Evidence Building
How to Use BLS OES Data to Support an O-1A High Salary Criterion Showing in 2026
Bureau of Labor Statistics Occupational Employment and Wage Statistics data is the most defensible benchmark for the O-1A high salary criterion. This guide explains which OES percentile controls, how to read the tables, and how to present borderline salary evidence.
The high salary criterion and why benchmark selection matters
The O-1A high salary criterion, codified at 8 C.F.R. § 214.2(o)(3)(iii)(B)(4), requires evidence that the petitioner commands a high salary or other remuneration for services in relation to others in the field. USCIS does not define a specific threshold. Adjudicators evaluate the petitioner's compensation against an external benchmark, and the Bureau of Labor Statistics Occupational Employment and Wage Statistics survey — commonly called BLS OEWS — is the most widely accepted and adjudicatively credible source for that benchmark comparison. Officers reviewing O-1A petitions are familiar with the OEWS format because it serves as the primary reference for H-1B prevailing wage determinations.
The OEWS survey, published annually each spring, reports median and percentile wages for approximately 800 Standard Occupational Classification codes, broken down by state and by metropolitan statistical area. For O-1A purposes, the relevant comparison is typically the 90th percentile wage for the petitioner's SOC code in the relevant geographic market. A petitioner earning at or above the 90th percentile is in the top 10 percent of earners in that occupation and area — a threshold that USCIS has consistently accepted as satisfying the high salary criterion when properly documented with employer-issued compensation records.
The OEWS is a sample survey, not a census. It captures wages as defined by BLS, which includes base salary, bonuses, commissions, and tips but excludes employer-paid benefits and equity compensation. This methodology means OEWS may understate total compensation in roles where equity is a substantial component — venture-backed technology positions, biotech research roles, financial advisory positions with performance bonuses — a limitation that matters when constructing exhibits for petitioners in those markets.
What the regulation requires in terms of documentation
The criterion requires evidence of high salary or other remuneration, which means both the petitioner's actual compensation and the external benchmark must be documented. OEWS data alone — a printout of a wage percentile table without documentation of the petitioner's actual earnings — does not satisfy the criterion. The exhibit must establish what the petitioner earns and compare that figure to the OEWS data. An exhibit that shows only the benchmark without proving the petitioner's salary is as incomplete as one that proves the salary without providing a benchmark; both components are required.
Remuneration under the O-1A framework includes total compensation: base salary, annual bonus, commissions, and equity compensation valued at fair market value. For petitioners at publicly traded companies, equity has a verifiable market value on the grant date and can be included in the total compensation calculation. For petitioners at private companies, equity is typically valued using the 409A independent appraisal the company is required to commission under IRS guidelines for stock option administration. A 409A valuation report establishing the per-share fair market value, combined with the petitioner's grant agreement showing the number of shares or options, produces a defensible equity valuation.
Acceptable documentation of the petitioner's earnings includes a signed offer letter or employment agreement specifying base salary and target bonus, pay stubs from the most recent pay period, a W-2 or 1099 form from the most recent full tax year, or a letter from the employer's HR or finance department confirming the compensation structure. Self-declared salary figures in the attorney's cover letter or in a declaration by the petitioner are not sufficient on their own. The salary figure must be corroborated by employer-issued documents before the comparison against OEWS data becomes probative.
Evidence that routinely satisfies the criterion
A clean high salary exhibit combines three elements: a compensation document establishing total annual earnings, the BLS OEWS wage table for the correct SOC code and MSA, and a cover letter paragraph that explicitly compares the two and states that the petitioner's compensation exceeds the 90th percentile for the relevant occupation in the relevant geographic area as reported by BLS OEWS. This three-part structure — compensation documentation, OEWS data, explicit comparison — addresses the criterion directly and leaves no inferential work for the adjudicator.
Select the SOC code carefully. The code should reflect the petitioner's actual job function rather than their job title. A software architect with the title of Principal Engineer performs work within SOC 15-1252 (Software Developers), not SOC 11-9041 (Computer and Information Systems Managers), even if seniority level suggests an administrative classification. Using the correct SOC code matters because wage percentiles vary significantly across codes. Misclassifying toward a broader management category can make the salary comparison appear more favorable than the actual work warrants, which may raise credibility concerns with an experienced adjudicator.
For petitioners in geographic areas where MSA-level OEWS data is not available, statewide OEWS data is an acceptable substitute. The cover letter should acknowledge the use of statewide data and note that the petitioner's compensation exceeds the 90th percentile at the statewide level, which is typically a more conservative comparison than a local MSA comparison in high-cost metropolitan areas. If the petitioner is employed in San Francisco, New York, or Boston, the MSA-level data will produce a higher 90th percentile threshold than the statewide figures, so using MSA data when available produces the most accurate comparison.
