Can startup equity count toward the O-1A high salary criterion?

Founders and early employees often take a modest salary and hold most of their compensation in stock. That raises a question when preparing an O-1A petition: does the high salary criterion look only at cash, or can equity count? This guide answers it from the regulation, the USCIS Policy Manual and government wage data, then shows how to value and document equity so an officer can weigh it.

It is written for founders, startup executives, senior engineers and researchers whose pay is weighted toward equity. Figures checked October 2026. For the other seven criteria, see our guide to all eight O-1A criteria.

What does the O-1A high salary criterion actually say?

The O-1A criterion asks for evidence that you have either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence. That is the full text of 8 CFR 214.2(o)(3)(iii)(B)(8), and three features of it matter for anyone paid in equity.

• Other remuneration is broader than salary. Pay for services does not have to arrive as cash through payroll. Stock options, restricted stock units and bonuses are remuneration.
• Will command looks forward. A signed offer letter or employment agreement that sets future compensation is evidence, which helps someone joining a company or stepping into a new role.
• The O-1A text has no comparison clause. It does not say significantly high, and it does not say in relation to others in the field. Both phrases appear in the EB-1A version.

The word high still implies a comparison, so in practice the petition needs a benchmark. The O-1A version is the only one of the three that neither requires a comparison in its text nor adds a qualifier such as substantial or significantly, as the table shows.

A founder paid less than the $135,980 national median for software developers can still be compensated well above the 90th percentile. The criterion asks what the market pays for your services, not what runs through payroll.

Two ways startup equity can count

Equity can enter the petition through the criterion itself or as comparable evidence, and the right route depends on how you received the shares.

Route 1: equity as remuneration for services

Stock options, restricted stock units and restricted stock granted under an offer letter, an employment agreement or a board-approved equity plan are compensation for services. They fit the criterion's own words: other remuneration for services, evidenced by contracts or other reliable evidence. This route suits a hired executive or an early engineer whose package mixes cash and equity.

Route 2: founder holdings as comparable evidence

Founder shares are different. They are usually bought for a nominal price at incorporation rather than granted as pay, so calling them remuneration can be a stretch. The regulations allow comparable evidence when a criterion does not readily apply to the occupation, at 8 CFR 214.2(o)(3)(iii)(C), and USCIS uses this exact situation as its example. The Policy Manual says that if the petitioner demonstrates that receipt of a high salary is not readily applicable to the beneficiary's position as an entrepreneur, "the petitioner might present evidence that the beneficiary's highly valued equity holdings in the startup are of comparable significance to the high salary criterion."

Comparable evidence needs an explanation, not just a substitution. The Policy Manual rejects a general unsupported assertion that a criterion does not apply, and it states that comparable evidence does not change the standard for the classification. The petition should explain why a founder's cash salary is set by the company's stage, runway and investor expectations rather than by the market value of the founder's work, and then show that the holding is highly valued.

How should startup equity be valued in the petition?

Use the most objective value available, state the method, and do not mix methods. The strongest numbers come from third parties: an independent appraisal, a priced financing or an actual sale.

An independent appraisal receives the 409A presumption of reasonableness only if it is dated no more than 12 months before the transaction it values, so an old report weakens the exhibit. The table compares the common valuation bases.

Vested, unvested and annualized value

State how much of a grant has vested and present a per-year figure next to the total. A grant that vests over several years pays for several years of work, so the fair comparison with annual wage data is the value vesting each year, or the grant value divided by the vesting period. Setting a full multi-year grant against a single year of wage data overstates the case and invites a request for evidence. Unvested equity under a signed grant can still support the will command language, as long as the schedule is shown.

Tax records that corroborate value

Tax filings are reliable because they were created for another purpose. An 83(b) election must be filed no later than 30 days after the stock is transferred, and it records the value at that date. Incentive stock options are capped at $100,000 of stock, valued at grant, first exercisable in a calendar year, so larger grants appear partly as nonqualified options. Wage income from vested restricted stock units or exercised nonqualified options shows value actually received.

What counts as high? Benchmarks from government wage data

There is no salary threshold in the O-1A regulation, so high is shown by comparison with others in your occupation, ideally in your area. The Bureau of Labor Statistics Occupational Employment and Wage Statistics survey is the standard government source. For six occupations founders and technical leaders most often fall under, the national 90th percentile in May 2025 ran from $199,130 to $507,730.

The spread between the median and the 90th percentile is widest for chief executives, where the 90th percentile is 2.37 times the median, against 1.58 times for software developers. The chart shows four of the occupations; IT managers here are computer and information systems managers.

