How to prove Remuneration in O-1A, O-1B & EB-1A for Athletes, Coaches & Trainers
Remuneration is one of the eligibility criteria for O-1A, O-1B & EB-1A visas, of which, three need to be established in order to be approved for a visa. Remuneration is a commonly misunderstood category, that is often over argued, which can lead to many delays in preparing visa applications.
Due to our experience in preparing O-1A and O-1B petitions for both athletes and the supporting staff of athletes. We can offer a few tips to help save time. For the most part, we never include tax returns or full contracts in our arguments for O-1A, O-1B, and EB-1A visa petitions, especially when there is plenty of evidence online about the income of the applicant.
What evidence does USCIS consider for Remuneration Purposes for O-1A, O-1B, and EB-1A visas?
Here is text directly from a recent request for evidence where remuneration was not argued
Remuneration for O-1A, O-1B, and EB-1A visa applications
You may submit evidence showing the beneficiary has commanded, now commands, or will command a high salary or other substantial compensation.
The evidence to establish whether the beneficiary's compensation is high relative to others working in the field may take many forms. Examples may include but are not limited to:
Copies of contracts or similar reliable evidence;
Documents showing the beneficiary received a high salary or other significant forms of
compensation, for services in comparison to others in the field, which may include equity in lieu of cash;
A statistical comparison of the salaries in the beneficiary's field from a government or private institution or a similar organization. This should show that the beneficiary commanded a high salary, or other significantly high remuneration, for services compared to others in the field;
Geographical or position-appropriate compensation surveys and organizational justifications to pay above the compensation data;
The Bureau of Labor Statistics (BLS): http://www.bls.gov/bls/blswage.htm;
The Department of Labor's Career One Stop website:
http://www.careeronestop.org/SalariesBenefits/Sal_default.aspx;
The Department of Labor's Office of Foreign Labor Certification Online Wage Library: http://www.flcdatacenter.com;
Testimony from industry experts; and
Other corroborative evidence shows that the wage rate is high relative to others working in
the field.
Note: U.S. Department of Labor (DOL) prevailing wage rate information alone does not generally establish a salary or other remuneration is "significantly" higher than others in the field. If you submit DOL prevailing wage rate information, you should submit additional evidence showing that the wage rate is high relative to others working in the field (such as the examples above).
What exactly do we have to prove for remuneration and by which standard?
In immigration law, O-1A, O-1B, and EB-1A petitions are argued at the preponderance of evidence standard, meaning, more likely than not. Case law for this requirement is found below:
In visa petition proceedings, the burden is on the petitioner to establish eligibility for the benefit sought. See Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966). The standard of proof in most administrative immigration proceedings, and the one that is applicable in this case, is “preponderance of the evidence.” See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010. The “preponderance of the evidence” standard means that the petitioner must submit evidence that demonstrates his claim is “probably true.” The petitioner satisfies the standard of proof if the evidence leads the adjudicator to believe that the claim is “more likely than not” or “probably” (i.e., a greater than 50% likelihood) true (even though there might be some minor doubts). See U.S. v. Fonseca-Cardozo 480 U.S. 421(1987); see also USCIS Adjudicator’s Field Manual, Ch. 11.1(c). The adjudicator is to review the quality of the evidence to “examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.” If the adjudicator can raise a material doubt, then the adjudicator must provide an explanation of why the adjudicator believes the claim is probably not true. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010).
As an initial matter, we note that the appropriate standard of review for a nonimmigrant petition is a preponderance of the evidence, as affirmed by the Administrative Appeals Office (“AAO”) in Matter of Chawathe, 25 I. & N. Dec. 369 (AAO January 11, 2006), an “Adopted Decision.” In that case, the AAO held that the applicable standard of proof was the least stringent standard of proof, namely, a preponderance of the evidence:
In the case of arguing for remuneration, the applicant is responsible for proving, more likely than not, they have earned higher compensation, which does not have to be cash, in their field.
In practice, we find that the field does not include the entire world; but high compensation in their industry and in their location.
So a mixed martial arts fighter from Australia can prove that they were paid a higher salary than other mixed martial arts fighters from Australia, as opposed to all combat sports athletes all over the world.
What evidence can be used to prove remuneration in O-1A, O-1B and EB-1A cases?
While USCIS lists a lot of potential locations to find wage data, we prefer not to use any of those because they are often higher than where the visa applicant is located. In this case, we will use the example of Jessica Rose-Clark and MMA Fighter from Australia.
First, we look to see how much a mixed martial artist in Australia makes (unless results come in that are favorable in the US as well).
We google searched the following:
how much do mma fighters in "Australia" make
How much does the average mma fighter make
How much does the average professional athlete make in Australia?
To which we return the following:
https://www.comparably.com/salaries/salaries-for-mma-fighter-mixed-martial-arts-fighter
https://combatsportevents.com/how-much-do-mma-fighters-make/
https://www.shmoop.com/careers/mma-fighter/salary.html
https://au.talent.com/salary?job=sports
Here we find that comparing the salary of all mixed martial arts fighters and the salary of professional athletes as a whole in Australia is advantageous.
So, we can choose to compare the athlete's salary to $46,000 in the US.
Next, we find out how much Jessica-Rose Clark made through public information sources. Believe it or not, third party gossip websites can tip the scales for remuneration arguments, but admittedly, they are not the best resources. Better third-party sources come from reputable media outlets, publicly reported purse information, and figures from the event promoters themselves. In the circumstance for Jessica-Rose Clark, the O-1A petition would likely need actual tax returns or other information that corroborates her total income, not just bout income, to successfully argue the remuneration criteria.
https://thesportsdaily.com/news/jessica-rose-clark-career-earnings-fox11/
Women often underpaid in professional sports compared to male counterparts - O-1, O-1B, and EB-1A visa practice note
Note: Unfortunately, women are often underpaid in sports compared to their male counterparts. However, this can be used to the applicant's advantage when arguing for remuneration eligibility.
Let's look at the example of women being underpaid in mixed martial arts:
https://finchannel.com/why-female-mma-fighters-deserve-equal-pay/79622/people/2020/12/
Utilizing articles that show women are paid less than women in sports can help lower the threshold for proving remuneration.