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[Federal Register Volume 90, Number 8 (Tuesday, January 14, 2025)]
[Notices]
[Pages 3238-3240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00582]

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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

[CIS No. 2793-25; DHS Docket No. USCIS-2024-0018]

Notice of DHS's Requirement of the Permanent Labor Certification 
Final Determination for Form I-140 Petitions

AGENCY: U.S. Citizenship and Immigration Services, Department of 
Homeland Security.

ACTION: Notice.

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SUMMARY: The Department of Homeland Security, U.S. Citizenship and 
Immigration Services, is announcing updated procedures for submitting a 
Form I-140, Immigrant Petition for Alien Workers, accompanied by a 
permanent labor certification approval, application for Schedule A 
designation, or National Interest Waiver request following the U.S. 
Department of Labor's implementation of the Foreign Labor Application 
Gateway system.

DATES: This notice is applicable January 14, 2025.

FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and 
Foreign Workers Division, Office of Policy and Strategy, U.S. 
Citizenship and Immigration Services, Department of Homeland Security, 
5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-
3000 (this is not a toll-free number). Individuals with hearing or 
speech impairments may access the telephone numbers above via TTY by 
calling the toll-free Federal Information Relay Service at 1-877-889-
5627 (TTY/TDD).

SUPPLEMENTARY INFORMATION: The Immigration and Nationality Act (INA), 
as amended, established employment-based immigrant visa preference 
classifications. Specifically, section 203(b) of the INA, 8 U.S.C. 
1153(b), makes immigrant visas available to noncitizens who qualify 
under the following classifications: individuals with extraordinary 
ability, outstanding professors or researchers, and certain 
multinational executives and managers (EB-1) under section 203(b)(1) of 
the INA; individuals who are members of the professions with advanced 
degrees or of exceptional ability (EB-2) under section 203(b)(2) of the 
INA; and professionals, skilled workers, and other workers (EB-3) under 
section 203(b)(3) of the INA.
    Sections 204(a)(1)(E) and (F) of the INA, 8 U.S.C. 1154(a)(1)(E) 
and (F), require individuals or employers to file petitions with DHS 
when seeking classification under section 203(b)(1), (2), or (3) of the 
INA. These petitions are filed using Form I-140, Immigrant Petition for 
Alien Workers.

Permanent Labor Certifications

    Section 212(a)(5)(A) of the INA, 8 U.S.C. 1182(a)(5)(A), states 
that any alien who seeks to enter the United States for the purpose of 
performing skilled or unskilled labor is inadmissible, unless the 
Secretary of Labor has determined and certified to the Secretary of 
State and Secretary of Homeland Security that:
     there are not sufficient workers who are able, willing, 
qualified (or equally qualified in the case of an alien described in 
clause (ii)), and available at the time of application for a visa and 
admission to the United States and at the place where the alien is to 
perform such skilled or unskilled labor; and
     that the employment of such alien will not adversely 
affect the wages and working conditions of workers in the United States 
similarly employed.
    This provision also sets out special rules for certain members of 
the teaching profession and for individuals who have exceptional 
ability in the sciences or the arts. In addition, INA section 
212(a)(5)(B), 8 U.S.C. 1182(a)(5)(B), provides separate rules for the 
admission of unqualified physicians.
    Under INA section 212(a)(5)(D), 8 U.S.C. 1182(a)(5)(D), the grounds 
of inadmissibility in paragraphs (A) and (B) apply to intending 
immigrants seeking admission or adjustment of status under the EB-2 and 
EB-3 preference classifications. Accordingly, a Form I-140 petition 
filed under the EB-2 and EB-3 preference classifications must be 
accompanied by an approved permanent labor certification, an 
application for Schedule A designation,\1\ or a request for an 
exemption from the job offer/permanent labor certification requirement, 
if such an exemption would be in the national interest (National 
Interest Waiver).\2\ Form I-140 petitions for sheepherders filed under 
20 CFR 656.16 also do not need to be filed with a DOL-approved 
permanent labor certification.
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    \1\ 8 CFR 204.5(k)(4)(i), (l)(3)(i).
    \2\ 8 CFR 204.5(k)(4)(ii).
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The PERM Labor Certification Process Prior to the Foreign Labor 
Application Gateway System

    Before the implementation of the new Foreign Labor Application 
Gateway (FLAG) system on June 1, 2023, when DOL approved a permanent 
labor certification application, DOL sent an original approved Form 
ETA-9089, Application for Permanent Employment Certification, and final 
determination and letter to the employer, or to the employer's 
authorized attorney or agent, whichever is applicable. The employer was 
required to sign and retain a signed copy of the certified Form ETA-
9089.\3\ The employer or its authorized attorney or agent then had to 
file a Form I-140 petition with USCIS together with the original paper 
labor certification approval, any other supporting documentation, and 
the appropriate fees.
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    \3\ 20 CFR 656.10(f).
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    Petitioners filing Form I-140 petitions for Schedule A occupations 
or with National Interest Waiver requests had to submit an uncertified 
Form ETA-750B (now discontinued), or the Form ETA-9089. In addition, 
Schedule A employers were required to submit a prevailing wage 
determination (Form ETA-9141) \4\ and evidence that a notice of filing 
the Application for Permanent Employment Certification was provided to 
the bargaining representative or the employer's employees.\5\
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    \4\ 20 CFR 656.15(b).
    \5\ 20 CFR 656.10(d)
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Transition of PERM to the New Form ETA-9089 and Foreign Labor 
Application Gateway System

