Understanding USCIS Guidance on Filing Form I-140 with the New ETA Form 9089

By admin From my Desk August 13, 2024

The United States Citizenship and Immigration Services (USCIS) has recently provided critical guidance on the process of filing Form I-140 using the new version of ETA Form 9089. This update is crucial for employers, attorneys, and foreign workers involved in the employment-based green card process, particularly those navigating the PERM labor certification.

Key Points from the USCIS Guidance

USCIS has clarified that there are no changes to the supporting documentation required for Form I-140 filings. This includes essential documents like proof of the petitioner’s ability to pay the offered wage and evidence of the beneficiary’s qualifications. The new guidance specifically addresses the details surrounding the updated version of ETA Form 9089.

1. Understanding the New ETA Form 9089 Documents

When the Office of Foreign Labor Certification (OFLC) certifies the new ETA Form 9089, it issues two critical documents:

The Certified Form ETA-9089: This document includes the information entered during the PERM filing, along with the certification and expiration dates.
The Form ETA-9089 – Final Determination: This two-page document is labeled “PERMANENT EMPLOYMENT CERTIFICATION APPROVAL” and is divided into four sections. It’s crucial for the Form I-140 filing.

2. Breakdown of the PERM ETA-9089 Approval Appendix

The PERM ETA-9089 Approval Appendix, which is included in the Final Determination document, consists of four sections:

Section A: Completed by the Department of Labor (DOL), this section includes vital details such as the DOL Case number, petitioner’s name, FEIN, beneficiary’s name, job title, SOC Code, filing date, determination date, and expiration date, along with the DOL’s certification signature.
Section B: The Foreign Worker’s Declaration, which must be signed by the foreign national beneficiary.
Section C: The attorney’s or representative’s declaration, which must be signed by the attorney or representative involved.
Section D: The employer’s declaration, which must be completed and signed by the employer.

3. Requirements for Form I-140 Filing

Depending on the visa classification, the requirements for filing Form I-140 vary:

Labor Certification Required (e.g., E21 (non-NIW), E32, E31, EW3): The petitioner must submit the two-page Final Determination document, signed by all parties (petitioner, beneficiary, and attorney/representative). No additional portions of the Form ETA-9089 or Form ETA-9141 need to be submitted, as the DOL transmits the data directly to USCIS.
Schedule A Certification: For Schedule A certifications (both Group I and II), the petitioner must submit the completed Form ETA-9089, Appendix A, any other relevant appendices, the signed Final Determination document, and the certified/approved Form ETA-9141. In these cases, since the DOL does not certify these forms, they do not transmit the data to USCIS.
National Interest Waiver (NIW): When seeking a National Interest Waiver, the petitioner must submit Appendix A and other relevant appendices, along with the signed Final Determination document. In these instances, the DOL does not certify the Final Determination, nor do they transmit any data to USCIS.

Conclusion

This guidance from USCIS underscores the importance of correctly completing and submitting the required documentation when filing Form I-140 with the new version of ETA Form 9089. Employers, attorneys, and foreign workers should ensure that all parties involved sign the necessary sections of the PERM ETA-9089 Approval Appendix and submit the correct forms as outlined by USCIS. Failure to adhere to these guidelines could result in delays or denials in the green card process.

At ALO, we are committed to keeping you informed and guiding you through the complexities of the immigration process. If you have any questions or need assistance with your Form I-140 filing, please do not hesitate to contact us.

This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).