USCIS Announces Updated Guidance for Filing Form I-140 with the FLAG System: What Employers and Petitioners Need to Know
On January 13, 2025, U.S. Citizenship and Immigration Services (USCIS) announced updated procedures for filing Form I-140, Immigrant Petition for Alien Workers, in alignment with the U.S. Department of Labor’s (DOL) Foreign Labor Application Gateway (FLAG) system. This Federal Register notice (FRN) clarifies documentary requirements for petitions accompanied by a permanent labor certification, Schedule A application, or National Interest Waiver (NIW) request.
The updated guidance ensures transparency in filing processes and helps employers and foreign workers navigate the Form I-140 process more efficiently. Consult a Houston immigration attorney to discuss the implications of the updated procedures, key requirements, and practical tips for employers and petitioners.
What Is Form I-140?
Form I-140 is an employment-based immigrant visa petition filed by U.S. employers to sponsor foreign workers for permanent residency. It is commonly used for individuals in employment-based preference categories, such as EB-2 (advanced degree professionals or individuals of exceptional ability) and EB-3 (skilled workers, professionals, and other workers).
For many employment-based green card applicants, obtaining a permanent labor certification from the Department of Labor (DOL) is the first step. This certification ensures that hiring a foreign worker will not negatively impact the wages or job opportunities of U.S. workers. Once the labor certification is approved, it is submitted with Form I-140 to USCIS for adjudication.
Overview of the FLAG System and Form ETA-9089
On June 1, 2023, the DOL implemented the Foreign Labor Application Gateway (FLAG) system, a digital platform for processing labor certifications. As part of this transition, the DOL revised the Application for Permanent Employment Certification (Form ETA-9089) to collect more detailed information, including:
- Specific job opportunity details.
- Worksite locations, including telecommuting options.
- The foreign worker’s qualifications.
Employers who successfully file and receive labor certification approval through the FLAG system now receive a 2-page Final Determination electronically.
Key Updates from the USCIS Guidance
1. Submission of Final Determination
For Form I-140 petitions accompanied by a permanent labor certification, employers must include:
- A printed copy of the electronic Final Determination issued by DOL through the FLAG system.
- This printed copy will be considered an original, approved labor certification by USCIS.
The Final Determination must be electronically signed by:
- The DOL.
- The employer.
- The foreign worker.
- The employer’s attorney or agent, if applicable.
2. Requirements for Schedule A Applications
For Schedule A occupations (pre-certified roles such as nurses and physical therapists), Form I-140 petitions must include:
- A completed but uncertified Form ETA-9089, including all applicable appendices.
- A signed Final Determination.
- A valid prevailing wage determination (PWD) tracking number in Section E, Item 1 of Form ETA-9089.
3. Requirements for NIW Requests
For National Interest Waiver (NIW) requests, Form I-140 petitions must include:
- A copy of Form ETA-9089, Appendix A.
- A signed Final Determination.
These clarifications reinforce USCIS’s commitment to transparency and efficiency in adjudicating Form I-140 petitions.
What Does This Mean for Employers and Petitioners?
Streamlined Processes
The FLAG system enhances collaboration between the DOL and USCIS through a data-sharing agreement, reducing redundancy in the documentation process. USCIS now receives most of the information about labor certifications directly from the DOL, ensuring consistency and streamlining adjudications.
No Operational Changes
The FRN does not introduce new filing processes. Instead, it formalizes and publicizes existing requirements to align USCIS documentation expectations with the FLAG system’s procedures.
Enhanced Documentation Requirements
The emphasis on properly signed Final Determinations, inclusion of prevailing wage tracking numbers, and detailed completion of Form ETA-9089 ensures USCIS has all necessary information to process Form I-140 petitions accurately and efficiently.
Practical Tips for Employers and Petitioners
Ensure Accurate Completion of Form ETA-9089
- Employers should ensure that Form ETA-9089 is completed in full and includes all required appendices.
- The form must reflect accurate information about the job opportunity, foreign worker qualifications, and worksite details (including telecommuting options, if applicable).
Verify Signatures on the Final Determination
Ensure the Final Determination is signed by all required parties: the DOL, the employer, the foreign worker, and, if applicable, the employer’s attorney or agent. Missing signatures may lead to delays or denials.
Use the Correct Documentation for Schedule A Occupations
Include an uncertified Form ETA-9089, a signed Final Determination, and a valid prevailing wage tracking number when filing for Schedule A occupations.
Prepare a Strong NIW Petition
For NIW requests, ensure that Form ETA-9089, Appendix A, and the signed Final Determination are included. Additional evidence demonstrating the endeavor’s national importance and the petitioner’s ability to advance the endeavor is essential.
Monitor Filing Deadlines
Stay updated on prevailing wage determination and labor certification deadlines to avoid delays in filing Form I-140.
Keep Copies of All Submissions
Maintain complete and accurate records of all submitted forms, appendices, and supporting documents for reference and compliance purposes.
Contact BBA Immigration
The USCIS announcement of updated filing procedures for Form I-140 petitions reflects the evolving landscape of employment-based immigration. By aligning with the FLAG system, these updates simplify the submission process while maintaining high standards for documentation and compliance.
Employers and petitioners must stay informed about these requirements to ensure successful Form I-140 filings, whether for permanent labor certifications, Schedule A occupations, or National Interest Waiver requests. With the FLAG system’s digital enhancements and USCIS’s streamlined processes, the path to employment-based immigration has become more transparent and efficient.
If you need assistance navigating the Form I-140 process, understanding FLAG system requirements, or preparing a National Interest Waiver petition, contact BBA Immigration Law Firm. Our experienced attorneys can guide you through every step of the process and help ensure your application meets USCIS standards. Contact us today to learn more.
Source:
uscis.gov/newsroom/alerts/uscis-updates-filing-procedures-for-form-i-140
