Evidence Building
Evidence Building: Using BLS Wage Data for the O-1 High Salary Criterion
The BLS Occupational Employment and Wage Statistics survey is the standard comparison source for O-1 high salary evidence, but the right SOC code, geographic level, and percentile framing determine whether the exhibit is persuasive. Here is how to build a defensible comparison that holds up under USCIS scrutiny.
The high salary criterion
The high salary criterion applies to both O-1A and O-1B petitions. Under 8 C.F.R. § 214.2(o)(3)(ii)(B)(7) for O-1A and § 214.2(o)(3)(iv)(B)(4) for O-1B, the petitioner must demonstrate that they command a high salary or other remuneration substantially above that paid to others in the field. The Bureau of Labor Statistics Occupational Employment and Wage Statistics (OEWS) program is the most widely used external wage comparison source in O-1 petitions because it is produced annually by a federal agency, covers over 800 detailed occupations, and provides percentile-level breakdowns that allow precise positioning of the petitioner's compensation within the relevant occupational wage distribution.
In practice, the high salary criterion is one of the most straightforward criteria available to mid-career and senior professionals yet is frequently underutilized. Petitioners who could satisfy the criterion with a simple comparison exhibit sometimes fail to present the data clearly, allowing USCIS to issue an RFE treating the criterion as unsatisfied. Conversely, some practitioners submit BLS wage comparisons using the wrong occupational classification, an outdated release year, or an inappropriate geographic scope — errors that give adjudicators a legitimate basis to discount the evidence. Preparing the comparison exhibit carefully from the outset is more efficient than responding to a preventable RFE.
The regulatory phrase "substantially above" the wages paid to others in the field has no explicit definition in 8 C.F.R. § 214.2(o), and the USCIS Policy Manual does not fix a specific percentile threshold. AAO decisions and adjudication trends indicate that a salary at or above the 90th percentile of the OEWS wage distribution for the relevant occupation provides a strong foundation. Salaries between the 75th and 90th percentile require additional framing and supplementary context to be persuasive, while a salary below the 75th percentile will generally require corroboration from industry-specific compensation surveys beyond the OEWS data alone before the criterion can be treated as satisfied.
How the OEWS survey is structured
The BLS OEWS program surveys approximately 1.1 million business establishments annually across six semi-annual panels, producing a nationally representative wage dataset for around 800 detailed occupations. Data is released each May, with wages reflecting the prior April reference period. Occupations are coded using the Standard Occupational Classification (SOC) system, which ranges from broad groupings such as 15-0000 Computer and Mathematical Occupations to detailed occupational codes such as 15-2051 Data Scientists. The OEWS release includes national, state, and Metropolitan Statistical Area (MSA) level wage tables, giving practitioners the flexibility to select the comparison geography most appropriate to the petitioner's actual work location.
Wage percentiles published in the standard OEWS release are the 10th, 25th, 50th (median), 75th, and 90th. There is no published 95th or 99th percentile in the standard release. When a petitioner's salary substantially exceeds the 90th percentile, the petition should quantify the gap. If the published 90th percentile for the relevant occupation is $175,000 annually and the petitioner earns $280,000, noting that the petitioner's salary is 60 percent above the published 90th percentile is more informative to the adjudicator than the bare statement that the salary exceeds the 90th percentile — a statement technically satisfied by any salary above the threshold, including one marginally higher.
Geographic comparison data in the OEWS allows the petition to use national, state, or MSA level wages depending on where the petitioner works. The correct approach is to use the geographic level that most precisely reflects the petitioner's work location. A petitioner employed in the San Jose-Sunnyvale-Santa Clara MSA should use that MSA's wage data for the relevant occupation rather than the national average, because local wage levels in technology-intensive regions differ substantially from national medians. If the petitioner's salary exceeds the 90th percentile at all geographic levels, the national data is the simpler presentation — it avoids any appearance that the geographic level was selected to optimize the comparison.
Selecting the right occupational code
Incorrect occupational code selection is the most common error in BLS-based high salary evidence. Broad codes can make a strong salary appear average. A machine learning research scientist, for example, might be classified under 15-2051 Data Scientists, 15-1221 Computer and Information Research Scientists, or 15-1251 Computer Programmers, depending on how their duties are described. The Data Scientists and Computer and Information Research Scientists codes carry higher 90th-percentile wage thresholds than the Programmers code, and placement under the more specific code that genuinely reflects the petitioner's primary duties is both accurate and results in a more favorable wage comparison. The selection must be defensible based on the petitioner's actual job description.
The petition should cross-reference the selected SOC code with the official BLS occupational definition and with the O*NET occupational requirements profile maintained by the Department of Labor. O*NET provides detailed task, skill, and knowledge profiles for each SOC code. If the petitioner's primary duties align with a specific SOC definition, that alignment should be stated explicitly in the petition: cite the SOC code, quote the occupational definition, and note that the petitioner's role corresponds to that definition based on the job description or employment verification letter. This prevents USCIS from substituting a different classification during adjudication and requiring the petitioner to respond on RFE.
Some professions do not map cleanly to a single SOC code. Art directors, VFX supervisors, clinical research coordinators, and academic researchers with industry-facing roles often span multiple classifications. In these situations, the petition should identify the most specific applicable code, explicitly document the selection reasoning with reference to O*NET task profiles, and note any alternative codes considered and why the selected code most accurately reflects the petitioner's primary occupational duties. If the petitioner holds a title that maps directly to a BLS category — such as Chief Executive or Surgeon — that code takes priority over related but less precise alternatives, and the title match should be noted in the exhibit.
