On October 18, 2012, the Board of Alien Labor Certification Appeals (BALCA) issued a decision discussing the documentation of employee referral programs for PERM applications in Bottomline Technologies, 2011-PER-02325 (Oct. 18, 2012) (as corrected by an Order Errata (Oct. 24, 2012)). Following its decision in Sanmina-Sci Corp., 2010-PER-00697 (Jan. 19, 2011), BALCA found that the employer in Bottomline Technologies adequately showed that its employee referral program satisfied Department of Labor (DOL) regulations as a means of PERM recruitment.

The Board reaffirmed the test it established in Samina-Sci Corp. to evaluate the acceptability of employee referral programs.

The test requires employers to show, at a minimum, that:

Best practice is for employers to included dated information during the PERM recruitment period (and prior to filing the PERM) that shows the existence and terms of the employee referral program and proof that employees were notified about the job opening. For more information about PERMs, see Practice Notes, PERM Labor Certification: Overview and The PERM Labor Certification Process.

On October 2, 2012, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) released guidance on the anti-discrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA) as it applies to completing I-9 Forms for workers approved for Deferred Action for Childhood Arrivals (DACA) status. The guidance reiterated that existing IRCA laws remain in force for DACA-approved workers, including those regulating:

For more information on employers' I-9 and anti-discrimination obligations under IRCA, see Practice Notes, Demonstrating the Right to Work in the United States and Discrimination: Overview: IRCA.

On October 2, 2012, the Department of Homeland Security (DHS) announced inclusion of Taiwan in the Visa Waiver Program (VWP). Beginning November 1, 2012, Taiwanese citizens who obtain Electronic System for Travel Authorization (ESTA) approval may travel to the US for up to 90 days as temporary visitors for business or pleasure without first obtaining a visa.

For a description of nonimmigrant visa classifications, see Key Nonimmigrant Visa Classifications Chart. For more on visa applications, see Practice Note, Applying for a Nonimmigrant Visa to the US.

On October 1, 2012, the United States Citizenship and Immigration Services (USCIS) announced that employers may file TN petitions for initial employment with the USCIS for Canadian citizens who are outside the US. Previously, USCIS only accepted petitions for an extension of or change to TN status. Canadian citizens may continue to apply for TN status with US Customs and Border Protection (CBP) at a port-of-entry to the US.

Employers may choose to file a new TN petition with USCIS as a way of reducing uncertainty or delays for prospective employees in CBP processing.

For more information on the TN nonimmigrant category, see Practice Note, The Trade NAFTA (TN) Nonimmigrant Visa Classification. For more information on nonimmigrant visa petitions, see Practice Note, Employer-sponsored Nonimmigrant Visa Petitions in the US.