Short answer
Not on their own. A patent shows the USPTO found your invention new and nonobvious, but the USCIS Policy Manual says patented work “will not necessarily establish, on its own” major significance. An unlicensed patent can still count when you prove others used, built on or paid attention to it. The EB-1A denial rate hit 46.6% in Q4 FY 2025.
- USCIS lists “patents or licenses deriving from the person’s work or evidence of commercial use” as examples, so a license is one route to significance, not the only one.
- A pending patent needs more support: USCIS “generally requires additional supporting evidence,” such as detailed reference letters.
- In FY 2025, 170,861 U.S. patents lapsed for unpaid maintenance fees, a reminder that a grant alone says little about use.
- In Amin v. Mayorkas (5th Cir. 2022), the court upheld a denial where the inventions had not been adopted beyond the petitioner’s own employer.
This guide is for inventors, engineers, researchers and founders whose patents were never licensed. It covers what the regulations and the USCIS Policy Manual say, how courts and the Administrative Appeals Office have applied them, and which kinds of evidence turn a patent into proof of impact.
We pulled patent counts, pendency and maintenance fee data from the USPTO and petition outcome data from an American Immigration Council analysis of USCIS records. Figures checked October 2026.
What USCIS says about patents and major significance
USCIS treats a patent as proof of originality and asks for separate proof of significance. The EB-1A regulation at 8 CFR 204.5(h)(3)(v) asks for evidence of “original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.” The word patent does not appear in it. The guidance on patents comes from the USCIS Policy Manual, Volume 6, Part F, Chapter 2.
That chapter says the officer first decides whether a contribution is original and then whether it is of major significance. It then addresses patents directly. Evidence that work was “funded, patented, or published” will “not necessarily establish, on its own, that the work is of major significance to the field.” In the next breath, it explains what can: evidence “that the person developed a patented technology that has attracted significant attention or commercialization may establish the significance” of the contribution.
The Policy Manual also lists examples of relevant evidence, including “patents or licenses deriving from the person’s work or evidence of commercial use of the person’s work.” A license is strong evidence because someone paid for the invention, but it is not a requirement. Attention, adoption, commercial use and reliance by others can do the same job without a license.
The AAO applies this language in practice. In a December 12, 2023 non-precedent decision dismissing an EB-1A appeal by a software engineer, the AAO noted that a supporting letter did “not show how the patents have impacted or influenced the field in a major manner” and did not say whether the patents had been “commercialized or utilized.” The patents were not the problem. The missing proof of use was.
What does an unlicensed patent prove on its own?
A granted patent proves that a USPTO examiner found the claimed invention new, useful and not obvious. Under 35 U.S.C. 103, a patent may not be obtained if the invention “as a whole would have been obvious” to “a person having ordinary skill in the art.” Clearing that bar is real evidence of originality, the first half of the criterion. It says nothing about whether anyone outside your company has relied on the invention, the second half.
The USPTO decides whether an invention is new and nonobvious. USCIS decides whether the field needed it. An unlicensed patent passes the first test and has not yet spoken to the second.
The volume of patents shows why officers look past the grant. The USPTO issued 328,948 utility patents in FY 2025, and owners keep many of them only as long as they appear worth the fees. Utility patents carry maintenance fees at 3.5, 7.5 and 11.5 years after grant. In FY 2025, 170,861 patents lapsed for unpaid maintenance fees, while 597,657 were renewed.
The chart shows lapses rising from 108,627 in FY 2016 to 170,861 in FY 2025, an increase of 57.3%. Measured against renewals, the lapsed share in FY 2025 was 22.2%, about one in five patents that reached a maintenance deadline. The table below sets out the last five fiscal years.
| Fiscal year | Patents renewed | Patents lapsed | Lapsed share |
|---|---|---|---|
| FY 2021 | 447,297 | 145,807 | 24.6% |
| FY 2022 | 575,110 | 154,768 | 21.2% |
| FY 2023 | 608,069 | 151,150 | 19.9% |
| FY 2024 | 619,412 | 167,932 | 21.3% |
| FY 2025 | 597,657 | 170,861 | 22.2% |
Source: USPTO FY 2025 Workload Tables, Table 1. Lapsed share is Einstein Visa Experts analysis of USPTO data, FY 2021 to FY 2025: lapsed divided by renewed plus lapsed.
