ETA-9089 vs. ETA-750 in EB-2 NIW: Which Form to Attach to Your I-140

The EB-2 National Interest Waiver is best known for waiving the PERM labor certification requirement — a process that would cost months of employer-sponsored labor market testing. Even so, the I-140 petition still requires a Department of Labor form attached to the filing package: the ETA-9089 or, in increasingly rare cases, the ETA-750. Knowing which one to use and how to complete it is the difference between a clean submission and an automatic Request for Evidence.

Why a DOL Form Appears in a PERM-Exempt Petition

The I-140 is a multipurpose petition: it covers EB-1, EB-2 with PERM, EB-2 NIW, and EB-3. For purposes of document standardization, USCIS requires every I-140 to include a labor certification form — even in cases where that certification has been waived by statute. For NIW petitions, the ETA-9089 serves as a formal attachment documenting the prospective job offer and the petitioner’s educational background, without requiring DOL approval.

In other words, the document enters the package as internal evidence. There is no prior DOL approval, no job posting, no recruitment of U.S. workers. The petitioner completes it, signs it, and submits it alongside the I-140; USCIS reviews only its descriptive content.

Current Version of the ETA-9089

As of June 1, 2023, the Department of Labor discontinued the previous version of the ETA-9089 (valid through May 2023) and began offering a modular structure through the FLAG portal, consisting of a main form and Appendices A through E. The new design reflects the integration of PERM into the FLAG system — and is also the format expected for NIW cases, even without an actual PERM filing.

For an EB-2 NIW package in 2026, petitioners have been following this routine:

• Complete Part C of the main section, identifying the authorized representative (if any) and basic petitioner information.
• Fill out Appendix A, covering education, progressive work experience, and other qualifications required for EB-2.
• Sign Appendix E (Final Determination), the section that would originally be signed by the employer in a PERM case and that, in a self-petitioned NIW, is signed by the petitioner.

The remaining sections and appendices — focused on recruitment process and employer justifications — are left blank for NIW cases.

Is the ETA-750 Still Accepted?

The ETA-750 was the historical predecessor of the current form, predating the creation of electronic PERM. As of 2026, the Department of Labor keeps the ETA-750 available only for certain legacy cases involving professional athletes, making its use in EB-2 NIW petitions inadvisable. The safe path is the current ETA-9089, downloaded directly from the FLAG portal or from the official DOL page at dol.gov.

Practical Tips for Completing the Form

Appendix A requests education and work experience data. Any discrepancies between what is listed there and what appears in the resume submitted with the cover letter or in the recommendation letters will create inconsistencies that an adjudicating officer will notice — and can trigger an RFE. It is strongly recommended that the same set of dates, institution names, and degree titles be used across all documents in the package.

Another sensitive point is the description of prospective activity. Appendix A must describe the intended field and role in the United States in a way consistent with the Dhanasar framework presented in the cover letter. Vague descriptions such as “independent consultant” weaken the petition; specific descriptions tied to strategic sectors strengthen it.

Where to Download the Form

The official form is always found on .gov domains: dol.gov/agencies/eta/foreign-labor/forms or at flag.dol.gov. PDF versions distributed by third parties may be outdated and should not be used. USCIS accepts the attachment as long as it is produced from the currently valid official template.

Errors That Trigger an RFE

• Omitting the ETA-9089 from the I-140 package, even when the NIW argument is well-constructed.
• Using the outdated (pre-June 2023) version of the ETA-9089 downloaded from an unofficial source.
• Leaving Appendix E unsigned.
• Discrepancies between education dates in Appendix A and the attached diplomas.
• Attempting to use the ETA-750 outside of the remaining legacy athlete cases.

The ETA-9089 does not determine the merits of the NIW — but its absence or careless completion will cost you time: an RFE delays a decision by months. Treating this attachment as a careful, formal task — aligned with the cover letter and all other supporting documents — is the path to a clean petition.

Victoria Harper

Editor-in-Chief

Meet the author

Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.