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Protecting Your Intellectual Property Is Good For Business And Good For U.S. Immigration

If you have a business in the United States, and want to bring in an employee from abroad as an E-1 (treaty trader), E-2 (treaty investor), L-1A (managerial or executive transferee), L-1B (specialized knowledge), O-1 (alien of extraordinary ability) or H-1B (temporary professional), the protection of your business’s intellectual property by having trademarks, patents, copyrights or trade secrets, will help you get your E, L, O or H-1B petition approved.

First, if you have just started a new business, or you have an ongoing small business, you want to show USCIS that your business is sufficiently capitalized and has enough assets to be able to continue operating and pay your future employee an appropriate wage. If you are sponsoring an H-1B, you must prove to USCIS that your company is able to pay the prevailing wage. For other work-related visas, such as Es, Ls, or Os, the employer needs to show that it has enough income and assets to be able to pay the employee for the full period of time requested. For an E-2 (treaty investor), you have to show a substantial investment in the business, and IP can be included as part of your total investment in the business. Trademarks, patents and copyrights are assets and can be included when you are calculating the assets of your firm. For example, computer programs and databases can be copyrighted or patented, if you have your own proprietary software product. If you have a fashion design company, you can copyright your special and unique patterns and designs. Even though it may be difficult to prove the monetary value of your IP protected assets if they are new or you are just starting out, it creates the perception of value.

Second, in the case of H-1B or L-1B employees who will work at your client’s work site, and not at your own firm’s offices, you need to show that you, the petitioning employer, control your employee’s work and that your client is not directing your employee. If the employee is implementing the company’s own proprietary product, for which you have IP protection, be it copyright or patent or even if you have trademarked the name of your product, then you can show that it is your firm that is supervising your employee, because it is your firm that has knowledge of its own proprietary product, and not the client.

Third, when sponsoring an employee as an L-1B (specialized knowledge worker), the company must show that the employee has special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. While USCIS keeps repeating that it is not necessary that the sponsoring company have proprietary products of which the employee has specialized knowledge, the fact of the matter is that a company with its own proprietary products protected by patents, copyright, trade secrets and trademarks, has a much better chance of getting its L-1B petition approved than a company which either does not bother to protect its IP or else does not have any proprietary products. For example, a fashion design company may sponsor for the L-1B an important designer who has been working for the company abroad and is responsible for many of its special designs to come to the U.S. If the fashion company has copyrighted its particular designs and patterns, has design patents for its shoes, handbags and jewelry, or has certain lines which have been trademarked or have a certain trade dress, the chances of having the case approved is higher. Another example would be an engineering company, which has its own patents for particular machinery it has developed, which wants to bring one of its engineers from abroad, who is highly experienced in the patented machinery.

A similar category to the L-1B specialized knowledge worker is the E-1 or E-2 essential skills worker, where the company has to show the employee has a certain expertise and unique skills.   The employer has to show that US workers do not have these particular skills and expertise. An employee who has expertise and experience in proprietary products of the employer which are protected by copyright, patents, trademarks or as trade secrets, has a much better chance of having their petition or visa application approved than does a similar application by a company which does not protect its intellectual property. E-1 includes trade in services, which may include for example, a fashion or creative company abroad, which licenses its copyrighted products, or brand of fashion and apparel in the U.S., for manufacturing, marketing and distribution.

Thus, companies wanting to bring professional or highly-skilled employees to the U.S. stand a much better chance of having their petitions approved in many situations if they have protected their intellectual property. Companies who want to protect their intellectual property should always consult with an experienced IP attorney.

August 2016 State Dept. Visa Bulletin Shows Retrogression in Worldwide EB-2

The August 2016 State Department Visa Bulletin shows that the worldwide EB-2 preference (for jobs that require at least a masters degree, or a bachelor’s degree plus five years experience) has retrogressed to February 1, 2014, a backlog of about two and a half years. However, in spite of the retrogression, applicants are still able to file their adjustment applications regardless of their priority date, although they will not be able to receive their green cards unless their priority dates are February 1, 2014 or earlier.

The worldwide EB-3 category continues to be current for filing and with only a very short backlog for receipt of the green card set at March 15, 2016.

From June to August 2016, EB-2 for India has advanced from October 1, 2004 to November 15, 2004, and EB-3 for India has advanced from September 22, 2004 to November 8, 2004. Thus, there is currently very little difference in the priority dates for EB-2 and EB-3 India. For August 2016, EB-2 and EB-3 China are both exactly the same, stuck at January 1, 2010, the same as it has been for the past two months. For the Philippines, EB-2 is at the same priority date as for the worldwide category, at February 1, 2014, but EB-3 is backlogged to May 15, 2009, a wait of more than seven years.

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