Updated Filing Procedures for Form I-140
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On January 13, 2025, the USCIS announced updated filing procedures for Form I-140, Immigrant Petition for Alien Workers. These changes are in response to the U.S. Department of Labor (DOL) implementing a new system for permanent labor certifications, known as the Foreign Labor Application Gateway (FLAG), which went into effect on June 1, 2023. Here is an overview of the changes, presented side-by-side for clarity.
| Old Procedures (Before June 1, 2023) | New Procedures (After June 1, 2023) |
|---|---|
| Employers had to submit Form ETA-9089 with the Form I-140 as part of the labor certification process. | Employers now submit only the signed Final Determination from the DOL with their Form I-140 petition. |
| Form ETA-9089 (Application for Permanent Employment Certification) was completed manually, and employers submitted it directly to DOL for processing. | Employers must file Form ETA-9089 through the FLAG system, which collects more detailed information, including specific worksite locations and telecommuting options. |
| Form ETA-9089 was submitted manually to DOL for certification approval. | DOL sends an electronic Final Determination (2-page document) to the employer, which must be included with the Form I-140 petition as evidence of permanent labor certification. |
| No formal data-sharing agreement between DOL and USCIS was in place. | USCIS now receives most of the information about the permanent labor certification directly from DOL under a data-sharing agreement. |
| Employers were responsible for submitting full details of the labor certification process. | USCIS only requires a signed and printed copy of the electronic Final Determination (considered an original approved labor certification) when filing Form I-140. |
| For Schedule A Occupations, applicants had to submit an uncertified Form ETA-9089 along with other documentation. | Schedule A applicants must now submit a completed, signed uncertified Form ETA-9089 along with other supporting documentation, and a valid prevailing wage determination with tracking number in Section E, Item 1 of the form ETA-9089. |
| National Interest Waiver (NIW) petitioners are exempt from labor certification process. | Petitioners for National Interest Waivers (NIW) must submit Appendix A of Form ETA-9089 as part of their Form I-140 petition. |
What Does This Mean for Employers and Petitioners
Since June 1, 2023, USCIS has been processing Form I-140 petitions that include permanent labor certification approvals, Schedule A applications, and NIW requests based on the updated version of Form ETA-9089 used in the FLAG system. The latest updates mainly clarify documentary submission requirements, not changes to the overall process or adjudication procedures. This update simplifies the filing process for employers, as the data sharing agreement between DOL and USCIS reduced the amount of paperwork needed for most cases.
As this matter is subject to further updates, we encourage our readers to check the website regularly for updates regarding this and all matters regarding immigration law. Pasricha & Patel’s immigration department has extensive experience in handling business and personal immigration matters. Our team is happy to speak to you on your specific issues.