“High Salary” criterion [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.”
As a foreign national wishing to claim the “High Salary” criterion, there are several items to consider prior to compiling appropriate evidence in the objective of satisfying this criterion. Throughout our extensive legal experience and specialized background in U.S. immigration policy analysis, we at Chen Immigration Law Associates have come to view this particular criterion as one of the easiest criteria to claim when the specific evidence required is both available and qualifying. In other words, and no matter the origination of evidence, in order to claim this criterion, one must submit evidence of salary/remuneration receipts in the form of official government tax returns (i.e. Form W-2s, Form 1099s, or the foreign equivalent of such). Regardless of whether this evidence is either unavailable or not applicable, it is very difficult to satisfy this criterion without such evidence, since offer letters, or other official statements documenting one’s high salary do not necessarily demonstrate that the petitioner/beneficiary actually received the salary presented in the claimed criterion.
Moreover, due to the separate plain language references used in this regulatory criterion, namely ‘salary’ as opposed to ‘remunerations,’ it is important to define these terms and note that they are effectively interchangeable and do not by any means indicate that one’s wages in the form of benefits (i.e. tuition reimbursements, healthcare/medical allotments, profit-sharing incentives, stock options, 401(k) contributions, etc.), regardless of their basis on performance, ever qualify as part of one’s salary or remunerations. This is due to the nature of these benefits, since they are relatively viewed as routine, and in some instances are indeed required by law, and are likewise rarely included in individual tax returns. Bonuses on the other hand, albeit depending on the actual receipt of said wages and the inclusion of such in tax returns, may qualify as part of one’s compensation, only if they are included in the total wages section of the individual’s tax returns. In fact, according to the Merriam-Webster® dictionary (the definition-database used by the USCIS in connotative regulatory contexts)-
Therefore, by definition, any payment for one’s services, whether in the form of salary, wages, commission, or bonuses, may be considered in the regulatory evaluation under this criterion; however, one must note the comparative implications imposed if one does claim anything other than base salary. In other words, if one submits evidence in the form of one’s base salary, then field, geographic, and position-based statistics must be provided specific to the base salary of others in the mutual field of classification; in layman’s terms, you must compare ‘apples to apples’ and ‘oranges to oranges,’ and failure to do so may result in the immediate denial or request for additional evidence in the case by the USCIS. As such, it may or may not be valuable to claim one’s total cash compensation (i.e. base + variable pay) in submission of evidence under this criterion. Nevertheless, if one does have evidence of their salary/remuneration in the form of official government tax returns, either domestic or foreign, the next step in determining eligibility under this criterion involves a comprehensive analysis of the salary’s or remunerations’ height in relation to others in the field.
In accordance with the overarching context of Kazarian analysis in determining whether or not one has risen to the top of their field of endeavor, and according to the USCIS-
One of our past approved cases filed by Chen Immigration Law Associates involved a Graphic Designer who had evidence of a high salary of approximately $90,000. Therein, we provided the following databases to show the individual’s high salary in relation to other graphic designers in the field: (1) The Bureau of Labor Statistics; (2) The Department of Labor’s Office of Foreign Labor Certification Online Wage Library; (3) Salary.com; and (4) Payscale.com. For each of these databases, we highlighted the 90th percentile figures (Level 4 Wage for the Foreign Labor Certification database) which were substantially lower than the graphic designer’s salary, and where applicable/available, provided geographic-specific data for the individual’s position relative to others within the employment-based locality.
At Chen Immigration Law Associates, we recognize that understanding breeds confidence, and that confidence in turn leads to favorable action, which invariably results in favorable consequence. This is not to say that the information contained within this article is infallible, but rather suggests that with this additional knowledge, individuals in all pursuits and motives will be better suited to qualifying evidence leading to a more favorable adjudication of their immigration proceeding. Thus, before attempting to claim this criterion, like any other criterion, one must consider the comprehensive and detailed standards of law. Consulting an attorney will aid one’s understanding of whether or not they, in totality and actuality, meet this criterion. All cases are different, and the USCIS has set up each criterion for the flexible interpretation of all parties. Therefore, while it is always illogical to completely disregard evidence, proper consideration and consultation is the optimal means of determining which criteria to argue in the petition package.
North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).
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