What USCIS treats as persuasive
A well-prepared high salary exhibit for an O-1 petition includes four components: an employment verification letter or offer letter showing annual base salary and any quantified bonus or equity component; the most recent BLS OEWS wage table for the relevant SOC code at the appropriate geographic level; a brief explanatory paragraph positioning the petitioner's compensation relative to the published percentiles; and, if the base salary alone does not clear the 90th percentile, supplementary compensation documentation. The exhibit should be self-contained — the adjudicator should be able to assess the comparison without cross-referencing other sections of the petition.
When a petitioner's base cash salary does not by itself satisfy the criterion but total compensation does, the petition should document the total compensation package with specificity. For equity-compensated employees, this means providing RSU vesting schedules or stock option grant agreements and computing the fair market value of annual equity grants using a reasonable methodology. The petition should supplement this with industry compensation reports — from sources such as the Radford Global Compensation Database, Mercer, or Willis Towers Watson — demonstrating that at the petitioner's career level and role, total compensation packages at comparable organizations routinely exceed the OEWS 90th percentile for cash wages in the relevant occupational category.
For self-employed petitioners, independent contractors, and sole-proprietorship business owners, the high salary criterion is addressed using net income from the petitioner's own business or contracting activity, compared to BLS OEWS wages for the equivalent salaried position. The petition should document the petitioner's annual net income from the relevant activity with tax records or accountant-prepared income statements, state the OEWS comparison code being applied, and supplement with industry-specific reports on typical freelance or self-employed professional earnings at the petitioner's career stage. The comparison logic is the same as for employed petitioners — the petitioner's remuneration must be substantially above the relevant field norm.
How USCIS discounts weak presentations
Using outdated OEWS data is a presentation error that adjudicators note in RFEs. BLS releases new OEWS data each May, reflecting wages through the prior April reference period. For a petition filed in mid-2026, the appropriate comparison is the May 2025 OEWS release. Submitting May 2023 data is not merely a formality concern — wages in technology, healthcare, and other high-demand fields have shifted meaningfully over a two-to-three year period, and using stale data understates the current 90th percentile threshold. Including the specific BLS release date and release title in the exhibit header prevents any ambiguity about the currency of the comparison.
Presenting a salary modestly above the 50th percentile as high salary evidence is a substantive error. A salary at the 60th or 65th percentile is above average but does not satisfy the standard that the criterion requires. When a petitioner's salary does not approach the 75th percentile of the most specific applicable occupational code, the high salary criterion is likely unavailable as a realistic basis for the petition unless supplementary evidence substantially changes the comparison. The petition should address only criteria the petitioner can genuinely satisfy, and should not stretch the high salary criterion beyond the BLS data's support — an overreach on this criterion can undermine the credibility of the rest of the petition.
Inconsistent geographic comparison levels weaken the evidentiary value of the BLS comparison. Selecting national wage data when the petitioner works in a high-wage metropolitan area — where local 90th percentile wages exceed national figures — and then referencing MSA-specific cost-of-living information elsewhere in the petition creates an inconsistency that a careful adjudicator will note. The geographic level for the wage comparison should be stated and justified upfront in the exhibit, remain consistent throughout the high salary documentation, and reflect the actual market in which the petitioner competes for employment. Geographic selection that appears designed to optimize the comparison without substantive justification reduces the credibility of the evidence.
Building and auditing the high salary file
A complete high salary exhibit package for an O-1 petition should include the petitioner's employment verification or offer letter, the OEWS wage table for the relevant SOC code and geographic level with the release year identified, a two-to-three sentence explanatory paragraph positioning the petitioner's compensation, and any supplementary compensation documentation if base salary alone is insufficient. Organized as a standalone tab or exhibit within the petition file, the package should require no external context to be evaluated. The exhibit should label each component clearly — wage comparison table, employer letter, supplementary documentation — so the adjudicator can navigate it without reviewing the full petition brief.
Expert letters from compensation professionals or HR directors can strengthen the high salary criterion when the BLS comparison is close to the 90th percentile threshold or when the occupational classification requires justification. A human resources director or compensation specialist with demonstrated expertise in the relevant industry can provide a letter explaining that the petitioner's compensation is consistent with senior earners in the field, that the selected SOC code accurately represents the role, and that total compensation at comparable organizations at the petitioner's level routinely places in the upper percentile for that occupation. The expert should have verifiable credentials and industry-specific compensation knowledge, not merely general HR experience.
For petitioners who file O-1 renewals or seek EB-1A upgrades following O-1 approval, the high salary comparison should be refreshed using the most current OEWS release each time a new petition is prepared. Wage growth varies across fields — some occupations see substantial year-over-year wage increases that raise the 90th percentile threshold considerably, while others are more stable. A petitioner who comfortably exceeded the 90th percentile at initial filing may find that the threshold has risen at renewal time, particularly in occupations where compensation has grown rapidly. Annual review of the comparison allows the petitioner and their attorney to identify potential criterion weakness before a petition is due.
What we typically gather for this kind of case
| Document | Where to source | Why it matters |
|---|---|---|
| Expert letters | 5–8 independent recognized experts | Quality and independence beat volume |
| Certified translations | ATA-certified translator | Required for any non-English source document |
| Exhibit cover sheets | Drafted by counsel, one per exhibit | Tells the adjudicator what each piece shows |
| Bibliometric reports | Web of Science / Scopus | Quantifies impact for original-contributions criterion |
What we see go wrong, again and again
- 01Sending exhibits without a one-paragraph framing memo explaining what each shows and why it matters.
- 02Relying on volume over specificity — five well-targeted expert letters beat fifteen generic recommendations.
- 03Skipping certified translations or using AI translation for foreign-language source documents.