H1B Visa Lawyer Blog
The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Literary & Media Specialist”.
The CO denied the application stating that the Employer failed to provide sufficient documentation of a radio advertisement. He cited it was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J).
PERM regulation 20 C.F.R. 656.17(e)(1)(ii)(J) expects employers to provide a copy of an advertisement as well as a written confirmation from the radio or television station stating when the ad was aired.
The Employer requested a review of the CO’s denial stating that they submitted a complete CD audio recording of the actual on-air advertisement. The CD was clearly labeled with the date of the ad as well as the title “Radio Proof” and the Company’s Name. In addition, the employer supplied an advertiser’s tear sheet that showed the ads were aired on two separate time frames on WAXQ-FM. Both the CD and the tear sheet reflected the name of the Employer and the Advertising agency. The Employer also presented the radio ad’s invoice which indicated the name of the radio station, advertiser, company name and the exact same number of radio spots as the tear sheet.
The CO forwarded the appeal to BALCA for review of the case by arguing that the Employer did not submit the actual advertising text.
Upon examination of the case, BALCA believed “the audio recording provided of the ad text is by definition a copy of the employer’s text.” They could not find reason not to accept it as sufficient documentation under PERM Regulation 656.17(e)(1)(ii)(J).
BALCA returned the application to the CO with instructions to certify it.