Updates on USCIS Processing of H-1B1 Petitions

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

Below are two major updates regarding the USCIS Processing of H-1B1 Petitions in the U.S.  Note that these updates pertain only to I-129 petitions filed with USCIS.  In other words, these do not apply to H-1B1 visa applications done directly at the U.S. Embassy in Singapore where USCIS is not involved.  I compare USCIS processing versus US Embassy processing in a previous blog post here.

1. USCIS Online Filing Now Available

Firstly, as of April 1, 2024, USCIS allows H-1B1 employers to file H-1B1 I-129 petitions online using their MyUSCIS account at https://my.uscis.gov/.

Nevertheless, H-1B1 employers can still choose to utilize the traditional paper filing method with USCIS, which is totally fine.

To reiterate, we are talking about petitions filed with USCIS here.  If a Singaporean were to apply for an H-1B1 visa directly at the U.S. Embassy in Singapore, then there is no need to go through USCIS at all.

Note: the USCIS online filing system currently does NOT have the capability to process concurrent applications for H-4 dependents filed with the principal's H-1B1 petition.  For instance, in a situation where an H-1B1 extension of stay in the U.S. is sought via an I-129 petition AND an extension of status is also sought for an H-4 dependent (e.g. spouse) via a concurrent 539 application, an online filing would not be possible.  In such an instance, paper filing for the concurrent I-129 H-1B1 petition and I-539 H-4 application is the only option.  

2. New USCIS Filing Fees

Secondly, as of April 1, 2024, USCIS has effectively increased its filing fees for I-129 petitions filed by companies by having higher fees for larger companies and adding a new type of fee called the Asylum Program fee (to fund government costs associated with asylum processing even though I-129 petitions do not deal with asylum cases at all).  The new USCIS filing fees are summarized as follows.

For Companies:

For a company with 25 or less employees (including those employed by the company's subsidiaries and affiliates)

USCIS I-129 filing fee: $460 (Regardless of paper filing or online filing)

USCIS Asylum Program fee: $300

USCIS ACWIA fee: $750

Total: $1510

For a company with over 25 employees (including those employed by the company's subsidiaries and affiliates)

USCIS I-129 filing fee: $780 (Paper filing) or $730 (Online filing)

USCIS Asylum Program fee: $600

USCIS ACWIA fee: $1500

Total: $2880 (Paper filing) or $2830 (Online filing)

Note:  Employees here refer to full-time equivalent employees (which in turn equals to the number of full-time employees plus the number of part-time employees aggregated to full-time equivalents). 

For Non-Profits:

For a Non-profit with 25 or less employees (including those employed by the Non-profit's subsidiaries and affiliates)

USCIS I-129 filing fee: $460 (Regardless of paper filing or online filing)

USCIS Asylum Program fee: $0

USCIS ACWIA fee: $750

Total: $1210

For a Non-profit with over 25 employees (including those employed by the Non-profit's subsidiaries and affiliates)

USCIS I-129 filing fee: $460 (Regardless of paper filing or online filing)

USCIS Asylum Program fee: $0

USCIS ACWIA fee: $1500

Total: $1960

Note:  Employees here refer to full-time equivalent employees (which in turn equals to the number of full-time employees plus the number of part-time employees aggregated to full-time equivalents). 

These USCIS filing fees only apply to petitions filed with USCIS.  If you were to apply for an H-1B1 visa directly at the U.S. Embassy in Singapore, you do NOT need to go through USCIS.

Accordingly, the USCIS fee adjustment imposed by USCIS (and how they are now structured in a potentially more confusing manner) is perhaps now another factor in favor of applying for an H-1B1 visa directly with the U.S. Embassy in Singapore. 

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.

The E-2 Visa for Singaporeans

I am a Singaporean U.S. immigration attorney based in Los Angeles specializing in H-1B1 visas for Singaporeans.  My California State Bar record can be found here and my law firm website can be found here.  Feel free to connect with me on Linkedin.

Because the H-1B1 visa is not suitable for Singaporeans wishing to run their own businesses in the U.S., I often end up suggesting the E-2 visa to them. 

I summarize the key requirements for an E-2 visa for Singaporeans below.

E-2 Visa for Singaporeans

Requirement 1. Treaty Country

Only citizens of treaty countries are eligible for an E-2 visa.  Because Singapore is an E-2 treaty country, Singaporean citizens are eligible for the E-2 visa.

Requirement 2. E-2 Applicant and E-2 Business must Have Nationality of the Treaty Country

This means that the E-2 applicant must have Singapore citizenship, and the E-2 Entity where the applicant will work at must be Singaporean-owned (must be at least 50% owned by non-green-card-holding Singaporean citizens; if the E-2 entity is owned by a parent entity, the parent entity must be at least 50% owned by non-green-card-holding Singaporean citizens).