    On Oct. 25, 2022, DOL received approval from the Office of 
Information and Regulatory Affairs within the Office of Management and 
Budget for the use of the revised Form ETA-9089, Application for 
Permanent Employment

[[Page 3239]]

Certification.\6\ The revision significantly changed the application by 
creating a basic form as well as four appendices.\7\ The revision also 
included a new Form ETA-9089--Final Determination: Permanent Employment 
Labor Certification Approval (Final Determination) for when DOL 
approves the permanent labor certification application. An uncertified 
Final Determination form is also signed by Form I-140 petitioners for 
Schedule A applications and National Interest Waiver requests being 
submitted directly to USCIS.\8\
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    \6\ See Notice of Office of Management and Budget Action, Oct. 
25, 2022, https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=1205-0451#.
    \7\ Form ETA-9089--Appendix A: Foreign Worker Information; Form 
ETA-9089--Appendix B: Additional Worksite Information; Form ETA-
9089--Appendix C: Supplemental Information; Form ETA-9089--Appendix 
D: Special Recruitment for College and University Teachers. See 
https://www.dol.gov/agencies/eta/foreign-labor/forms.
    \8\ See ``NOTE: Form ETA-9089, Final Determination is for 
completion and submission ONLY when submitting Form I-140 to USCIS 
in support of a Schedule A or National Interest Waiver. When 
submitting the form to USCIS, please sign and submit a fully 
executed copy of page 2 along with Form ETA-9089 and the appropriate 
appendices.'' https://www.dol.gov/agencies/eta/foreign-labor/forms 
(last visited on Nov. 14, 2024).
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    On April 11, 2023, DOL announced two webinars: one to provide an 
overview of the revised Form ETA-9089, and another to provide 
stakeholders with updates regarding the modernization of the PERM 
program and transition to the FLAG system.\9\ On April 21, 2023, DOL 
announced that it would require the revised Form ETA-9089, Application 
for Permanent Employment Certification, in the FLAG system starting on 
May 16, 2023.\10\ This date was later postponed to June 1, 2023.\11\
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    \9\ See April 11, 2023. OFLC Announces Technical Webinar on 
April 20, 2023, to Provide Stakeholders an Update to the Permanent 
Labor Certification (PERM) Program Modernization Process and April 
11, 2023. OFLC Announces Webinar on April 19, 2023, to provide an 
overview of the Form ETA--9089; https://www.dol.gov/agencies/eta/foreign-labor/news (last visited Nov. 14, 2024).
    \10\ See April 21, 2023. Office of Foreign Labor Certifications 
Announces Form ETA-9089 Case Creation and Case Submission in Foreign 
Labor Application Gateway, https://www.dol.gov/agencies/eta/foreign-labor/news (last visited Nov. 14, 2024).
    \11\ May 11, 2023, Office of Foreign Labor Certification 
Postpones Date for Submitting Revised PERM and CW-1 Forms in the 
Foreign Labor Application Gateway to June 1, 2023; and May 26, 2023, 
OFLC announces case submission for the Form ETA 9089 for PERM in 
FLAG on June 1, 2023, https://www.dol.gov/agencies/eta/foreign-labor/news (last visited Nov. 14, 2024).
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    As a part of the PERM program modernization efforts, DOL modified 
how it collects certain information from employers. For example, and as 
explained in the instructions to the Form ETA-9089, DOL is no longer 
collecting information about the job opportunity that was previously 
included in section H on the prior version of Form ETA-9089 (which 
included information about the primary worksite, job title, education, 
and experience, as well as an open text box for providing additional 
information or facts about the case).\12\ Instead, the DOL FLAG system 
is pulling that information from the electronically-processed Form ETA-
9141, Application for Prevailing Wage Determination, into the Form ETA-
9089.
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    \12\ See Section E Job Opportunity and Wage Information Note; 
current Form ETA-9089--General Instructions, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA-9089%20General%20Instructions%20-%20508%20Compliant%20-%20Expires%2010-31-2025.pdf (last visited Nov. 14, 2024).
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    Employers who file the new Form ETA-9089, including all applicable 
appendices, through the FLAG system and are granted a permanent labor 
certification, will receive a Final Determination electronically.\13\
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    \13\ Employers may obtain a copy of the final decisions from the 
Historical table in the My Cases tab of their FLAG account. See 
DOL's Frequently Asked Questions; https://flag.dol.gov/support/FAQ#cases (last visited Nov. 14, 2024), under the question, ``How 
can I find a copy of my issued application?''
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    In circumstances where the employer or, if applicable, its 
authorized attorney or agent, is not able to receive the approved 
permanent labor certification documents electronically, DOL will send a 
physical copy of the Form ETA-9089 and Final Determination to the 
appropriate address.
    Instructions to the Form ETA-9089 require that the relevant parties 
sign Sections B, C, and D of the Final Determination resulting in 
certification immediately upon receipt from DOL before the Form I-140 
petition can be filed with USCIS. The instructions also state that when 
DOL enables the electronic filing system to receive electronic 
signatures, the employer, foreign worker, attorney, agent, and 
preparer, as appropriate, will be required to sign the labor 
certification electronically before submission.\14\
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    \14\ See https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/ETA-9089%20General%20Instructions%20-%20508%20Compliant%20-%20Expires%2010-31-2025.pdf (last visited Nov. 14, 2024).
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    With the exception of the few employers who still file their Forms 
ETA-9089 by mail, DOL will generally only provide the Final 
Determination to an employer electronically. With the publication of 
this notice, USCIS is announcing on its website that employers whose 
permanent labor certification applications were processed in FLAG must 
include a printed copy of the electronic Final Determination with their 
Form I-140, and that USCIS will consider this printed copy as an 
original, approved labor certification.\15\
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    \15\ See USCIS Updates Filing Procedures for Form I-140, 
available at https://www.uscis.gov/news/alerts.
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    USCIS is formally announcing through this notice that for Form I-
140 petitions that must be accompanied by a DOL-approved labor 
certification, a printed copy of the Final Determination, completed and 
electronically signed by DOL, and signed by the foreign worker, 
employer, and the employer's attorney or agent, if applicable, must be 
submitted with a Form I-140 petition. This printed copy of the two-page 
determination satisfies the DHS regulatory requirement that petitioners 
submit an individual labor certification. 8 CFR 204.5(a)(2). As 
discussed above, this change in USCIS procedure aligns with DOL's 
change in its procedures, as DOL has transitioned to a new electronic 
filing and application processing environment. This means that DOL 
generally no longer provides the employer and, if applicable, the 
employer's authorized attorney or agent, with a paper copy of a 
certified Form ETA-9089. This change in process is also appropriate 
since in most circumstances, USCIS will no longer need to reference a 
paper copy of a certified Form ETA-9089 (and its appendices) because 
USCIS and DOL have in place an information sharing process that allows 
USCIS to validate substantive elements of the approved permanent labor 
certification and prevailing wage determination based on case 
information DOL supplies directly to USCIS.\16\
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    \16\ See https://www.dhs.gov/publication/dhs-uscis-pia-044-validation-instrument-business-enterprises (last visited November 
14, 2024).
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    There may be limited circumstances when DOL is able to adjudicate a 
permanent labor certification electronically but is unable to send an 
electronic certification to an employer (or its authorized agent, if 
applicable). In those rare instances, DOL will mail a paper copy of the 
electronic certification to the employer (and/or its authorized agent, 
if applicable). The electronic certification will not be printed on 
blue security paper. As with electronically issued certifications, the 
paper-based and signed final determination satisfies the DHS regulatory 
requirement that petitioners submit an individual labor certification. 
DOL does not anticipate circumstances

