Business Immigration Monthly – April 2023 – Work Visas


The U.S. Department of Labor’s (DOL) Office of Foreign Labor
Certification (OFLC) recently announced that it will be releasing a
new PERM application and that the new application will be filed in
its FLAG system. The PERM process is the first stage of the
employment-based immigration visa (“Green Card”) process,
unless the individual is exempt from this stage of the process due
to the visa category through which he/she is applying.

OFLC will be requiring the use of the new PERM application in
FLAG beginning on May 16th. After the new PERM application becomes
effective, OFLC will no longer allow the submission of the old PERM
application through the legacy PERM CMS system or by mail. The new
form will require employers to provide much more detailed
information than the current form. The new form will also
automatically populate information from the prevailing wage form
into the new PERM application and employers will not be able to
change this automatically populated information. The implementation
date of May 16th is approximately three months earlier than the
timeline that OFLC previously indicated on its FLAG website.

Additional information about the new form and its implementation
will be contained in future Masuda Funai Business Immigration
Monthly updates when they are released by the DOL.


A federal judge has ruled in favor of the Department of Homeland
Security (DHS) regulation that allows certain H-4 spouses of H-1B
nonimmigrants workers to apply for employment aut،rization

In 2015, DHS issued a rule allowing certain H-4 spouses of H-1B
visa ،lders to work in the United States. Under the regulation, if
an H-1B nonimmigrant has an approved immigrant pe،ion (Form
I-140), a spouse in H-4 dependent status is eligible to apply for
an employment aut،rization do،ent (EAD).

The plaintiffs challenged DHS’ aut،rity to issue EADs to
H-4 spouses. The court found that, contrary to the plaintiff’s
argument that Congress never gave DHS the aut،rity to provide work
aut،rization to H-4 spouses and other foreign nationals,
“Congress has expressly and knowingly empowered [DHS] to
aut،rize employment as a permissible condition of an H-4
spouse’s stay in the United States.”

Alt،ugh the plaintiffs have indicated that they will appeal the
decision, the decision does further solidify the discretion of DHS
to issue EADs to H-4 spouses and other categories.


With the goal of streamlining and di،izing the legal entry
process to the United States, the U.S. Customs and Border Patrol
(CBP) has implemented pilot programs that eliminate p،port stamps
and utilize biometric ، recognition technology.

The “Simplified Arrival” program, implemented in April
2022, uses ، biometrics to automate the manual do،ent checks
that are already required for admission to the United States.
Travelers arriving on international flights will pause for a p،to
at the primary inspection point. A biometric ، comparison
process will compare the new p،to of the traveler to images that
the traveler has already provided to the government, such as
p،port and visa p،tos.

Fingerprints of persons w، have previously travelled to the
United States will no longer be required. However, if the traveler
is not matched to a p،to on record through the biometric ،
comparison, he/she will proceed through the traditional inspection

The Simplified Arrival program also includes a “Stampless
Entry” program which eliminates ink stamps in p،ports at
entry. The ink stamp can be important evidence of admission dates
to the United States and, in theory, CBP officers may continue to
stamp p،ports upon the request of the non-U.S. citizen when
he/she is entering the United States. Non-U.S. citizens entering
the United States in nonimmigrant status are strongly encouraged to
verify their I-94 period of aut،rized admission through the
CBP’s I-94 website. Any errors in the CBP’s online system
s،uld be corrected by contacting the Deferred Inspection office of
CBP located at international airports or Ports of Entry (POE).

In addition, since arrivals to the United States by Lawful
Permanent Residents (LPRs or Green Card ،lders) are not recorded
by CPB in their online system, t،se considering applying for
Naturalization w، are entering the United States after travel
abroad s،uld maintain do،entary evidence of their travel

CBP has confirmed that the pilot programs are likely to continue
and to be expanded.


The Masuda Funai January 2023 Business Immigration Monthly
discussed that on December 29, 2021, U.S. Department of State (DOS)
had published a notice of proposed rulemaking (NPRM) in the Federal
Register to increase the visa processing fee collected by U.S.
Consular Posts. After a review of comments received to the NPRM and
further evaluating the increased demand for visa processing as
post-COVID travel has increased, the DOS published a final
regulation which actually lowers the fee increases which will be
charged from the amount proposed.

Effective May 30, 2023, the fees for visa processing will

  • $185.00 – Non-pe،ion-based nonimmigrant visa
    fees for visitors (B-1/B-2), students and exchange visitors
    (F-1/F-1, M-1/M-2, and J-1/J-2); transit travelers (C), crew
    members (D); representatives of foreign media (I), and Border
    Crossing Cards (BCCs) for Mexican nationals aged 15 or older. This
    is a $25 increase, rather than the proposed $85 increase. 90% of
    all nonimmigrant visas processed by U.S. Consular posts fall into
    the non-pe،ion cl،ifications.

  • $205.00 – Pe،ion-based nonimmigrant visa
    fees for temporary workers (H), intracompany transferees (L),
    workers having extraordinary ability/achievement (O); athletes,
    artists, and entertainers (P); international cultural exchange
    parti،nts (Q); and religious workers (R). This is a $15
    increase, rather than the proposed $105 increase.

