Over a year after the Department of Labor issued a new version of form ETA-9089, USCIS has finally adopted it for EB-2 NIW petitions. The changed happened on November 6 and is reflected on the official website for I-140, specifically on the site for “Checklist of Required Initial Evidence for Form I-140”.
Until now, USCIS allowed EB2 NIW applicants to file their I-140 petition packages with either the old (expired) version of form ETA-9089 or the new version. However, they had not published any guidance on how to fill out the new form, and this new version significantly changed with respect the previous one.
How to fill out the new version of ETA-9089 for EB2 NIW
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. Most of this main form will need to be N/A by NIW petitioners since it mostly relates to a regular labor certification process with a company sponsor. The exception is part D, where we will need to select that an Appendix A is being attached.
- 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 EB-2 NIW petitioners. It is mostly a form to provide date and signature.
Is ETA-9089 mandatory in an EB-2 NIW case?
Yes, this form is mandatory and not attaching the form to your I-140 will likely result in a rejection of the whole case or an RFE (Request for Evidence).
Although the form is called “Labor Certification” form and NIW does not need this certification process, USCIS still requires applicants to attach a copy of this ETA-9089. However, keep in mind that this form is not submitted to the Department of Labor for a labor certification, or PERM process; it only goes to USCIS.
Updated Oscar’s Green Card content
From Oscar’s Green Card, we have updated all our materials to reflect these changes in requirements by USCIS. Specifically, our course now contains updated course lessons in English, Spanish, and Portuguese (with subtitles in those languages plus Chinese and Russian) to explain how to fill out these forms step by step.