Labor Certification form for EB2 NIW: ETA-750 or ETA-9089?

In the EB2 NIW category, the petitioner does not need a labor certification (also referred to as PERM). However, the form relative to this PERM process needs to be enclosed in the I-140 petition together with the I-140 form, the cover letter, and all the attachments even for EB2 NIW.   In this blog post, we will discuss which form to use to satisfy this requirement and where to submit it to.

Flow chart green card process

Why is the labor certification form required for EB2 NIW?

I can agree it does not make a lot of sense for USCIS to want this form. Since for the National Interest Waiver category there is literally no PERM process, this requirement seems odd at best. However, it may just be a bureaucracy-related oddity:

The NIW is an exception to the rule in that most of the other employment-based green card categories require a labor certification (done through the job sponsor with the Department of Labor, or DOL). Therefore, it makes sense that most green card petitions in the employment-based category need this labor certification form. Since NIW is just an exception, the form is also attached even if it is with much less information. More on this in the next section.

Which form to use: ETA-750 or ETA-9089?

I already received a few email from readers asking what to use. I always reply the same thing: I used ETA-9089. However, the USCIS website is clear in that both forms are acceptable as of September 2022. In the screenshot below, you can read the excerpt taken from the USCIS website for I-140 (link here) taken on 9/8/22:

Screenshot I-140 website ETA forms

According to this information, you have two options:

  1. Fill out parts J, K, L, and M or Form ETA-9089 (I wrote N/A on the rest of the form), OR
  2. Fill out ETA-750, part B.

Both of these forms can be found on the Department of Labor website, not USCIS! However, for the EB-2 NIW application, one of these should be sent to USCIS and not DOL as part of the I-140 application. The one of your choice should be included in duplicate.

That being said, I personally (and this is not legal advice!) prefer using ETA-9089 for the following reasons:

  • In the section Forms on the Department of Labor website, the ETA-750 form is listed under “Professional Athletes” program.
  • In the same section from the DOL website, form ETA-9089 is listed under the program Permanent (refers to Permanent Labor Certification), which makes more sense to me.
You can see how I filled form ETA-9089 when you download my real successful petition in the Downloads section.

Can I use ETA-9089 if it is expired? (as of September 2022)

Something that was brought to my attention by a reader is that ETA-9089 seems to be expired. This refers to the “expiration date” listed on top of the form. The screenshot below (taken on 9/8/22) shows this clearly:

Screenshot of form ETA-9089

Of course, I was worried about this because we all know how important it is not to submit expired forms!

However, I contacted the Department of Labor on September 2022 and received a prompt response that I reproduce below.

Screenshot email from Department of Labor on form ETA-9089

In the email, they clearly say that “employers may disregard the expiration date “07/31/2021” specified on the Application for Permanent Employment Certification”. Note that generally this form is handled by the employers, hence their mention to them.

Conclusion to Labor Certification Form

Form ETA-9089 (sections J, K, L, M) or Form ETA-750 (part B) should be enclosed in the I-140 petition to USCIS for the EB-2 NIW green card application, in duplicate.

To see a full list of the documents I added to the I-140 petition, check the post about how to assemble the I-140 application. If you want to have access to my full petition and see how I filled form ETA-9089, among other things, you can go to the Downloads section.

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14 thoughts on “Labor Certification form for EB2 NIW: ETA-750 or ETA-9089?”

  1. Carolina Saldarriaga

    Hi Oscar, a query on your form I-140 point 6a, mark no to the option if there is another form together with that, if I am going to pass along with the 9089, it is not necessary to mark yes and add?

    1. Hi Carolina, that is a really good question. In this case, you would mark “no” if you are not doing concurrent filing (filing I-140 together with adjustment of status, or I-485 and associated forms 131 and 765). Even if you must add form ETA 9089 to your petition you would still mark “no” in that box, since that form is not a USCIS form, but a Dept of Labor form. I hope this clarifies it.

      Oscar

  2. Hello Oscar,

    I see that in the Form 9089 I downloaded from your site, it is filled out in section K (Experience)… In your case, do you only fill out the one for the USA? If I am applying from outside the USA (and I have never worked there), should I fill out this section? It’s an obvious question, but I would like to know your comments.

    Thank you for your response!

  3. Hello Oscar, I’ve just downloaded the ETA-9089, it seems they’ve changed the version.

    the sections J, K, L, and M no longer exist.

    It seems the form now is strictly asking for employer info only.

    I don’t think this form is still required in case of a self-petition.

    What do you think ?

    1. Yes, the Department of Labor issued a different one. The information is now captured in the attachments to the form.

      USCIS still accepts the previous version, which was already long expired. You can find it here https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/9089form.pdf

      You DO NEED IT, do not submit without the labor certification form

      Once USCIS updates the guidelines and describes how they will deal with the new ETA-9089 I will update the info

  4. Hi Oscar,
    I was wondering why you suggested making two copies of form 9089 and adding both to the application package. Is this something that is required? Thank you.

    1. This is something I could never verify but I keep the recommendation because it takes very very little effort to print and sign one more copy.

  5. Hello Oscar! I downloaded the ETA 9089 form, filled it out properly. I have such a question, do I need to send the form to the Department of labor, or just attach it to my petition to EB 2 NIW(USCIS) and not send it to Department of labor?

    Thank You!

  6. Hi Oscar,
    I almost finish my PhD in Entomology
    For form I-140 NIW at second page part 2 petition Type What should I choose?
    And part 4 number 6.a should I choose no if I will send application for premium processing with this?
    For form ETA-9089 new version page 5 part H (b) Occupation Type which one should I choose?

    1. Marwa, I don’t offer personalized helped here. You can see how to fill out forms by downloading my petition or even better, my online course also has lessons about it

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