The U.S. Citizenship and Immigration Services (USCIS) has issued a Federal Register notice (FRN) detailing updated procedures for submitting Form I-140, the Immigrant Petition for Alien Workers. These updates pertain specifically to cases accompanied by a permanent labor certification, applications for Schedule A designation, or requests for a national interest waiver (NIW).
On June 1, 2023, the U.S. Department of Labor (DOL) launched the Foreign Labor Application Gateway (FLAG), a new system designed to handle permanent labor certifications. Alongside this, the Application for Permanent Employment Certification (Form ETA-9089) was revised to align with the FLAG system. The updated form now gathers more comprehensive details about the job opportunity, including specific worksite locations, telecommuting arrangements, and the foreign worker’s qualifications. Employers who utilize the FLAG system and receive labor certification approvals are issued a two-page electronic Final Determination from the DOL.
The updated instructions for Form ETA-9089 specify that only a signed Final Determination must accompany Form I-140 as proof of an approved permanent labor certification. This adjustment is due to a data-sharing agreement between the DOL and USCIS, which allows most of the relevant labor certification information to be transmitted directly to USCIS.
In the FRN, USCIS clarifies that employers using the FLAG system must include a printed version of the electronic Final Determination with their Form I-140 submissions. This printed version will be considered an original, approved labor certification by USCIS. The Final Determination must be completed and electronically signed by the DOL and additionally signed by the foreign worker, the employer, and, if applicable, the employer’s attorney or representative.
The FRN also provides specific guidance for certain categories of petitions:
- Schedule A Occupations: These petitions must include a completed, uncertified Form ETA-9089 (with all relevant appendices), a signed Final Determination, and a valid prevailing wage determination tracking number in Section E, Item 1 of Form ETA-9089.
- National Interest Waiver Requests: These petitions must include a copy of Form ETA-9089, Appendix A, and the signed Final Determination.
USCIS has been adjudicating Form I-140 petitions involving permanent labor certifications, Schedule A applications, and NIW requests in line with the revised Form ETA-9089 and its appendices since June 1, 2023. Therefore, the FRN does not introduce operational or procedural changes but instead aims to inform the public about the documentary requirements associated with the FLAG system.
These updates are intended to ensure transparency and consistency in the submission and adjudication process for Form I-140 petitions.