is important to document everything and have several examples. Save any invoices, and also save evidence that those invoices were paid (bank records and the like). Typically, one or two examples won’t be enough, you need to document that you regularly can command high pay for your work.
Further, while bonuses are worth nothing, you generally want to exceed the comparable data with your base salary alone. While we have successfully argued in the past that bonuses should be included, there has been some pushback to that lately from USCIS. Now, if your profession is one that is largely based on commissions, then of course we could make the argument that base salary alone is not the proper comparison.
All in all though, what is important to remember for this subsection is that documentation is everything. If USCIS has any reason to doubt your salary evidence is authentic, they will send Requests for Evidence that slow down the case. Further, keeping things simple is always the ideal. Providing earnings evidence reflecting a full year’s pay is preferable to just about anything else. The less logical moves we need the officer to follow us through in explaining what your earnings, the better.
“has commanded a high salary”
This is pretty straightforward – your earnings must have already happened, or at least currently be happening. A contract for future employment that will pay you a high salary will not satisfy the criteria. If you are currently working on a contract and have a few months worth of payslips to show you are actually earning the salary stated in the contract, that is acceptable. This isn’t normally confusing except to people who have done something like an O1 Visa in the past, as that can allow for prospective salary evidence. The EB1 does not.
The only other bit of advice worth remembering here is that while technically salaries from years ago are valid, the more recent the better. If you show you made a crazy amount of money in 2005 but haven’t made nearly as much in the decade since, it will raise questions in the Officer’s mind about whether you have sustained your extraordinary ability.
“relative to the compensation paid to others working in the field”
The key to the High Salary category is this portion right here. Even once you have proven your earnings, the bigger and more important step is proving that they are high compared to others in your profession. This raises multiple questions that need to be addressed to come up with a clear path to winning the High Salary category:
- Who do you compare to?
There are two main factors to consider here –
- What is your job title?
- Does it correspond with your job duties?
USCIS will be more concerned with the latter, though the more consistent your duties are with the job title the better. A big part of the High Salary comparisons is finding the perfect data to compare to, and sometimes this can prove a challenge, especially with more specialized and niche job duties.
The temptation will always be there to try and find data for a close but not perfectly matching job title, or one that is subordinate to your position. USCIS is well aware of this method however, so it is typically not wise to do High Salary if you don’t exceed the closest matching comparative data. If you are listed as a “Senior Engineer” by your employer, you will want to compare salary data for other high level engineers, not simply any engineer in your field.
While this is problematic for some applicants, for others it can work in their favor. Going back to the engineer example, what if you are not a Senior Engineer but you are so talented as an engineer that you get paid more than what the data says a Senior Engineer should make? That would actually HELP your case, because it is indicative of your overwhelming talents.
- What data should be used for comparison?
For those working in the US under a Visa, the 2010 USCIS Practice Memorandum actually lays out a few suggestions of data sources that may be used for comparison. These are the Bureau of Labor Statistics, the Department of Labor’s Career One Stop, and the Department of Labor’s Office of Foreign Labor Certification Online Wage Library.
While other data sources may be used, it is wise to always include these three because if you don’t, the USCIS Officer will likely look them up for you as they are trained to look for them. Of the three, the first two are national data, and the second is local. To come as close as possible to guaranteeing a win on High Salary, you should exceed both national AND regional data. Remember though, regional data alone will not be enough, if you make a substantial amount in your region but don’t compare as well nationally, you are probably sunk on this category.
In the past, I have successfully won cases where the client made more than the national data, but didn’t do so well against the region. It does seem like USCIS Officers tend to care more about national data, but I have read decisions from the Appeals Office where they turned down High Salary arguments because the applicant did not beat the regional data.
If you are not in the US, then of course you don’t need to compare yourself to US data, instead, you must show that you make a high salary relative to others in your field in the country you are working in. Try and find the most high-profile data sources you can (government data preferred) in your country and see how you compare.
One of the biggest problems we have with our clients earning money abroad is simply a lack of data, especially those working in poorer countries. You may make a tremendous amount, but if data doesn’t really exist to prove you make a high salary relative to others in your field nationally, you will have to turn to more difficult and precarious methods. These include perhaps getting a letter from a recruiter explaining that your earnings are very high, asking an accounting firm if they have internal data that you can pay them to compare you to, or getting your employer to write you a letter to say you are a high earner in your field. None of these are as good as finding plenty of reliable data, but they make for a decent Plan B.
What won’t ever work, unfortunately, is explaining to USCIS that data does not exist. They may even acknowledge you are right, but their classic line is: “the lack of comparative data is not a substitute for its inclusion”. Frankly, USCIS will not care if the data is too difficult to find or nonexistent, as the burden of proof is on you the applicant to show you are extraordinary.
Whether in the US or abroad, try to find at least 3 data sources. In the US this is simple, just use the three USCIS recommends (it’s also good to add more as well to strengthen your case). In other countries, if you can’t get 3 but have one or two good ones, then you may be fine, especially if you exceed the data you did find by a substantial margin.
- By how much should your earnings exceed the relevant data?
Having found good data to compare to, many applicants are under the mistaken assumption that they simply need to exceed the median or average. This is not the case; USCIS will want to see that you are “extraordinary” after all, not merely “above average”. The BLS and many other data sources give data in three main increments:
- Bottom 10th percentile
- Average or Median
- 90th percentile or “High”
You will always need to meet or exceed the 90th percentile or “high” figure. Even then, it is always best to have some distance from that number. If the 90th percentile earners in your field make $100,000 per year and that is exactly how much you make as well, then it is a bit of a tossup on whether or not the Officer will accept the category as satisfied. I have done so successfully in the past, but I have also had cases run into problems trying that. Again, we come back to that word “extraordinary”. Fairly or unfairly, some Officers seem to think that if you are truly extraordinary, you should vastly exceed even those 90th percentile earners in your field.
I typically tell my clients that if the rest of their case is overwhelmingly strong, then I am willing to gamble that just matching or barely exceeding the 90th percentile will work. In those situations, it almost always does. It is wise though to avoid the trap of just barely crossing the line on each category, as that will put the Officer in the mindset that you are pretty good at what you do, but perhaps not quite extraordinary.
I hope this article was helpful to you in getting a general overview of the High Salary category. I will be back next month to cover another category, but if you don’t want to wait, get in touch with us for a free consultation to see if applying for an EB-1A is the right choice for you!
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Chris M. Ingram LL.M., ESQ – Immigration Attorney
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