[[Page 3240]]

where it would need to revert to a paper-based adjudication process.
    Additionally, USCIS notes that the submission of a printed copy of 
the electronic ETA-9089 Final Determination does not preclude USCIS 
from issuing a request for evidence or a notice of intent to deny in 
certain warranted circumstances, including but not limited to, when the 
electronic systems are unavailable for validation, or the Final 
Determination document is substantively inconsistent with the 
information provided by DOL in FLAG regarding that labor certification 
determination. In those instances, USCIS will request that a petitioner 
(or its authorized agent, if applicable) submit documentation, 
including but not limited to a copy or copies of the complete certified 
Form ETA-9089 and all applicable appendices.
    Form I-140 petitions for Schedule A occupations must contain a 
completed, uncertified Form ETA-9089, including all applicable 
appendices, a signed Final Determination, and a valid prevailing wage 
determination tracking number in Section E, Item 1 of the Form ETA-
9089. This tracking number will allow USCIS to associate the 
uncertified Form ETA-9089 with the corresponding prevailing wage 
determination issued by DOL. In circumstances of system outage, 
scheduled maintenance, or other event preventing the electronic 
issuance of prevailing wage determinations and transmission of 
prevailing wage determination data from DOL to USCIS, USCIS may request 
that the employer or the employer's authorized representative submit a 
copy of the prevailing wage determination (Form ETA-9141).
    Form I-140 petitions for sheepherders under 20 CFR 656.16 will need 
to contain a completed, uncertified Form ETA-9089, including all 
applicable appendices, a signed Final Determination, and the valid 
prevailing wage determination tracking number for the corresponding 
DOL-issued Form ETA-9141.
    Finally, a Form I-140 petition with a National Interest Waiver 
request will need to contain a copy of the Form ETA-9089, Appendix A, 
and a signed Final Determination.

Ur M. Jaddou,
Director, U.S. Citizenship and Immigration Services, Department of 
Homeland Security.
[FR Doc. 2025-00582 Filed 1-13-25; 8:45 am]
BILLING CODE 9111-97-P
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