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)-

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-

Herewith, it is important to note that not only is it the responsibility of the petitioner/beneficiary to submit evidence of one’s salary/remunerations received in the form of governmental tax returns, but the petitioner/beneficiary is also responsible for submitting relevant wage data and surveys showing that the salary/remunerations claimed are considered ‘high’ in relation to others in the mutual field, relative geographic (local/regional/national), and similar position/title.  In addition to those databases provided above, other qualifying sources of salary/wage data that provide free statistical outputs include Salary.com and Payscale.com.  Others such as Vault.com and Kenexa’s Companalyst.com provide comparative salary figures via paid subscription services.  Salary surveys, albeit to some degree more difficult to obtain, may provide position-specific wage data that will be valuable in determining and/or demonstrating the relative height of one’s salary.  Ultimately, and regardless of the comparative data sources employed in the analytical determination of one’s salary being high in relation to others in the field, it is critical to ensure that the salary is well-above the 90th percentile of comparable wage data.  This is due to the necessary and implicative realization that the plain language requires one’s salary/remunerations to be significantly higher than others in the field of endeavor, thereby enabling the secondary and contextual evaluation of one’s rise to the ‘small percentage at the top of the field of endeavor.’

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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.

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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.