By Heidi J Meyers
Immigrant entrepreneurs need to protect their IP, not just to fortify your immigration petitions but also for your future success in the U.S. For those in creative fields, your intellectual property (IP) may constitute almost the entire value of your business.
Trademarks, patents and copyrights are important not just for your immigration status, but for the success of your business and career. Employers who protect their intellectual property (IP) will have an edge in getting their immigration petitions on behalf of foreign employees approved.
Immigrants coming to the U.S. for work or business need to protect their intellectual property. A patent protects inventions. Inventions are technological advancements that are useful, new and not obvious. A copyright protects original works of authorship, including literary works, graphic, plastic, musical, dramatic, audio and visual creations. Computer programs can also be copyrighted. A trademark identifies your brand, and signifies the origin of the merchandise or services.
The US Patent and Trademark Office (USPTO) is the US government agency in charge of trademarks and patents. If you want to file a trademark on your own, without an attorney, you will have to prove your identity through ID.me. Foreign nationals who reside abroad must use a U.S. lawyer, and are prohibited from filing with the USPTO on their own. See, Examination Guide 4-19 (Revised) Requirement of U.S.-Licensed Attorney for Foreign-Domiciled Trademark Applicants and Registrants (September 2019).
Additionally, the trademark application form, at the beginning, asks if the owner of the mark is a U.S. citizen. Foreign nationals should generally use US lawyers to file their trademarks on their behalf. In order to register with the USPTO as an attorney, you must be admitted to practice and provide your bar registration number for the state you are licensed in. Thus, foreign lawyers with an LLM but no bar license will be unable to represent clients and file trademarks on their behalf.
The USPTO initiated an identity verification process in response to scammers from China, Pakistan and other countries filing numerous trademark applications using false information. See, https://www.uspto.gov/blog/director/entry/safeguarding-the-trademark-community-against. In order to file a trademark application with the USPTO, you must initially verify your identity with ID.me using a government-issued identity document and undergoing facial recognition. This only has to be done once.
Foreign nationals who want to start a business or work in the United States, increase their chances of getting their immigration application approved, and also increase the chances of success of their business and/or career by protecting their intellectual property. It is equally important for companies sponsoring foreign employees. For 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), demonstrating that you have IP will help you get your E, L, O or H-1B petition approved. It is even more crucial when applying for the NIW (National Interest Waiver) or EB-1A (alien of extraordinary ability) for the green card.
First, if you are a foreign national seeking an NIW or EB-1A, protecting your IP will help you prove the innovations and contributions you have made in your field. For the NIW (National Interest Waiver), showing that you have patents, trademarks and copyrights helps to prove that you are well-positioned to advance the proposed endeavor.
Second, 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 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.
Third, 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.
Fourth, 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 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, both immigrants and their company sponsors stand a better chance of having their immigration petitions approved if they have protected their intellectual property. Moreover, for you and your business’s long-term success in the U.S., you need to register your trademarks, copyrights and patents, and protect them vigorously.