Case Study: AAO Sustained an EB1-A Appeal of Petition on Behalf of an Inventor

by Victoria Chen, Esq., J.D.

Background: The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. s 1153(b)(1)(A), as an alien of extraordinary ability in the sciences. This petition seeks to classify the petitioner as an alien with extraordinary ability an inventor.

USCIS Decision: The director of Texas Service Center determined the petitioner had not established that the beneficiary qualifies for classification as an alien of extraordinary ability.

AAO’s Decision: Concurring with the USCIS, the AAO did not find the petitioner’s evidence have met at least three of the regulatory evidence:

1. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought.

The petitioner submitted evidence of his U.S. Patent 7,292,153 B1, IVONKA, which is a drunk-driving detection system to assist police officers in the testing of suspected drivers for the presence of drugs and alcohol. The petitioner failed to submit any documentary evidence establishing that IVONKA has ever been utilized. Instead, the petitioner submitted marketing material from InventHelp in order to show that IVONKA is available for licensing or sale to manufacturers or marketers.

Nonetheless, the AAO stated that a patent is not necessarily evidence of a track record of success with some degree of influence over the field as a whole. Rather, the significance of the innovation must be determined on a case-by-case basis.The petitioner has not only failed to establish that IVONKA has been used by the targeted audience of police departments, but the petitioner has failed to establish that IVONKA has even been manufactured or created. The petitioner has failed to establish that his patent is a contribution of major significance in the field through his development of this idea.

According to the regulation at 8 C.F.R. s 204.5(h)(3)(v), an alien’s contributions must be not only original but of major significance. Accordingly, the AAO did not find the petitioner has not established that he meets this criterion.

2. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.

The petitioner submitted a job verification letter, dated February 10, 2009, indicating that the petitioner worked for Weber-Stephen Products Company from February 10, 2000, to May 26, 2008, as a team leader. The petitioner also submitted his performance appraisal, which the petitioner received a rating of “meets requirements.”

The AAO stated that the submitted documentation does not establish that his position was leading or critical to this company as a whole. For example, the record does not include detailed job responsibilities discussing the nature of the petitioner’s duties and significant accomplishments and the importance of his role to the company’s operations. The petitioner failed to establish that his leadership or critical roles directly led to the success and accomplishments at this company. Further, the petitioner has not submitted an organizational chart or other similar evidence showing his position in relation to that of the other employees in similar positions at this company. There is no evidence demonstrating how the petitioner’s roles differentiated him from the other team leaders. Therefore, the AAO concluded that in this case, the documentation submitted by the petitioner does not establish that he was responsible for the success or standing to a degree consistent with the meaning of “leading or critical role” and indicative of sustained national or international acclaim.

Continuance of Work in the Beneficiary’s Area of Expertise: :

Although the USCIS did not inquire into this prong of requirements, the AAO took a note on the other two requirements of extraordinary ability priority worker. The AAO stated that the statute and regulations require that the petitioner seeks to continue work in his area of expertise in the United States. Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments such as contracts, or a statement from the petitioner detailing plans on how he intends to continue her work in the United States. On the Form I-140, the petitioner failed to provide any information in Part 6, “Basic information about the proposed employment.” Further, with his initial submission, the petitioner submitted no personal statement, no letters from prospective employers, contracts, or other information detailing his plans in the United States. As referenced previously, the petitioner submitted a job verification letter from Weber-Stephen Products Company indicating employment from February 10, 2000, to May 26, 2008, as a team leader. The record does not demonstrate that the petitioner’s previous employment was in his area of expertise. More importantly, however, the petitioner failed to establish that he will continue work in his claimed area of expertise as an inventor in the United States. Therefore, the AAO did not find the petitioner’s evidence has satisfied this requirement.

Because of the reasons previously discussed, the AAO dismissed the appeal.

from Chen Immigration Law Associates

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