Alternatives to the H-1B: O-1A Visa - Alternative Criterion 8 (High Remuneration)
For those of you considering viable options to the H-1B cap (because you were not selected in this year’s lottery), I will be doing a deep-dive into the O-1A criteria over the next couple of weeks.
When determining whether someone is qualified for O-1A classification, I cannot emphasize enough how essential it is to read the regulations and the requirements in their totality.
What does this mean? Read the regulations and the requirements in their totality. This means literally reading each and every single word – do not summarize or abbreviate the criterion because this is where you get into trouble.
If you do not possess evidence of receipt of a major, internationally recognized award (on the level of a Nobel Prize), in your field of endeavor, you can still qualify for O-1A classification by providing documentary evidence in at least three (3) out of eight (8) alternative criterion, which we will address in the coming weeks.
It is important to note that the vast majority of O-1A recipients that I have worked with (more than 99%) do not have a major, internationally recognized award. These incredibly talented individuals qualify for O-1A classification because they are able to meet at least three of the alternative criterion.
O-1A Deep Dive - Alternative Criterion 8
The regulations state that the beneficiary of an O-1A petition may provide evidence they “[have] either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.” 8 CFR §214.2(o)(3)(iii)(B)(8).
Problem
What’s so difficult about this criterion? Why do so many people get it wrong? To satisfy this criterion, you must make a two part showing:
The beneficiary has commanded (in the past) a high salary or other substantial remuneration for services in relation to others, OR
The beneficiary will command (in the future) a high salary or other substantial remuneration for service in relation to others.
Pro Tips
First, when evaluating high remuneration or salary, it is essential to determine whether the beneficiary is paid hourly or annually. If you are assessing paystubs, it is really important to determine whether the beneficiary is paid every week, bi-weekly (every other week, 26 paychecks per year) or semi-monthly (twice a month, 24 paychecks per year).
Second, whether a beneficiary is earning a high salary or other remuneration requires a comparison by geography and their peers. I have found that a very useful tool is the wage data provided by the DOL’s Foreign Labor Certification Data Center. In order to satisfy the high salary or other remuneration, the hourly or annual salary must exceed the Level 4 wage for the occupational classification most closely related to the beneficiary’s field of endeavor in the geographic location where all services have been performed or will be performed.
Third, read the Regulations and USCIS Policy Manual, in particular, “Appendix: Satisfying the O-1A Evidentiary Requirements” carefully and ensure that you are providing documentary evidence that satisfies the entirety of the criterion, not just a summary of what you think it means (or worse, only what you have evidence to show).
Fourth, work with a qualified business immigration attorney who is experienced in representing, preparing and filing O-1A petitions. It is essential to understand the changing definitions, regulatory interpretations and adjudicative priorities of USCIS in order to present the strongest possible petition.