Location matters

Pay varies sharply by metro area. In the San Jose-Sunnyvale-Santa Clara area, the May 2025 median for software developers was $213,110, 56.7% above the national median, and the 90th percentile was $289,150. USCIS guidance for the EB-1A version of this criterion points to geographical or position-appropriate compensation surveys, and matching the area and role is the safest approach for an O-1A as well.

Many petitions aim to place total compensation at or above the 90th percentile for the occupation and area. That is a practical target, not a rule; nothing in the regulation or the Policy Manual names a percentile.

Illustrative profile

Illustrative profile: a seed-stage CTO in San Jose with a cash salary below the local software developer median, holding common stock granted under a board-approved plan that vests over several years, with a recent independent 409A appraisal and a priced seed round led by institutional investors. A clear exhibit would:

1. Present the cash salary with pay records.
2. Value the current year's vesting tranche at the 409A price, not the preferred price.
3. Add the two for an annualized total.
4. Compare that total with San Jose data for software developers and for computer and information systems managers, whose local 90th percentile was $377,060.
5. If the total still falls short, present the full holding as comparable evidence, with the investor documents behind its value.

The profile is fictional and shows method only, not an outcome.

Step by step: building the equity compensation exhibit

A strong exhibit moves from contract to value to comparison.

1. Choose the route. Equity granted for services goes under the criterion. Founder holdings usually go under comparable evidence, with a written explanation of why salary does not fit the role.
2. Collect the contracts. Offer letter or employment agreement, equity plan, board consents approving grants, grant notices, the vesting schedule and a current cap table showing fully diluted ownership.
3. Establish value. The most recent 409A report, financing documents for the last priced round such as the term sheet and stock purchase agreement, and any secondary sale agreements.
4. Corroborate with tax records. An 83(b) election, Form W-2, Form 3921 for incentive stock option exercises and broker statements for sales.
5. Annualize and compare. Compute the annual value and compare it with OEWS percentiles for the matching occupation and area.
6. Add a letter from someone who set the pay. A board member, lead investor or compensation committee chair can explain how the package was set and what the market rate for the role is.
7. Tie it to the rest of the record. The exhibit is strongest when it reinforces other criteria, such as a critical role at a distinguished organization.

What filing costs and how long it takes

With premium processing, the government fees for a standard employer filing an O-1 petition total $4,620 as of October 2026: $1,055 for Form I-129, a $600 Asylum Program Fee and $2,965 for premium processing.

Premium processing rose by $160 on March 1, 2026, from $2,805, and commits USCIS to act within 15 business days. Small employers pay a $300 Asylum Program Fee and nonprofits pay none, and both pay half the I-129 fee. An approved O-1 can be valid for up to 3 years, with extensions in increments of up to 1 year. That matters for equity: a vesting schedule that runs through the petition period supports the claim that you will command that compensation. Our page on how the process works covers preparation time.

Demand for the visa has recovered and grown. The State Department issued 19,457 O-1 visas in FY 2024, up 9.6% from 17,751 in FY 2019, while 1,212 applications, 5.9% of the total, remained refused at year end. These counts include O-1A and O-1B visas issued at consulates, and not people who changed status inside the United States.

How it changes by field

Founders and startup executives

Founders usually rely on the comparable evidence route, because founder shares are rarely granted as pay. The strongest founder exhibits pair a credible valuation, such as a priced round led by recognized investors, with ownership shown on the cap table and a letter from a lead investor explaining why the founder's salary is held down. Our page for founders and startup executives covers the other criteria founders tend to meet.

Engineers and tech professionals

Engineers at public or late-stage companies have the easiest case: restricted stock units have a market or recent tender price, and W-2 wages already include vested value. Total compensation can then be compared with the 90th percentile of $214,670 for software developers nationally, or the $289,150 figure for San Jose. See our page for engineers and tech professionals for how salary pairs with critical role and contributions.

Researchers and scientists

Academic salaries are rarely high against industry data, so researchers often skip this criterion. When it does fit, it is usually through other remuneration: equity in a university spinout, paid scientific advisory roles or consulting fees. Compare those with research occupations, where the national 90th percentile for computer and information research scientists was $230,630. Our page for researchers and scientists covers the criteria that usually carry a research record.

Artists and creatives

Artists file under the O-1B, where the equivalent criterion asks for substantial remuneration in relation to others in the field. Equity in a studio or production company can count as remuneration, but fees, royalties and contract terms are more common evidence. See our page for artists and creatives.

