Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
For those with a high salary or other remuneration, satisfying this criterion is relatively simple compared to the other nine criteria. To do so, you must establish two primary facts, which we will now break down. First, you must show your earnings – these must be for your work in the field, having a high income from other areas is not sufficient. Second, you must show that your income in the field is significantly higher than others in the same position and field – you should do this through established compensation survey data from recognized and trusted agencies.
WARNING: Please do not submit under this criteria unless you can knock it out of the park. eg. Immigration staff can get $114,000 p.a. if you can beat that then consider submitting under this criterion. Also ensure that if you apply under this criteria you can prove that you have continued throughout your career to earn at this level otherwise it can damage your ‘sustained acclaim’ in your application.
An excellent indicator of your extraordinary ability is financial success. If you are an artist who hasn’t won awards or hasn’t that much publicity but have steadily made a significant amount of money this may be a criteria that you can satisfy.
For comparable US rates use information from:
The Bureau of Labor Statistics (BLS) https://www.bls.gov/bls/blswage.htm
The Department of Labor’s Career One Stop https://www.careeronestop.org/SalariesBenefits/Sal_default.aspx
Department of Labor’s Office of Foreign Labor Certification Online Wage Library https://www.flcdatacenter.com
O*NET OnLine used American Job Center: https://online.onetcenter.org/find/
Or other independent websites such as salary.com or payscale.com (international data available) and paysa.com
Your wage should be higher in comparison to those in your current location, so the above sites are useful only for artists already in the US on temporary visas. Find the relevant government approved income reports for your own country and use their figures as evidence. Earnings in different countries should be evaluated based on the wage statistics or comparable evidence in that country, rather than by simply converting the salary to U.S. dollars and then viewing whether that salary would be considered high in the United States. The top of your field in your country may be significantly less well remunerated than those at the top of their field in New York or Los Angeles. However, if you can prove higher compensation than comparable American artists in your field, you are in a very strong position.
For the most part, you may assume government websites to be the most trustworthy and acceptable to USCIS examiners. The different reports from the above websites may have different results – be sure to have the most up to date information available and to use the most senior authority. Where two trusted services report different figures, meeting the higher value will be helpful, but you can lean on the lower if need be. Also, many artistic disciplines may be listed together, or no overall data may be available, in which case you should seek out industry specific data and reports to corroborate your evidence of high salary.
As you can see from the images above, the Bureau of Labor Statistics (top) gives a national mean wage for Fine Artists, Including Painters, Sculptors, and Illustrators (job code 27-1013) as $51,120, while Salary.com lists the median salary for California Painter/Illustrators at $42,933 and New York Painter/Illustrators at $46,172, and the Department of Labor’s Career One Stop site lists the national average at $43,900, with California Fine Artists at a median $58,800 and New York Fine Artists at $71,800. Those are major disparities – it is imperative that you account for them in order to best formulate your case, and choose the most advantageous presentation. Of course, we are not interested in mean or median incomes, we are looking for the significantly high remuneration of those artists who have risen to the top percentage in their field. Here, Salary.com and CareerOneStop.org are beneficial, as they also show 90th percentile figures – although they differ wildly – Salary.com claiming $60k vs CareerOneStop.org’s $108k for California and $92k nationally. Unfortunately, with CareerOneStop being a Department of Labor website, that’s the one USCIS examiners will check themselves!
Note: You do not need to be in the top 1%, earning millions – or tens of millions – though the higher you place in the 90th percentile, the better.
While these national and regional reports are beneficial to your case, it is important to try and source detailed industry reports when possible. These single industry salary surveys, though often more difficult to obtain, may provide position-specific wage data that can be compelling proof of your significantly higher remuneration comparative to others in your position. USCIS may not be satisfied with single source evidence, particularly when it is not directly related to your exact position and responsibilities. This is particularly true in cases, like above, where painters, sculptors and illustrators are grouped together.
Also you should provide additional corroborating evidence of your high salary to establish that your income is higher based on your extraordinary ability. This may come in the form of trade press reports of exceptional sales or results, leading to bonuses or salary increases for you. You can also submit current job vacancies showing what other employers are willing to pay for someone of your caliber.