Keeping a patent alive costs money. The undiscounted fees run $2,150 at 3.5 years, $4,040 at 7.5 years and $8,280 at 11.5 years. Paying them is not proof of significance, but it fits with evidence of use.
| Maintenance fee due | Undiscounted | Small entity | Micro entity |
|---|---|---|---|
| 3.5 years after grant | $2,150 | $860 | $430 |
| 7.5 years after grant | $4,040 | $1,616 | $808 |
| 11.5 years after grant | $8,280 | $3,312 | $1,656 |
| Total | $14,470 | $5,788 | $2,894 |
Source: USPTO fee schedule, fees effective January 19, 2025. Totals are Einstein Visa Experts sums of the listed fees.
What turns an unlicensed patent into a major contribution?
An unlicensed patent becomes a contribution of major significance when the record shows that people beyond the inventor’s own employer have used it, built on it or changed their work because of it. The evidence has to show impact on the field, not effort or ingenuity. The ladder below runs from evidence that proves only originality to evidence that speaks directly to significance.
| Evidence | What it proves | Weight on its own |
|---|---|---|
| Granted patent, no other proof | Originality only | Low |
| Pending or provisional application | A claim of originality, not yet examined or not yet granted | Very low without letters |
| Use inside your own company | Value to one employer | Moderate, needs outside proof |
| Forward citations by other companies | Others building on the work | Moderate to strong |
| Independent media or industry attention | Recognition in the field | Strong |
| Adoption by other companies or labs | Influence on how the field works | Strong |
| License, sale or commercial product revenue | Someone paid for it | Strong |
Source: USCIS Policy Manual, Volume 6, Part F, Chapter 2, and Amin v. Mayorkas, 5th Cir., January 24, 2022. Weight ratings are Einstein Visa Experts’ reading of that guidance.
Commercial use without a license
Many valuable patents are never licensed because the owner uses them. If your patented method runs inside a product sold to customers, the product is commercial use of your work. Document it with public product pages, technical documentation that reflects the claims, customer or usage figures from a company officer, and revenue tied to the feature where the company will confirm it.
Adoption outside your employer
Courts give the most weight to influence beyond the inventor’s own company. In Amin v. Mayorkas, the Fifth Circuit noted that the agency gave little weight to a letter that “did not explain the design’s impact beyond Enersul,” the petitioner’s employer. The court said the petitioner “cites no case where an invention that was not adopted by even one industry actor met this standard.” Evidence that other companies, labs or open source projects use or replicate your approach answers that concern directly.
Forward citations and attention
When later patents from other assignees cite yours as prior art, that is a record of others building on the work. Coverage in trade publications, invited talks about the invention and requests from other companies to use it are the “significant attention” the Policy Manual describes.
Letters that explain impact
The Policy Manual says expert letters “should specifically describe the person’s contribution and its significance to the field” and “set forth the basis of the writer’s knowledge and expertise.” Letters from people outside your company who used or evaluated the invention carry more weight than praise from colleagues. Our approach is described on our evidence and expert letters page.
How the rule differs across EB-1A, O-1A, EB-1B and the NIW
The same patent is weighed differently by category. Only the EB-1A guidance names patents.
| Category | Relevant standard | Patents in USCIS guidance | What a patent must show |
|---|---|---|---|
| EB-1A | Contributions of major significance, 8 CFR 204.5(h)(3)(v) | Named directly in the Policy Manual | Attention, commercialization or use, then sustained acclaim |
| O-1A | Contributions of major significance, 8 CFR 214.2(o)(3)(iii)(B)(5) | Not singled out in the O-1 chapter | Significance, then the totality of the evidence |
| EB-1B | Original research contributions to the academic field, 8 CFR 204.5(i)(3)(i)(E) | No separate patent guidance | Research contribution and international recognition |
| EB-2 NIW | Matter of Dhanasar, three prongs | No patent rule | Record of success and interest from users or investors |
Source: USCIS Policy Manual, Volume 6, Part F, Chapter 2, Volume 2, Part M, Chapter 4, and Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), checked October 2026.
