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

    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.

  • The New Age of RFEs

    The Request for Evidence (RFE) is intended to be a valid inquiry into one or more aspects of a foreign national’s petition or application to USCIS.  A reviewing officer may ask for documents that might have been mistakenly omitted or they may request additional supporting evidence to further ascertain how an applicant meets the regulated visa criteria.  With the current presidential administration, there has been a marked increase in RFEs and denials.  While there have been no new laws or regulations passed that have changed the qualifying criteria for various nonimmigrant and immigrant visas, there have been several policy changes affecting the USCIS review process that have opened the door for this increase in RFEs across all visa categories. 

    Buy American, Hire American Executive Order

    In April of 2017, President Trump signed an Executive order entitled “Buy American, Hire American” with the intent to create higher wages, increase employment for U.S. workers, and “to protect the interests of the United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” (Presidential Executive Order)  This order specifically targets the H-1B visa program which was immediately impacted.  According to the National Foundation for American Policy (NFAP), USCIS produced RFEs in the 4th quarter of FY2017 nearly equal to the total number of RFEs for the combined first three quarters of FY2017 (National Foundation for American Policy).  This aggressive H-1B review process has continued, resulting in a current H-1B denial rate that has quadrupled since 2015.

    Rescinding the Deference to Prior USCIS Determinations

    In October of 2017, USCIS issued a Policy Memorandum that it would rescind its policy regarding the deference to prior approvals for nonimmigrant petitions, when adjudicating renewals or extensions for these same cases.  (PM-602-0151)  This change means that renewal or extension of a petition that has received prior approval is now reviewed with the same scrutiny as a completely novel petition – even if there is no new evidence since the prior filing.  Previously, if there were no material changes in a case, USCIS would defer to the prior approval ruling as the beneficiary was not required to reprove the merits of the case.  The shift in policy obliges applicants to resubmit documentary evidence that has already been reviewed and approved by USCIS, resulting in unnecessary paper production as well as increased time spent by USCIS in the adjudication process.  As officers are pressed for time to review more and more petitions, they are likely to disregard or overlook evidence.  This results in an RFE for clarification or supporting documentation that may have been already been included in the filing.

    Misinterpretation of Regulated Criteria

    There has also been a noticeable change in the way USCIS officers interpret the regulated criteria.  With O-1 visas, for example, USCIS has been interpreting criteria far more strictly than ever and disallowing evidence that had generally been acceptable in the past.  Regarding the standard for “Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought” (O-1 Eligibility, EB-1 Eligibility), USCIS used to accept media about the foreign national’s work even if they were not directly named in the article.  We are now seeing more and more RFEs disqualifying this evidence because the applicant is not specifically mentioned in the media. 

    Similarly, supporting documentation for command of a high salary (for both O-1 and EB-1 visas) has been held to an unduly high standard over the past several years.  Not only does USCIS now require extensive field-specific wage comparisons and detailed employment agreements, RFEs often include language that discredits the evidence because the beneficiary’s wage is not at the very highest end of the wage range.  This is a clear misinterpretation of the regulation.  Many applicants legitimately satisfy this criterion since they earn an annual wage that is significantly higher than the average wage for their position and geographic location – they need not earn the highest possible wage.

    Over the past few years, there has also been an increase in the seeming randomness of RFEs.  Evidence that once met the regulatory standard is now often excluded through technicalities or simply ignored.  Additionally, applicants are frequently held to a higher industry standard than what the regulations imply.  In some cases, RFEs include incorrect information about the petitioner, beneficiary, or evidence provided.  It’s reasonable for USCIS officers to use templates for RFEs; however, when an RFE references an incorrect job title or field of expertise or erroneously comments on evidence, one can’t help but question the officer’s full attention to the review process. As such, even the most well-deserving and thoroughly prepared cases can receive RFEs for seemingly arbitrary rationale.  Whether it’s providing additional supporting documentation or “respectfully” clarifying evidence submitted in the initial filing, the timely response must be comprehensive in addressing all issues raised in the RFE.  Receipt of an RFE can be intimidating (and, sometimes, infuriating) but the key is to remain calm and connect with an experienced immigration attorney to determine the best response strategy.  Accel Visa Attorneys is on top of trending RFE issues for all visa types – contact us for more information.

  • Exploring the O-1 Visa as an Alternative to the H-1B

    As H-1B season approaches, employers and potential foreign employees may be finding it difficult to maintain a positive outlook. For those of you who attended today’s USCIS webinar on the H-1B online registration process, it’s obvious the USCIS is still working through many uncertainties surrounding the new H-1B registration process. When you factor in the rising incidences of denials by USCIS and issuing requests for evidence (RFE), it’s no wonder employers are exploring other non-immigrant visa options.

    While the preparation for the H-1B petition is relatively straightforward, USCIS statistics show that H-1B RFEs and denials have increased significantly over the past several years. The denial rate for new H-1B petitions has jumped from 6% in FY 2015 to a whopping 32% in FY 2019 (through the second quarter). Between FY 2010 and FY 2015, you’ll observe that H-1B denials rates never exceeded 8%. Today, the rate has quadrupled to 32%.

    Given the current landscape, it’s worthwhile for employers to explore alternative work options for their employees. The O-1 visa offers advantages for work authorization that are worth considering.

    The O-1A Visa
    The O-1 visa is an employment-based temporary work visa reserved for individuals who can demonstrate “extraordinary ability” in the sciences, business, athletics, or arts. Employers may submit the O-1 petition any time during the year to ask for an initial three years of work authorization. The best part is there is no annual O-1 quota or O-1 “lottery” to deal with.

    One of the challenges though, is proving an employee’s qualifications for an O-1 visa. Employees must be able to demonstrate they have “risen to the top of the field” through various categories such as having:

    • Received top honors or awards for their work;
    • Been a member in prestigious organizations;
    • Served as a peer judge or reviewer;
    • Authored articles in their area of expertise;
    • Publications about themselves or their work;
    • Been employed in a critical role for distinguished organizations; and,
    • Received high remuneration.

    While the list may appear intimidating, many employees in specialized fields, especially those who have a masters degree or higher, have already published their work in the industry, have co-authored patents, and have made significant original contributions in their field which can qualify them for the O-1 visa.

    One advantage of the O-1 visa that is often overlooked by employers, is how much of a competitive edge the O-1 visa offers. While there is indeed more effort that goes into preparing a strong and approvable O-1 petition, the benefits are much higher to the company in the long term. Employers who pursue an O-1 visa for their employees benefit from recruiting “aliens of extraordinary ability.” They signal to candidates that the company is open-minded, can think outside-the-box, and willing to explore opportunities that will help the company grow. It may also signal the possibility the company would apply that same logic for greencard options as well. Companies who can distinguish themselves from competitors by exploring immigration options for candidates will probably fare better when it comes to recruiting that highly sought-after candidate.

    Therefore, it is well worth the effort to explore all options with an experienced immigration attorney, particularly a team with years of experience assessing and drafting O-1 visa petitions. Contact Accel Visa Attorneys to learn which visa best suits your needs.