You may also use reference letters from employers testifying as to why you receive a greater remuneration package to others of a similar position to you. Reference letters can explain how individuals in an artistic setting spend a great deal of time both developing, researching and teaching, none of which are ‘money-making’ endeavors. Moreover, in an artistic settings, money earned for an innovation or other success often goes back into another production or project. Given this background, your salary can be put into perspective.
When presenting your evidence of higher salary, you should again show the most official documents possible. You should submit evidence of salary/remuneration receipts in the form of official government tax documents, such as US form W2 or 1099a, or your national equivalent. Although you may submit other types of evidence such as contracts and offer letters, they are not considered to be definitive proof that you actually received the payment. These official forms also detail all end of year/project bonuses and other payments acceptable under this criterion. Note however that benefit packages (including travel/tuition reimbursements, medical/dental cover, stock options, pension contributions, etc.) are not of interest to USCIS examiners – although they may be valuable incentives to the position, they are considered standard packages available to all employees, and can also be required by law. You should think only in terms of salary, wages, commissions and bonuses. Prove your significantly higher income in these forms, and support with industry-, geographic- and position-based statistics and you are well prepared for this criterion.
Evidence for this criterion includes tax returns, paystubs, and contracts showing that you actually received the stated salary. Your salary must be high compared to others who are performing similar work and have similar levels of experience. Hence, it is important to also include evidence showing comparable salary data of others in the same field. Ideal evidence would be a W-2 accompanied by a letter from an employer confirming the salary and geographical-position-appropriate compensation data showing the salary of others holding the same position in the same geographical area.
Even if you provide evidence of a high salary, you must still show at the final merits stage that the earnings are at a level reflecting that you are one of a small percentage who has risen to the top of the field.
For this criterion, you should provide support of your salary and a reference of the foreign labor Certification Data Center or online wage library that reflect a ‘Level 4’ salary. You should also submit a letter from your employer/s confirming that the compensation offered to you is high compared to the compensation of other professionals with similar education and experience, and that such high compensation is based on your expertise.
Consider this criterion carefully before submitting. If you are claiming to meet this criterion, then the burden is on you to provide appropriate evidence. It is important that you don’t do yourself a disservice by showing less than spectacular earnings. And DO NOT LIE! A common response in this criterion is an RFE requesting tax returns – you paid all your taxes, right?!
Evidence sample Performing artist
| Contracts with salary you were paid or will be paid | Pay Stubs |
| Payroll documents/tax returns detailing the wage | Tax Return |
| Statistical comparison of the salaries in the field | Salary Reports Salary Reports Salary Reports |
Jump down to below the menu for USCIS statements relating to this criterion.
- STEP ONE
- Gathering Evidence
- Recommendation Letters
- Continue to Work
- Substantially Benefit the US
- Translations
Note: U.S. Department of Labor prevailing wage rate information alone does not generally establish whether the salary or other remuneration is “significantly” higher than that of others in the field. If U.S. Department of Labor prevailing wage rate information is submitted, it should be accompanied by other corroborative evidence showing that the wage rate is high relative to others working in the field.
DO NOT LIE. One story we heard was that an actor claimed he had been paid $40,000 for a days work on a commercial. This was for a supposed commercial that he had done. The examiner came back with an RFE(Request for Evidence) looking for the tax receipt of the earning. BUSTED!
USCIS AILA
AILA’s concern respecting this category and how it impacts the Kazarian analysis stems from language in the USCIS RFE template that is contrary to the guidance to the field which provided examiners with three specific websites that offer federal databases of wages in specific fields.
These sites included the Department of Labor’s Office of Foreign Labor Certification Online Wage Library. This site is a particularly strong and long-standing tool, as it forms the basis for wage determinations in H-1B and labor certification cases. Included in this database is an uppermost level, for those most experienced in the field. This would provide USCIS with a very clear parameter to determine if a salary is indeed considered “high.” Disconcertingly, in a side note, the template dismisses DOL data as not establishing on its own that a salary is “significantly” higher than others. However, the regulatory language requires evidence that the alien has “commanded a high salary, or other significantly high remuneration ….” The language referencing “other significantly high remuneration” was meant to encompass forms of compensation other than salary alone, such as a very high bonus or a high fee for services rendered. It does not require that the salary be significantly higher as compared with others, nor does it require that it be amongst the highest in the field. There is also no requirement that the petitioner provide an organizational justifications to pay above the compensation data, as suggested in the template, since this is not probative of whether the salary is “high” as compared to others.
