Patent Experience

 1. H-1B visa is a nonimmigrant visa that allows an H-1B specialty occupation worker to be admitted for a period of up to 3 years with up to 1-year increments, up to six years overall, with H-1B extension beyond the sixth year under certain circumstances.

2. The H-1B program allows companies and other employers in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in a directly related specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. H-1B specialty occupations may include fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

3.H-1B Cap

The H-1B classification has an annual numerical limit (cap) of 65,000 new statuses/visas each fiscal year (with certain deductions and additions based on H-1B1 set asides and usage). An additional 20,000 petitions filed on behalf of beneficiaries who have earned a master’s degree or higher from a U.S. institution of higher education are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities, a nonprofit research organization, or a government research organization, are not subject to this numerical cap.

4. Transition to Green Card by H-1B visa holder 

H-1B visa holders can apply for Green Card through the EB-2 category as H-1B visa holders require employer sponsorship unless they qualify for a National Interest Waiver (NIW). Here’s a step-by-step guide to the process:

Step 1: Determine Eligibility for EB-2

EB-2 Has Two Main Subcategories:

a. Advanced Degree:

You must have a U.S. master’s degree (or higher) OR a foreign equivalent.

If you have only a bachelor’s degree, you must also have at least five years of progressive work experience in the field.

b. Exceptional Ability:

You must demonstrate exceptional ability in your field (science, arts, or business).

You need to meet at least three of the following: 

(i) A degree or diploma in your field.

(ii) 10+ years of work experience.

(iii) A professional license.

(iv) A high salary indicating exceptional ability.

(v) Recognition in your field.

(vi) Membership in professional organizations.

c. If you qualify under "Exceptional Ability," you may be eligible for a National Interest Waiver (NIW), allowing you to self-petition (without employer sponsorship).

Step 2: Employer-Sponsored EB-2 (Regular Route)

If your employer is sponsoring you, follow these steps:

(i) . PERM Labor Certification (ETA Form 9089)

Your employer must file for PERM (Program Electronic Review Management) labor certification with the U.S. Department of Labor (DOL).

This process ensures that: 

No qualified U.S. workers are available for your job.

Your wage meets the prevailing wage rate.

Processing time: 6-12 months.

(ii) Form I-140 (Immigrant Petition for Alien Worker)

After PERM is approved, your employer files Form I-140 with USCIS to classify you as an EB-2 worker.

If your priority date is current, you can move to the next step.

Processing time: 4-9 months (premium processing available for faster approval).

(iii) . Wait for Visa Bulletin (Check Priority Date)

Check the Visa Bulletin (published monthly by the U.S. Department of State).

If your priority date is current, proceed to I-485 Adjustment of Status.

(iv) . File Form I-485 (Adjustment of Status)

Once your priority date becomes current, you file Form I-485 to adjust status from H-1B to Green Card.

At this stage, you can also apply for: 

Employment Authorization (EAD)

Advance Parole (AP) (to travel abroad while waiting)

Processing time: 6-18 months.

(v) . Biometrics and Interview (If required)

You may need to attend a biometrics appointment and an interview before final approval.

(vi) . Green Card Approval

Once your I-485 is approved, you receive your Green Card in the mail.

Step 3: EB-2 National Interest Waiver (NIW) Route (Self-Petition)

If you qualify for NIW, you can skip employer sponsorship and the PERM labor certification process.

You must show that your work benefits the U.S. in areas like science, technology, business, or research by satisfying NIW Requirements (Dhanasar Standard).

To qualify, you must prove:

(i) Your work has substantial merits and national importance (e.g., medical research, AI, renewable energy).

(ii) You are well-positioned to advance the work (e.g., strong credentials, published research, patents).

(iii) Waiving labor certification benefits the U.S. (i.e., your work is so valuable that waiting for a job offer would slow progress).

Steps for NIW Application

(iv) File I-140 (Self-Petition)

Submit strong evidence (research papers, recommendation letters, awards).

No employer is required.

Processing time: 6-12 months (premium processing now available).

Wait for Priority Date to Become Current

If a visa is available, move to the next step.

File I-485 (Adjustment of Status)

Same process as employer-sponsored EB-2.

5. Key Considerations

(i) Employer-Sponsored EB-2 is the fastest option if your employer is willing to support you.

(ii) EB-2 NIW is ideal if you work in a field of national importance and don’t want to rely on an employer.

