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. In this article we will discuss what parts of this form EB-2 NIW petitioners need to file.
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 up until now USCIS wanted to see the older form ETA-9089 filled out on its parts J, K, L, and M (note this applies for the old version, not the new one…check the information for the new version below). 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?
USCIS has not officially issued guidance regarding this new version of the form. However, the American Immigration Lawyers Associaction (AILA) has issued an internal note that confirms that USCIS has told attorneys to use the new version of ETA-9089 instead of the old one or of ETA-750, which was previously accepted. USCIS is also considering a corresponding revision to the language in its Policy Manial for NIW petitions.
These are the parts of the new ETA-9089 form you need to use if you are filing for EB2 NIW:
- Form ETA-9089 (main form). Link to the official form. We will have to wait for USCIS guidance to understand what parts will be needed. Looking at the form, it makes sense to fill out part C “Agent Information” with our own info as self petitioners, and part D to select that an Appendix A is being attached. All the other parts are presumably not required since they refer to the actual labor certification process that an NIW petitioner does not need to undergo.
- Appendix A. Link to the official form here. This appendix is very relevant for NIW petitioners and they will need to fill out the details about their education, training, and previous job history.
- Final Determination. Link to the official form. This form is specific to National Interest Waiver applicants so it will be a must for EB2 NIW petitioners. It is mostly a form to provide signature.
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 began accepting this new version on May 16, 2023. However, USCIS has not updated the part of the I-140 website in which they talk about this form. In fact, as of July 2023, the website is still pointing at the old expired version of ETA-9089.
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.
Can you still use the expired ETA-9089 form for your NIW application?
It is unclear, but my take on this is yes, you may use the expired ETA-9089 as of now. Why? Because the USCIS’ website for I-140 is still linking to that expired form, and gives instructions that are specific to the old version, such as having to fill out parts J, K, L, and M.
Additionally, USCIS did not provide official guidance about the new form, and we only know they accept it because of an internal note of the AILA association of immigration lawyers.
Until USCIS provides official information on the new version of ETA-9089, I am of the opinion that both forms will be accepted. Above all, make sure to include one of these versions of ETA-9089!