Evidence USCIS regularly discounts
Private salary surveys — from Radford, Mercer, Levels.fyi, Glassdoor, or similar platforms — are frequently submitted in O-1A high salary exhibits but are routinely given less weight than OEWS data by USCIS adjudicators. These surveys sample different populations, use varying methodologies, and are produced commercially rather than under federal statistical standards. They can supplement an OEWS-based showing in niche occupational categories where OEWS undersamples the relevant workforce, but they should not serve as the primary benchmark for the criterion.
Comparisons to the petitioner's own earnings history — noting that salary increased substantially over a five-year period — or comparisons to a hypothetical market rate estimated by the attorney in the cover letter do not satisfy the criterion without a named, verifiable external benchmark. The criterion is comparative: it requires evidence of what others in the field earn, not simply evidence of what the petitioner earns. An attorney's opinion that the petitioner's compensation is high for the occupation, without a cited salary survey or federal database, does not provide the external reference the criterion requires.
Cross-national salary comparisons — arguing that the petitioner earns more than most practitioners worldwide, including those in countries with lower wage norms — are not effective. USCIS interprets the comparison group for others in the field with reference to U.S. market norms for the relevant occupation, not global norms. A petitioner whose salary exceeds the median for the occupation in another country but falls below the U.S. 75th percentile has not satisfied the criterion. The external benchmark must be anchored to U.S. wage data, and the BLS OEWS is the standard for meeting that requirement.
How to present borderline salary evidence
When total compensation falls between the 75th and 90th percentiles of OEWS data, the most effective approach is to calculate total compensation — including equity at documented fair market value and annual bonus — and compare that figure against the OEWS 90th percentile for base wages only. OEWS captures wages as defined by BLS, which includes bonuses but excludes equity. A petitioner whose base salary approaches but does not reach the OEWS 90th percentile threshold, but whose total compensation including equity and bonus clearly exceeds it, is presenting a materially stronger case than the OEWS comparison on base salary alone would suggest.
In occupations where OEWS undersamples the highest-paid positions — venture-backed technology startups, quantitative finance roles, specialized biomedical research positions — an expert letter from a compensation consultant or HR professional familiar with the relevant market can establish that OEWS understates actual compensation at the senior level and that the petitioner's package is consistent with top-tier compensation in the market even if it technically approaches rather than exceeds the OEWS 90th percentile. USCIS has accepted this supplemental expert testimony in cases where the expert's methodology is transparently explained and supporting compensation data is provided.
The high salary criterion is one of eight O-1A criteria, and meeting any three satisfies the evidentiary standard. A petitioner who falls short on high salary should assess whether a different criterion can be strengthened rather than committing significant additional resources to a salary argument that may ultimately be borderline. Adding a well-documented judging exhibit, upgrading the original contributions showing with a more thorough expert letter, or expanding the critical role narrative with independent organizational evidence is often a more efficient path to a strong petition than resolving a marginal salary comparison.
Building and auditing the high salary exhibit before filing
Before filing, verify three aspects of the salary exhibit. First, confirm the currency of the OEWS data: the annual OEWS release typically occurs in late March or April, so by mid-2026, the most recent release reflects 2025 survey data. Citing outdated wage data — particularly in high-growth occupational categories where wages are rising rapidly — produces a comparison that may understate the current 90th percentile and make the petitioner's salary appear stronger against an outdated threshold than against the current one. USCIS adjudicators have access to the same BLS website and can check the data independently.
Document the OEWS retrieval specifically. Print the BLS.gov OEWS results page as a PDF, noting the survey year, the selected SOC code, and the geographic area. The BLS website allows navigation by SOC code and by state or MSA, and the exhibit should show the full occupational wage table including all percentile breakpoints, not only the single threshold selected for comparison. An exhibit that cites BLS data in the cover letter without a printout of the actual wage table is more likely to generate an RFE on the salary criterion because the adjudicator cannot independently verify the cited figure from the exhibit alone.
If the compensation structure changes between the petition filing date and the anticipated employment start date — because the petitioner is transitioning to a new employer with a different compensation package — the exhibit should reflect the prospective employer's compensation, not the current or prior employer's. USCIS adjudicates the petition as filed, and the high salary showing must correspond to the employment the I-129 actually covers. A cover letter that discusses prospective compensation without a supporting employer-issued document leaves the showing incomplete and susceptible to an RFE on the salary criterion.
What we typically gather for this kind of case
| Document | Where to source | Why it matters |
|---|---|---|
| Peer-reviewed publications | Web of Science / Scopus exports | Anchors original-contributions and authorship criteria |
| Citation analysis | Google Scholar profile + ESI top-1% data | Quantifies major significance in the field |
| Salary benchmark | BLS OEWS for SOC code + locality | Documents high-salary criterion at 90th-percentile or above |
| Critical-role letters | Direct supervisor + program director | Establishes role's importance, not just title |
What we see go wrong, again and again
- 01Treating extraordinary ability as a credentials checklist rather than a story of field-wide impact.
- 02Submitting bibliometric data (h-index, citation counts) without explaining what makes those numbers high relative to peers in the same sub-field.
- 03Relying on letters from collaborators or co-authors rather than independent experts who can speak to influence.
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