(iii) Premium Processing is now available for I-140 petitions (including NIW), reducing wait times.

(iv) Maintaining H-1B Status: You can continue working on H-1B while your Green Card is pending.

6. Filing a U.S. patent can be a strong piece of evidence when applying for a Green Card under the EB-2 Exceptional Ability or National Interest Waiver (NIW) categories. 

Here’s how you can demonstrate exceptional ability using a patent:

Step 1: Understand the EB-2 Exceptional Ability Criteria

To qualify under Exceptional Ability, you must meet at least 3 out of 7 USCIS criteria:

(i) Academic degree related to your field.

(ii) 10+ years of full-time experience in the field.

(iii) Professional license/certification (if required for your field).

(iv) Evidence of a high salary.

(v) Membership in professional associations.

(vi) Recognition for achievements (awards, patents, publications, media coverage).

(vii) Other comparable evidence. 

A U.S. patent can support criteria #6 and #7. If your invention has received recognition, funding, or commercialization, it can further strengthen your case.

Step 2: How to Use a U.S. Patent to Demonstrate Exceptional Ability

A U.S. patent can serve as evidence of your contribution to your field. To maximize its impact, provide supporting documents such as:

(i) . Official USPTO Patent Grant

Submit the patent number and official documentation from the United States Patent and Trademark Office (USPTO).

(ii) If the patent is pending, include a USPTO filing receipt.

(iii) Patent Citations & Industry Recognition

If your patent has been cited by other patents, researchers, or companies, this shows its impact and significance. Use Google Patents or USPTO databases to track citations.

(iv) . Commercialization & Licensing Agreements

If your patent is being used in a product, licensed, or generating revenue, this can prove its practical impact.

(v) Provide contracts, royalty agreements, or business revenue reports.

(vi) . Media Coverage & Industry Adoption

If your patent has been featured in news articles, scientific journals, or industry reports, submit copies as evidence.

(vii) Show awards, grants, or recognition received for your invention.

(viii) Employer or Expert Letters of Support

Obtain letters of recommendation from industry experts, company executives, or researchers explaining: 

The importance of your patent.

How your invention contributes to the field.

Why your expertise is critical to U.S. innovation.

Step 3: Strengthen Your EB-2 or NIW Petition Using the Patent

If applying for EB-2 with Employer Sponsorship

Your employer must demonstrate that your work is crucial to the company's success.

Your patent supports the PERM labor certification by proving your unique qualifications.

Step 4. If applying for EB-2 National Interest Waiver (NIW)

A patent directly supports your NIW petition by proving that: 

Your work has substantial merits and national importance (e.g., healthcare, AI, clean energy).

You are well-positioned to advance the work (patent ownership, commercialization, industry recognition).

Waiving the job offer requirement benefits the U.S. (your invention is uniquely valuable).

7. Example of Using a Patent for NIW

Case: AI-Based Medical Device Patent

(i) Patent: AI-driven diagnostic tool for early cancer detection.

(ii) Impact: Recognized in medical journals, adopted by hospitals.

(iii) Evidence Provided: 

USPTO patent grant certificate.

Citation by three other medical technology patents.

(iv) NIH funding received for further research.

(v) Media coverage in healthcare industry magazines.

(vi) Letter from oncology experts confirming its impact.

Conclusion: The applicant demonstrated exceptional ability and national interest, strengthening their NIW petition.

8. Can an H-1B visa holder use US Patent to get funding and set up his own start-up?

Yes, as an H-1B visa holder can use a U.S. patent to attract funding and start a business, but there are legal restrictions you need to navigate carefully. 

9. Challenges of Starting a Business on H-1B 

H-1B visa holder is legally tied to his/her sponsoring employer. This means:

H-1B visa holder cannot "work" for his/her own startup.

But, H-1B visa holder can be a passive investor in a company.

To actively run the company, a startup must sponsor a new H-1B visa or Green Card for its founder.

10. The steps of Starting a Business while on H-1B visa.

Step 1: Use Patent to Attract Investors

A patent is an intellectual property (IP) asset that can help you:

(i)Attract venture capital (VC) or angel investors.

(ii) License the patent to companies or startups in exchange for royalties.

(iii) Form partnerships with corporations or research institutions.

(iv) Key Consideration: H-1B visa holder/ startup founder can own equity in a company but cannot work for it unless authorized.

Step 2: Setting Up a Startup While on H-1B.