EB-1A
Even when the patent evidence meets the criterion, it is weighed again at the final merits stage, where the question is whether you have sustained acclaim at the very top of your field. We explain that review in the Kazarian two-step, in plain language. Our EB-1A page covers the other nine criteria.
O-1A
The O-1A criterion uses almost the same words, “original scientific, scholarly, or business-related contributions of major significance in the field.” The O-1 chapter of the Policy Manual does not single out patents, so the same logic applies by analogy: originality is not enough without proof that the work mattered. Our guide to O-1 visa requirements walks through all eight criteria, and the O-1A page explains how we approach those petitions.
EB-2 NIW
The older NIW decision, Matter of New York State Department of Transportation (1998), said in a footnote that a person “cannot secure a national interest waiver simply by demonstrating that he or she holds a patent.” Matter of Dhanasar vacated that framework in 2016. Its second prong now asks whether you are well positioned, looking at your “record of success,” “any progress towards achieving the proposed endeavor” and “the interest of potential customers, users, investors.” A patent fits there as part of a track record, which is why unlicensed patents are often more useful in an EB-2 NIW than in an EB-1A.
The stakes rose in both green card categories. Denial rates for EB-1A petitions went from 26.1% in Q1 FY 2022 to 46.6% in Q4 FY 2025, and for NIW petitions from 6.6% to 64.3% over the same quarters, while EB-1B denials fell from 9.2% to 2.5%.
How to document an unlicensed patent, step by step
Build the patent exhibit around impact, in this order.
- Prove inventorship and your role. Include the patent, the USPTO record and, for co-invented or employer-assigned patents, a letter or invention disclosure showing what you personally contributed.
- Explain the invention in plain language. Officers are not examiners. One page on the problem, the prior approach and what your claims made possible.
- Show use. Products, deployments, internal systems or research tools that rely on the claims, with figures confirmed by an officer of the company.
- Show use by others. Forward citations by other assignees, adoption by other companies or labs, and inbound requests to use or license the technology.
- Show attention. Trade press, talks and awards tied to the invention itself.
- Add independent letters. Experts outside your organization who explain why the invention changed practice in the field.
- Connect it to the final merits question. Explain how the patent fits a longer record of recognition.
Pending applications and provisionals
The Policy Manual says that when “a patent remains pending, USCIS generally requires additional supporting evidence to document the originality” of the contribution, such as detailed reference letters. A provisional application is never examined, so it proves even less. Timing matters: average total pendency for utility, plant and reissue applications was 26.3 months in FY 2025, with first action pendency of 22.6 months, and some technology areas run longer.
Biotechnology and organic chemistry applications averaged 33.8 months in FY 2025, while software and information security averaged 26.6 months. If your strongest invention is still pending, use and adoption evidence has to carry the argument.
An illustrative profile
Illustrative profile: a machine learning engineer at a mid-size logistics software company is a named inventor on several granted U.S. patents, all assigned to the employer and none licensed. One covers a routing method that runs in the company’s commercial product. A weak exhibit lists the patents and their abstracts. A stronger exhibit shows the patent claims mapped to the product’s public documentation, a letter from the company’s chief technology officer confirming the method runs in production for paying customers, a list of later patents from other companies citing it, a trade article describing the feature, and a letter from an independent researcher explaining what the method changed. Nothing in the stronger version requires a license.
How it changes by field
Founders and startup executives
For founders, the company is usually the proof of use. A patent that protects the core product, combined with customers, revenue, investment and press, reads as a business-related contribution with commercial use. The weak spot is the step outside the company: show partners, integrations or competitors responding to it. Our page for founders and startup executives covers how these records map to the criteria.
Researchers and scientists
Researchers often hold university patents that were never licensed. The paper behind the patent is usually the stronger exhibit, because citations to the publication show other groups building on the work. Present the patent as confirmation of originality and the citation record, independent replications and follow-on studies as proof of significance. See our page for researchers and scientists.
Engineers and tech professionals
Engineers at large companies often hold many patents, most assigned to the employer and used internally or held defensively. Count matters less than proof that specific inventions shipped. Focus on two or three patents that run in products at scale, document the scale through an officer letter, and look for forward citations from other companies. Our page for engineers and tech professionals covers patents alongside open source and critical role evidence.
