The Department of Labor has released a statement announcing they will finally issue a new version of form ETA-9089. This form is known as the Application for Labor Certification and EB-2 NIW applicants need to include it in their petition package.
I say “finally” because the current version of the form had been expired for many months. However, USCIS has been accepting the expired version while the new one was going through the internal approval process.
What changes in the new version of ETA-9089?
The new form is quite different to the existing ETA-9089, and it comes with 4 appendices that contain some of the information that the current version of the form provides in its main body.
Why do EB2 NIW applicants need a Labor Certification form?
It sounds counterintuitive because as National Interest Waiver applicants, we are asking precisely for a waiver on the labor certification or PERM part of the process. And that is still true, but USCIS wants to see form ETA-9089 filled out on its parts J, K, L, and M (note this applies for the current version, not the new one). The form should not be sent to the Department of Labor for certification (like in many other green card categories that require sponsorship) but directly to USCIS as part of the application package. In this other blog post we already explained all of this in greater detail.
What parts will you need to fill out in the new version of ETA-9089?
Since the form has changed quite a bit, it is likely that USCIS will issue new guidelines soon. I would expect that Appendix A will need to be provided, since it contains much of the information that parts J, K, L, and M had on the current version of the ETA form.
This section will be updated as soon as USCIS releases the guidelines!
Timeline for the new ETA-9089 Labor Certification form
When does the new version of ETA-9089 go into effect?
The Department of Labor said on their official release that they will begin accepting this new version on May 16, 2023, so it is reasonable to think that this is the date from which EB-2 NIW should also start using this version for the USCIS submissions. However, we are still waiting for clear guidelines from USCIS so we know exactly what parts are required.
When will this new version of ETA-9089 expire?
The new version of the Labor Certification form is set to expire on October 31, 2025 according to the Draft form published by Labor.