From a denial case
The plain language of the regulation at 8 C.F.R. § 204.5(h)(3)(ix) requires the petitioner to submit evidence of a “high salary or other significantly high remuneration for services, in relation to others in the field.” Average salary information for those performing work in a related but distinct occupation with different responsibilities is not a proper basis for comparison. The petitioner must submit documentary evidence of the earnings of those in his occupation performing similar work at the top level of the field? The petitioner must present evidence of objective earnings data showing that he has earned a “high salary” or “significantly high remuneration” in comparison with those performing similar work during the same time period. See Matter of Price, 20 I&N Dec. 953, 954 (Assoc. Comm’r 1994) (considering professional golfer’s earnings versus other PGA Tour golfers); see also Grimson v. INS, 934 F. Supp. 965, 968 (N.D. Ill. 1996) (considering NHL enforcer’s salary versus other NHL enforcers); Muni v. INS, 891 F. Supp. 440, 444-45 (N.D. TIL 1995) (comparing salary of NHL defensive player to salary of other NHL defensemen).
The petitioner provided website printouts from the following sources: the Foreign Labor Certification (FLC) Data Center’s Online Wage Library, salary.com, www.indeed.com, www.glassdoor.com, and monster.com. The petitioner also submitted an employment offer dated November 24, 2011. The director determined that the petitioner met the requirements of this criterion.
The AAO withdraws the director’s favorable determination as it relates to this criterion for the reasons discussed below. The November 24, 2011 employment offer was from ShareThis reflecting the company offered the petitioner an annual salary of $145,000 for the position of Senior Research Software Engineer. The letter also identified other forms of remuneration such as a bonus upon the completion of the petitioner’s first year with the company, stock options, and a health plan among other incentives. The FLC Data Center’s Online Wage Library website printouts provided wage information for Application Software Engineers in the “Oakland-Freemont-Hayward, CA Metropolitan Division.” The FLC Data Center’s Online Wage Library relies on the Bureau of Labor Statistics (BlS) Occupational Employment Statistics (OES) wage estimates.
1 The employment data are benchmarked to average employment levels.
2 The evidence from salary.com provided salary information relating to software engineers in the California area rather than the industry or the field as a whole. The plain language of the regulation requires the petitioner to establish that the petitioner’s salary is high when compared to others in his field and average statistics limited to one particular geographic area of California do not meet this requirement. Furthermore, the salary.com website states: “The data is intended to provide a reasonable range for typical cash compensation earned by the typical person working in that job.”
3 Comparisons to “typical cash compensation earned by the typical person” is not an appropriate comparison for the petitioner to demonstrate his compensation is high relative to others in the field. The remaining evidence of website printouts from www.indeed.com, www.glassdoor.com, and monster.com also focuses only on one geographic location within California. All of the above salary information for comparison purposes relates to average salaries within one particular geographic area of California. This criterion requires the petitioner to establish that his salary is high when compared to others in his field rather than providing average statistics limited to one particular geographic area of California. Based on the foregoing, the petitioner has not submitted evidence that meets the plain language requirements of this criterion and the AAO withdraws the director’s favorable determination as it relates to this criterion.
Memorandum for Regional Directors, et al. AFM Update: Chapter 22: Employment-based Petitions (AD03_01)
High salary or remuneration (8 CFR 204.5(h)(3)(ix)). To satisfy this criterion, the petitioner must show that the alien beneficiary has commanded a significantly high salary or remuneration for services, in relation to others in the field. In this regard, evidence that the alien has commanded a salary or other remuneration significantly higher than others at the alien’s workplace would not be sufficient to establish the alien’s outstanding role within his or her field without further, objective additional evidence. Additionally, the submission of official U.S. Department of Labor prevailing wage rate information for the alien’s field of endeavor, without other corroborative evidence, generally would not meet this criterion, as it might not establish whether the salary or other remuneration is “significantly” higher than that of others in the field. Such prevailing wage rate information should normally be accompanied by other documentation satisfactorily explaining why the petitioner believes the alien beneficiary’s salary or remuneration is significantly higher than that of others in the alien’s specific field.