If you want to launch a startup, you have three options:

(i) Option 1: Stay Passive (No Employment)

You register the company as a founder but only act as an investor.

You hire U.S. employees to run operations.

You cannot work on day-to-day activities (e.g., management, decision-making).

Allowed: Owning stock, investing money.

Not Allowed: Signing contracts, hiring/firing, leading strategy, developing products.

(ii) Option 2: Get a Concurrent H-1B from Your Own Startup

Your startup can sponsor you for an H-1B visa (in addition to your existing employer).

The startup must: 

Prove that you will be treated as an employee (not just the owner).

Have an independent board of directors that controls your employment.

Pay the required prevailing wage.

Allowed: Working at your startup legally.

Challenge: The startup must show financial ability to pay wages.

(iii) Option 3: Transition to an EB-2 NIW Green Card

If your patent benefits U.S. national interest, you can self-petition for an EB-2 NIW Green Card.

Once your I-140 is approved, you can work for your startup under EAD (Employment Authorization Document).

Allowed: Full control of the startup after I-485 is filed.

Challenge: Requires strong justification for NIW

AI start-up can be such justification.

Step 3: Use Your Patent to Monetize & Get Funding

You can leverage your patent in the following ways:

(i). Licensing the Patent

License your patent to companies in exchange for royalty payments.

This allows you to generate passive income without violating H-1B work restrictions.

(ii) Raising Venture Capital (VC) or Angel Investments

Investors often fund startups with strong IP portfolios.

You can secure funding rounds (Seed, Series A, etc.) based on your patent.

(iii). Partnering with U.S. Companies

Large tech or biotech firms often acquire patents or collaborate with inventors.

You can work with them while keeping your H-1B status.

(iv). Applying for SBIR/STTR Government Grants

If your patent has commercial or research potential, you can apply for Small Business Innovation Research (SBIR) or Small Business Technology Transfer (STTR) grants.

11. Best Path Forward if You Want to Stay on H-1B and Start a Business

(i) Hire a U.S. citizen or Green Card holder as CEO.

(ii) Take a passive role (investor, board member).

(iii) License the patent for revenue.

(iv) If You Want to Work for Your Startup

Get a concurrent H-1B from your startup.

Apply for an EB-2 NIW Green Card.

12. Best Path Forward if You Plan to Transition to a Green Card

Your patent strengthens an EB-2 NIW petition.

Once I-485 is filed, you get work authorization (EAD) and can legally run the company.

13. Filing US Patent application  provides extra benefits for H-1B holder dependent family member on H-4 visa.

(i) The H-4 visa is a type of visa issued by U.S. Citizenship and Immigration Services (USCIS) to dependents of certain nonimmigrant workers, including H-1B visa holders. The H-4 visa is available to spouses and unmarried children (under the age of 21) of H-1B, H-1C, H-2A, H-2B, and H-3 visa holders, and it allows them to accompany the work visa holder to the U.S. and reside there for the duration of the primary work visa holder’s authorized stay. H-4 visa holders are also eligible to study in the U.S. and apply for employment authorization, subject to certain restrictions.

(ii) An H-4 visa holder who is a dependent child of an H-1B visa holder can face challenges when they turn 21, as they age out of H-4 status. Here’s what can be done to remain in the U.S. and continue working:

(a) Options for Obtaining a Green Card and Work Authorization- Family-Based Green Card. If the parent (H-1B holder) has already obtained a green card (permanent residency) before the child turns 21, the child may be eligible to apply for a green card as a derivative beneficiary.

(b) Options for Obtaining a Green Card and Work Authorization-Employment-Based Green Card. If the H-1B parent is in the process of obtaining a green card, the child might be included as a derivative beneficiary under Form I-140 (Immigrant Petition for Alien Worker).

(c) Options for Obtaining a Green Card and Work Authorization-Employment-Based Green Card. If the child ages out (turns 21) before receiving a green card, they may have to apply independently for an employment-based visa such as H-1B or EB-2/EB-3 sponsorship.

(iii) Child Status Protection Act (CSPA).This law allows certain children to "freeze" their age below 21 under specific conditions, which may help them remain eligible as a dependent on their parent's green card application.

(iv) Options for Work Authorization After 21.

If the H-4 visa holder turns 21 and has not yet obtained a green card or another status, they can consider the following:

(a) F-1 Student Visa – If enrolled in a U.S. university, they can transition to an F-1 visa, which allows Optional Practical Training (OPT) and STEM OPT extensions for work after graduation.

