The U.S. Department of Labor (DOL) has introduced critical updates to the PERM labor certification process, particularly regarding how employers address job opportunities that combine duties from multiple occupations. These changes, enforced through the FLAG filing system, demand careful attention to avoid summary denials. Below, we break down the latest requirements and share actionable strategies to ensure compliance.
Understanding Combination Occupations Under PERM
PERM regulations (20 CFR §656.17(h)(3)) strictly limit job opportunities that merge responsibilities from distinct occupations. Employers may justify such combinations only if they meet one of three criteria:
- The employer has historically employed workers for the combined role.
- The combination is customary in the industry or geographic area.
- The role arises from a business necessity (e.g., operational infeasibility of hiring separate workers).
Documentation to support these exceptions includes payroll records, position descriptions, letters from other employers, or business necessity evidence.
Key Changes in the FLAG System
The transition to the FLAG platform has overhauled how employers report combination occupations:
Legacy System vs. FLAG
- Legacy CMS: Employers could answer “No” to the combination question on the ETA 9089 even if the PWD indicated a combination, reserving arguments for audit responses.
- FLAG System: The new ETA 9089 automatically imports PWD data, including any combination designation. Employers must answer “Yes” to Question G.7 if the PWD lists a combination, unless they successfully challenge it through:
- Request for Redetermination (RFR)
- Center Director Review (CDR)
- BALCA Appeal (if necessary)
Critical Note: Answering “No” when the PWD indicates a combination risks summary denial without audit or RFI.
Lessons from BALCA: Avoid Costly Mistakes
Recent BALCA decisions underscore the importance of compliance:
- Matter of Liane Ginsberg (2019)
- Issue: A “Housekeeper” role included gardening duties, which fell outside the O*NET-SOC code for housekeeping.
- Outcome: Denied for failing to justify the combination. BALCA emphasized that convenience (e.g., small business size) isn’t sufficient for business necessity.
- Matter of Paramount Financial (2016)
- Issue: A “Marketing Strategist” role required legal duties. The employer cited budget constraints as a business necessity but provided no evidence.
- Outcome: Denied for inadequate documentation. BALCA reiterated that assertions alone won’t suffice—proof of infeasibility is required.
Practical Strategies for Employers
- Draft Precise Job Descriptions
- Align duties with O*NET-SOC codes to avoid unintended combinations.
- Avoid merging unrelated tasks (e.g., housekeeping + landscaping).
- Scrutinize Your PWD
- Check Sections G.3.d (O*NET code) and G.3.e (title) on the ETA 9141.
- If the NPWC incorrectly flags a combination, file an RFR immediately.
- Justify Combinations Early
- If a combination is unavoidable, prepare evidence for employer custom, industry norms, or business necessity at filing.
- Document Business Necessity Rigorously
- Use financial records, operational analyses, or expert affidavits to prove hiring two workers is infeasible.
Conclusion: Proactive Compliance is Key
The FLAG system’s automated processes leave little room for error. Employers must:
- Review PWDs meticulously.
- Challenge erroneous combinations through RFR/CDR before filing.
- Justify combinations thoroughly under §656.17(h)(3) if required.
At Ahluwalia Law Offices, we specialize in navigating complex PERM scenarios. Whether you’re drafting job descriptions, contesting PWD findings, or preparing audit-ready documentation, our team ensures compliance with evolving DOL standards.
Need Guidance? Contact us today to streamline your PERM process and avoid costly delays.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice.