Common mistakes with patent evidence
- Leading with the count. Ten patents with no proof of use read as ten proofs of originality. One patent with documented adoption is stronger.
- Letters that restate the abstract. In the December 2023 AAO decision, the letters described patents but did not explain how they “impacted or influenced the field in a major manner.”
- Showing impact only inside the employer. In Amin v. Mayorkas, letters about value to the petitioner’s own company carried little weight.
- Relying on pending or provisional filings. With average total pendency of 26.3 months in FY 2025, many applications will not be granted before you file. Plan the use evidence accordingly.
- Ignoring the RFE pattern. If a request for evidence says your patents show originality but not significance, answer with use, adoption and independent letters, not a longer patent list. Our RFE response work focuses on these gaps.
Frequently asked questions
Does a patent assigned to my employer still count as my contribution?
Yes, if you are a named inventor and can show your personal role. Ownership by the employer is normal and does not erase your contribution. USCIS will still look for evidence of what you specifically invented, so include invention disclosures or a letter from a supervisor describing your part, especially when the patent lists several co-inventors.
Do forward citations from other patents help?
They can. When later patents filed by other companies cite yours, that is a public record of others building on the work. Citations from your own employer’s later filings carry less weight. Present the citing patents with their assignees and dates, and pair them with a letter explaining why those citations matter in your field.
Does a provisional patent application count?
Only weakly. A provisional application is never examined, so it does not show that the USPTO found anything new. It can document that you developed an idea by a certain date, but the significance argument has to rest on use, adoption, attention and independent expert letters describing the work.
Do foreign patents count the same as U.S. patents?
The regulations do not limit original contributions to U.S. patents, and the Policy Manual speaks of patented technology generally. A foreign patent is weighed the same way: it supports originality, and significance must be shown through use, attention or commercialization. Provide certified translations of any patent or supporting document not in English.
How many patents do I need for an EB-1A?
There is no number. USCIS asks whether contributions are of major significance, not how many patents you hold. One patent tied to widely used technology can meet the criterion, while dozens of patents with no evidence of use may not. Focus the petition on the patents with the strongest record of impact.
Can a patent support other EB-1A criteria?
Indirectly. A patent does not satisfy another criterion by itself, but the same invention can support others. Trade press about it may count as published material about you, and leading its development can support a critical role claim. In the final merits review, all of it is weighed together.
Talking it through
If your strongest work sits in patents that were never licensed, the useful first step is an honest read on how much use and adoption evidence already exists. In a consultation, we map each patent to the criteria, identify which inventions have the clearest proof of impact, and outline what to gather before filing, whether the best path is an EB-1A, an O-1A or an NIW.
When the record is ready, we prepare the full petition, and it is reviewed, signed and filed by an independent licensed immigration attorney. To start, book a consultation.
Sources
- USCIS, Policy Manual Volume 6, Part F, Chapter 2, Extraordinary Ability (checked October 2026)
- USCIS, Policy Manual Volume 2, Part M, Chapter 4, O-1 Beneficiaries (checked October 2026)
- USCIS, Policy Manual Volume 6, Part F, Chapter 5, Advanced Degree or Exceptional Ability (checked October 2026)
- eCFR, 8 CFR 204.5, Petitions for employment-based immigrants
- eCFR, 8 CFR 214.2, Special requirements for admission of nonimmigrants
- USCIS Administrative Appeals Office, non-precedent decision, In Re: 28981666 (December 12, 2023)
- U.S. Court of Appeals for the Fifth Circuit, Amin v. Mayorkas, No. 21-20212 (January 24, 2022)
- U.S. Court of Appeals for the Ninth Circuit, Kazarian v. USCIS, 596 F.3d 1115 (2010)
- Department of Justice, Matter of New York State Department of Transportation, 22 I&N Dec. 215 (1998)
- Department of Justice, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
- USPTO, FY 2025 Workload Tables, Tables 1 and 4 (preliminary FY 2025 data)
- USPTO, Fee Schedule, maintenance fees effective January 19, 2025
- 35 U.S.C. 103, Conditions for patentability; non-obvious subject matter
- American Immigration Council, From Petition to Permanent Residence: A Decade of USCIS Filing, Processing, and Backlog Trends (August 2026)