Can your patent qualify as evidence in EB and O visa petitions?

March 25, 2020

The EB immigrant visa and the O non-immigrant visa are reserved for "extraordinary ability" workers who have demonstrated a high level of expertise in their respective field. Congress set a high benchmark for aliens of extraordinary ability by statutorily requiring extensive documentation of the alien’s achievements.  In recent years, the Trump administration has made the process more arduous as reflected in the nosediving approval rate for EB-1 extraordinary ability petitions from 88% in 2016 to 51% in 2019.  With the right strategy, applicants can fortify their qualifications through patents.

How Can A Patent Indicate Extraordinary Ability?

The government regulations for both the O and EB visas allow evidence of a foreign national’s original scientific, scholarly, artistic, or business-related contributions of major significance in the field to demonstrate extraordinary ability.  This can be demonstrated through patents.

1. Originality

USCIS has indicated that the issuance of a patent verifies the originality of a device or process. Named inventors, be they principal or contributing investors, of patented technology in the field of extraordinary ability can potentially satisfy the originality requirement.  Pending patent applications can still be utilized, but additional testimonials may be necessary from other experts in the field.

2. Major significance

The major significance of patented technology was recently considered by the Administrative Appeals Office (AAO) in 2018. For the uninitiated, the AAO is the judicial body that reviews whether USCIS correctly denied an O-1 or an EB-1 petition. AAO decisions are not necessarily binding on USCIS for all future cases, but its logic and rational can be very helpful in understanding how to craft a case to win the “major significance” argument.

In Matter of Z-L-, ID# 1034540 (AAO April 4, 2018) the AAO overturned a finding by USCIS that the petitioner had failed to show the major significance of their patented technology. The AAO based this on the evidence in the record, which included: intellectual property documents identifying the petitioner as an inventor on several patents, evidence of the commercialization of his inventions, and statements from experts confirming that they used the petitioner’s work to further their own.

As noted earlier this month, we have seen an increase in the frequency of requests for evidence (RFEs) with clear misinterpretation of the regulations. Unfortunately, the major significance of patented technology is no exception. Since this decision, we have seen USCIS RFEs seeking “evidence that the innovation is being widely utilized by others in the field, reaching far beyond your employer, clients, or customers.”  This highlights the inconsistency between USCIS and AAO decisions. The AAO believes the commercialization of patented technology, by itself, demonstrates major significance to the field.  Meanwhile, the USCIS that proprietary technology has been used by clients or customers does not necessarily rise to the level of significance to the field.

The USCIS standard places an unreasonably heightened burden on inventors to show the major significance of their patented technology – especially for entrepreneurs. After all, the purpose of securing a patent is to gain protection against widespread use of the proprietary technology, and failure to enforce a patent can risk losing the right to recover damages from the infringement. Under the USCIS standard, even the Apple employees named on the patented design on the iPhone would have failed to satisfy the “major significance” element of this criterion. If the named inventors had applied for a visa and allowed the widespread use of their patents, Apple may not have been awarded over $500 million in damages in their infamous patent litigation with Samsung. While the USCIS may push back, patented technology can be used to show extraordinary ability without foregoing damages for infringement. An experienced immigration attorney like our team at Accel can help you identify evidence and will fight on your behalf against USCIS errors. Contact us here to arrange a consultation and analysis of your case.

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