(b) H-1B Visa – If they secure a job offer from a U.S. employer willing to sponsor them, they can apply for an H-1B work visa.

(c) O-1 Visa – For individuals with extraordinary abilities in science, arts, education, business, or athletics.

(d) EB-5 Investor Visa – If they or their family can invest at least $800,000 in a U.S. business that creates jobs, they may be eligible for a green card.

(e) Diversity Visa Lottery – If eligible based on nationality, they can apply for the U.S. Diversity Visa (Green Card) Lottery.

14. Specifics: even though filing a U.S. patent application as an H-4 visa holder does not directly grant work authorization or a green card, it may help indirectly in certain ways. 

(a) Indirect Benefit for an Employment-Based Green Card (EB-1A or EB-2 NIW)

If an H-4 visa holder invents something significant and files a patent, it can serve as proof of extraordinary ability or national interest, which are key factors in: 

EB-1A (Extraordinary Ability Green Card) – Requires substantial recognition in the field (e.g., patents, publications, major contributions).

EB-2 National Interest Waiver (NIW) – If the invention benefits the U.S. significantly, the applicant might qualify without needing employer sponsorship. If eligible, the H-4 visa holder could self-petition for a green card under these categories.

(b)  Strengthening the O-1 Visa Application

The O-1 visa is for individuals with extraordinary ability in science, business, education, or arts.

A patent can demonstrate that the individual is an expert or has made a significant contribution to their field, helping them qualify.

(c). If the patent leads to a startup or business that attracts investment and a company wants to hire the H-4 holder, the company can sponsor: H-1B work visa (if they meet job requirements), or PERM labor certification for EB-2 or EB-3 green card.

1. The O-1 visa is a dual-intent visa, meaning you can transition from O-1 status to a green card (permanent residency) in the U.S. 

The most common pathway is through an employment-based green card, typically the EB-1A (Extraordinary Ability) or EB-2 NIW (National Interest Waiver).

2. How to Obtain an O-1 Visa by Filing a U.S. Patent Application

Filing a U.S. patent application can significantly strengthen your O-1 visa petition by demonstrating extraordinary ability in science, technology, or business. However, simply filing a patent is not enough to qualify for an O-1 visa—you must show how the patent contributes to your extraordinary ability. 

3. Establish Eligibility for the O-1 Visa

To qualify, you must prove that you have extraordinary ability in your field, evidenced by sustained recognition. A U.S. patent or patent application can help satisfy one or more of the O-1 criteria, such as:

A. Original Contributions of Major Significance: 

If your patent has a significant impact in your field, it strengthens your case.

Evidence: Patent application, granted patent, expert letters, media coverage, market value, or citations by other researchers.

B. Published Scholarly Articles

If your patent is associated with scientific papers or research articles, it counts as additional evidence.

C. High Salary or Commercial Success

If your patent leads to a startup, licensing deals, or high compensation, it further supports your O-1 petition.

D. Membership in Prestigious Organizations

If your patent leads to recognition by professional organizations (e.g., IEEE, ACM), this supports your case.

E. Judge of Others' Work

If your patent leads you to be a reviewer or evaluator in your industry, this helps.

4. File a Strong U.S. Patent Application

Filing a patent itself is not enough, you need to show its significance. Follow these steps:

A. File a U.S. Patent (Provisional or Non-Provisional)

A provisional patent establishes priority but is not a full patent.

A non-provisional patent is the full application examined by USPTO.

B. Demonstrate the Patent’s Importance

Show how the patent advances your field and is used in products, technology, or research.

Gather letters of support from experts explaining its significance.

If the patent leads to a commercial product, startup, or licensing deal, document this.

5. Secure a U.S. Sponsor or Employer

A. The O-1 visa requires a U.S. employer or agent to sponsor you.

B. If you are founding a startup based on your patent, your startup can function as your sponsor.

Alternative: Work for a U.S. company that values your patent-related expertise.

6. File the O-1 Visa Petition (Form I-129)

Your employer (or agent) submits Form I-129 (Petition for Nonimmigrant Worker) with:

A. Evidence of Extraordinary Ability (including patent documents)

B. Employer Support Letter describing your unique skills and patent contributions

C. Letters from Industry Experts explaining your impact

D. Patent-related achievements (citations, commercial use, awards)