Mistakes that weaken an equity-based salary claim

• Multiplying the post-money valuation by your ownership. Applying the preferred price to common stock overstates value, and an officer who checks the 409A report will see the gap.
• Comparing a multi-year grant with one year of wages. Annualize the grant or show the current year's vesting.
• Relying on a stale appraisal. A 409A report older than 12 months loses its safe harbor and invites questions.
• Calling founder shares salary without explanation. Use comparable evidence and explain why salary does not fit the role.
• Benchmarking against the wrong occupation. A CTO compared with the software developer median, or a chief executive with no area adjustment, makes the comparison easy to discount.
• Converting foreign pay loosely. State the exchange rate and date, and compare with data for the country where the pay was earned.
• Treating one criterion as the whole case. Meeting a criterion is the first step; the record is then weighed as a whole, as explained in the two-part review.

Frequently asked questions

Is there a minimum salary for the O-1A?

No. The regulation asks for a high salary or other remuneration for services but sets no dollar amount or percentile. In practice, the petition compares your pay with government wage data for your occupation and area. Many petitions aim at or above the 90th percentile, but that is a working target rather than a legal requirement.

Do unvested stock options count toward the high salary criterion?

They can support it. The O-1A criterion includes salary or remuneration you will command, so a signed grant with a vesting schedule is relevant evidence. Present vested and unvested amounts separately, value them on a stated basis such as the latest 409A price, and annualize the figure so it compares fairly with yearly wage data.

Can a SAFE or convertible note establish what my equity is worth?

Only indirectly. A SAFE or convertible note shows investor confidence and sets a cap on a future conversion, but it does not set a price per share until a priced round happens. It is useful supporting evidence alongside a 409A appraisal, a priced round or a secondary sale, not a substitute for them.

Can my own company file my O-1A petition?

Yes. USCIS guidance updated on January 8, 2025 confirms that a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file the petition. The company still has to meet the petitioner requirements, and your equity in it can then be part of the evidence for this criterion or for comparable evidence.

Will the same equity evidence work for an EB-1A later?

Partly. The EB-1A criterion requires a significantly high remuneration in relation to others in the field and looks at what you have already commanded, so future vesting carries less weight. USCIS gives the same equity holdings example for EB-1A comparable evidence, so a well documented O-1A exhibit is a strong starting point.

Should equity be shown at the preferred share price or the common share price?

Use the price that matches the shares you hold. Founders and employees usually hold common stock, which is valued by the 409A appraisal. The preferred price from the last round can be shown as context for the company's valuation, but labeling it as the value of common stock overstates the claim.

Talking it through

Whether your equity belongs under the high salary criterion, under comparable evidence or outside the petition entirely depends on how you hold it and what the rest of your record shows. In a consultation, we review your grants, valuations and pay records, choose the benchmark that fits your role and area, and map the remaining criteria. If you are weighing a green card later, the EB-1A uses a stricter version of this criterion, and we plan for both.

When the record is ready, we prepare the full petition, and it is reviewed, signed and filed by an independent licensed immigration attorney. To start, book a consultation.

Sources

1. eCFR, 8 CFR 214.2(o), O-1 evidentiary criteria and validity (current as of October 20, 2026)
2. eCFR, 8 CFR 204.5(h), EB-1A evidentiary criteria (current as of October 20, 2026)
3. USCIS Policy Manual, Volume 2, Part M, Chapter 4, O-1 Beneficiaries (accessed October 2026)
4. USCIS, Policy Manual update on extraordinary ability, January 8, 2025
5. USCIS Policy Manual, Volume 6, Part F, Chapter 2, Extraordinary Ability (accessed October 2026)
6. Federal Register, Adjustment to Premium Processing Fees, 91 FR 1059 (January 12, 2026)
7. eCFR, 8 CFR 106.2, USCIS fees including Form I-129 and the Asylum Program Fee
8. eCFR, 8 CFR 106.4, premium processing timeframes
9. eCFR, 26 CFR 1.409A-1, valuation of service recipient stock
10. eCFR, 26 CFR 1.83-2, section 83(b) election timing
11. eCFR, 26 CFR 1.422-4, $100,000 limitation for incentive stock options
12. Bureau of Labor Statistics, Occupational Employment and Wage Statistics, national, May 2025
13. Bureau of Labor Statistics, Occupational Employment and Wage Statistics, San Jose-Sunnyvale-Santa Clara, May 2025
14. U.S. Department of State, Worldwide NIV Workload by Visa Category, FY 2019 to FY 2024