Requirement 3. E-2 Applicant Must Have Invested or Be in Process of Investing

This means that the E-2 Applicant has placed funds into the E-2 entity which have been put "at risk".  "At risk" means that the investment funds have been irrevocably committed, for example:

- Advance payment for office rent already spent;

- Amount for purchase of equipment and inventory already spent;

- Putting funds into an escrow account when purchasing a business, because an E-2 applicant can choose to purchase an existing business instead of starting a business from scratch.

The rationale for the "at risk" component is that the US government wants to see that the Singaporean has put sufficient "skin in the game" and is really very serious about committing to this E-2 business, which is why they want the investment funds to be spent and not being passively left in the bank account. 

The source of the funds can come from the E-2 Applicant's capital assets or simply funds from his/her savings or gifts, or can also come from loans secured by personal assets, but it must not come from illegal activities.

Requirement 4. Commercial Enterprise Must be Real and Active

When this is a new enterprise, the US government wants to see that the enterprise will be a real and active commercial endeavor producing some service or goods if the E-2 visa is issued.  

Practically speaking, it behooves the Applicant to be able to show that the business has already started operating / transacting with customers or is very close to the start of actual operations, which would in turn serve to also help demonstrate that the Applicant has already put in sufficient "skin in the game" (see Requirement 3. above).

In fact, the U.S. Embassy in Singapore wants to see evidence that the enterprise is either currently running or will open its doors imminently (examples include: business license, lease agreement, utility bills, business bank statements, sales invoices, employment contracts with employees, proof of salaries and wages paid).

Because this requirement involves a "commercial" (for-profit) enterprise, a Singaporean cannot start a nonprofit using an E-2 visa.

Requirement 5. Investment Must be Substantial

This requirement addresses common questions on what constitutes a minimum investment amount for an E-2.  The short answer is that there is no magic number.  Having said that, in my opinion at-risk funds totaling less than $50,000 USD would generally be a signal to an adjudicator that there is insufficient "skin in the game".

This requirement can be met by showing that the amount of investment was sufficient in bringing the business to the point of it being operational; in other words, if your E-2 entity is already transacting with vendors and customers and is already fully operational, then you would have a good justification that your investment was "substantial."

Requirement 6. Enterprise Must be More Than Marginal

This simply means that the enterprise must be able to generate enough income for more than the E-2 applicant and their family.  

In my opinion this requirement can be met by the E-2 entity hiring U.S. employees since it would show that the enterprise has the present or future capacity to generate income for more than the Singaporean E-2 applicant.  

In addition, if this is a new enterprise, the U.S. Embassy in Singapore expects to see a business plan with a 5-year financial/income projection.

Requirement 7.  Develop and Direct the Enterprise (also see Requirement 7.a. below)

This means that the E-2 Applicant must be in a position to own and control the E-2 entity, for example:

- Owning 51% or more of the entity:  This clearly shows controlling ownership interest

- "Negative Control" arrangement involving two parties:  This means that an equal 50% / 50% ownership of the entity between two Singaporean parties (one or both of them being E-2 Applicant(s)), with both partners each retaining full management rights and responsibilities, could work.

In addition, it also helps that the E-2 entity already has subordinate employees, so that it can be shown that the E-2 applicant will "direct" the enterprise.  Adjudicators seem to take the view that, if there are no subordinate employees, there would be nobody in the enterprise to direct.

Requirement 7.a. Executive/Supervisory/Essential Employees

Not every Singaporean E-2 visa applicant needs to be the investor/owner of the E-2 entity.  A Singaporean citizen can also apply for an E-2 visa as an Executive/Supervisory/Essential Employee of a Singaporean E-2 entity which has met Requirements 1-6 above.

Executive/Supervisory E-2 employee - when evaluating whether this is indeed an executive or supervisory position, the adjudicator will look at the person's qualifications (education & experience), place in the organizational structure, duties, number and skill levels of the subordinate employees.  As such, practically speaking if there are zero or very few employees at the E-2 entity, it would be a very difficult E-2 Executive/Supervisory employee case.

Essential E-2 employee - when adjudicators assess whether the E-2 entity has a business need for a specific skillset and whether the E-2 applicant possesses these skills, they will consider factors such as (a) experience and training necessary to achieve the desired skills needed for the position; (b) the uniqueness of such skills; (c) the availability of US workers with such skills; (d) salary; (e) proven expertise of the applicant; and (f) the function of the job being offered at the E-2 entity.

Overall, the requirements are interrelated and may have a "domino effect" on each other.  For example, meeting Requirement 4. (Real and Active) helps to strengthen Requirement 3. (Invested or Process of Investing) and Requirement 5. (Investment is Substantial); Meeting Requirement 6. (More than Marginal) helps to strengthen Requirement 7. (Develop and Direct).   

Another observation I have is that, unfortunately, the E-2 requirements do not always comport with real life.  For example, it is understandable that businesses do not wish to hire employees or put in too much "skin in the game" at the start.  However, I believe the U.S. government perhaps wants to see a high degree of serious commitment by the Singaporean entrepreneur beyond that of a common businessperson before it would agree to grant an E-2 visa.

Disclaimer:  This blog post is for informational purposes only and does not constitute legal advice.