• ESTA Fee for Visa Waiver Entry to Take Effect 9/8/2010; Stricter Standards Implemented for PERM Labor Certification Employee Referral Program Documentation
  • August 27, 2010 | Author: Daniel Maranci
  • Law Firm: Verrill Dana LLP - Boston Office
  • ESTA Fee for Visa Waiver Entry of U.S. Goes Into Effect 9/8/2010

    Effective September 8, 2010, foreign nationals entering the U.S. pursuant to the Visa Waiver Program at air or sea ports of entry must pay a fee of $14 to obtain a travel authorization electronically through the Electronic System for Travel Authorization (ESTA) from U.S. Customs and Border Protection prior to departing for the United States. Each ESTA travel authorization is generally valid for two years.

    Stricter Standards for PERM Labor Certification Employee Referral Program Documentation

    As a necessary step in many employment-based green card processes, Labor Certification Applications are the process by which an employer conducts recruitment and screening to prove to the U.S. Department of Labor (DOL) that no qualified, willing, and able U.S. worker could be found to fill the position offered to a sponsored foreign national. For professional positions, employers must document three supplemental recruitment steps in order to adequately test the market. Employee Referral Programs (ERPs) are a common form of recruitment, and already in place for many employers.

    In the past, the DOL has accepted fairly general documentation of the existence of such a program, but with the release of the Round 11 PERM FAQ, the DOL has tightened up the standards for use of an ERP in a PERM filing. This follows from a reported spate of PERM denials, and the new standard requires more than simply showing that an ERP was in place during the recruitment period.

    The FAQ requires employers to document their "use of an employee referral program with incentives by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered as well as other appropriate documentation." Recent reported denials have been based on the absence of a specific dollar amount for referral bonuses. Per the FAQ, such a policy must now specify a dollar figure, or range.

    The FAQ must also now asks employers to explicitly show that the employees have been notified of the ERP linked to the PERM position being recruited for: "[I]n addition to establishing the existence of a referral program, employers must document that its employees were aware of the vacancy for which certification is being sought through means such as a posting on the employer's internal web site." The DOL specifically noted that, "[T]he Notice of Filing provided to satisfy ยง 656.10(d) shall not be sufficient for this purpose."