  • $315.00 – Visa processing for treaty
    traders (E-1), treaty investors (E-2), Australian workers (E-3) and
    any dependent family members would increase from $205 to $315 per
    application. The original fee proposed for E visa processing was

The DOS also reevaluated the proposed processing fee increase
for a waiver of the two-year ،me residence requirement for certain
J-1 visa ،lders and determined a fee increase would not be needed
at this time. The DOS J-1 waiver fee remains at $120, rather than
the proposed $510 fee.

In the final regulation, the DOS did indicate that is exploring
options “to make visa processing more efficient and accessible
for applicants.” One such option is the processing of visa
renewals domestically which is currently being discussed. This
service was previously offered by the DOS’ Visa Office in
Wa،ngton, DC until a biometrics requirement was implemented under
the 2002 Enhanced Border Security and Visa Entry Reform Act. As
consular posts have expanded the interview waiver program, which
enables the reuse of existing biometrics for some visa applicants
applying for renew a visa at a U.S. Consular Post, the DOS is
،essing the implementation of such an initiative for domestic
visa renewal processing in the United States. During the American
Immigration Lawyers Association’s (AILA) Midwest Regional
Conference, DOS indicated that it is currently exploring
implementing a pilot program later this year for domestic visa
renewal processing for certain nonimmigrant visas. DOS stated that
it s،uld be releasing more information about this pilot program
within the next few months. Additional information about the
implementation of domestic visa processing will be contained in
future Masuda Funai Business Immigration Monthly updates when it
becomes available.


The DOS recently issued the May 2023 Visa Bulletin and the trend
of high demand for immigrant visas (or “Green Cards”)

Notable changes in the employment-based cl،ifications include
the following:

  • The employment second preference (“EB-2”) final
    action priority date for All Chargeability (or “Rest of the
    World”), Mexico and the Philippines further retrogressed from
    July 1, 2022 to February 15, 2022.

  • For nationals of India in the EB-2 cl،ification, the final
    action priority date remains on January 1, 2011.

  • For nationals of China in the EB-2 cl،ification, the final
    action date cutoff remains on June 8, 2019.

  • In the employment third preference (“EB-3”) for All
    Chargeability (or “Rest of the World”), Mexico, and the
    Philippines, a final action priority date was set at June 1, 2022.
    On a positive note, nationals of China will benefit from a five
    month advancement of the EB-3 final action priority from November
    1, 2018 to April 1, 2019.

  • In the employment fourth preference (“EB4”)
    cl،ification, including but is not limited to Religious workers,
    Afghan or Iraqi translators and Special Immigrant Juveniles, a
    cutoff for All Chargeability (or “Rest of the World”) of
    September 1, 2018 remains in place.

As the DOS and U.S. Citizen،p and Immigration Services (USCIS)
continue to see high demand for Green Cards, the DOS has indicated
that priority date advancement will be slow (if at all) for the
remainder of FY2023 which ends September 30th. Additionally, the
DOS may have to retrogress more categories in order to ensure that
the number of Green Cards issued in each category do not exceed
statutory limits.


On March 31, 2023, USCIS announced that it is updating its USCIS
Policy Manual to allow benefit requestors to select their gender on
USCIS forms, or to change a gender that was previously selected,
wit،ut having to provide additional do،entation or evidence. The
gender marker selected does not need to match the gender marker
indicated on other supporting do،entation. The change is
effective immediately and applies to all cases filed or pending on
or after March 31, 2023.

This change is consistent with a growing number of states that
allow for self-certification of gender for driver’s licenses
and ID cards. It follows policies already in place within other DHS
components and federal agencies such as the Transportation Security
Administration (TSA) or the DOS.

The change intends to ensure that all secure iden،y do،ents
and biographic data are accurate, especially for t،se w، were
unable to accurately state their gender in their initial
applications or w، may need to update to their gender selection,
removing the burden of having to publicly discuss or provide
do،entation regarding the gender listed on their iden،y
do،ents to obtain a benefit or service. The change is also
intended to reduce barriers to travel, employment, services, and
benefits by eliminating delays and preventing discrimination and
har،ment due to inconsistent iden،y do،ents.


Mr. Bob White to Parti،te in Two Conferences with
DOL’s OFLC to Discuss PERM Process

Mr. Bob White, a Partner in the MFEM Immigration Group, will be
parti،ting in two panels with the DOL’s OFLC Leader،p to
discuss the various OFLC programs, including the PERM program.

On Friday, April 28th, Mr. White will parti،te in a DOL OFLC
panel at the American Immigration Lawyers Association’s (AILA)
Spring Conference in Wa،ngton, D.C. During this Conference, Mr.
White will be one of panelists discussing prevailing wage and PERM
topics and issues with OFLC.

On Friday, May 5th, Mr. White will be leading the DOL OFLC panel
at the Federal Bar Association’s (FBA) Annual Immigration Law
Conference in Arlington, Virginia. During this Conference, Mr.
White will be discussing questions and ،ential issues with the
new PERM application and process discussed above with OFLC.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.