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.
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:
According to this information, you have two options:
- Fill out parts J, K, L, and M or Form ETA-9089 (I wrote N/A on the rest of the form), OR
- 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.
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:
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.
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.