This U.S. Citizenship and Immigration Services (USCIS) memorandum provides
the answers to your question.
- What is the difference between FORM ETA 750 and ETA 9089? Are both
considered labor certification?
The ETA-9089 replaces the ETA-750, so it is just the form being currently
used. As such, both are considered labor certification.
"... the Application for Permanent Employment Certification (Form ETA-9089)
replaced the Application for Alien Employment Certification (Form ETA-750)
on March 28, 2005."
- And either priority date can be used?
It depends on various filing dates, as outlined below, but in general it is
the earlier date.
"In general, if a petition is supported by an individual labor certification
issued by DOL, the priority date is the earliest date upon which the labor
certification application was filed with DOL.
(ii) Individual Labor Certifications Filed with DOL Prior to March 28, 2005:
The priority date for a petition supported by a Form ETA-750 labor
certification filed with DOL prior to March 28, 2005, is the earliest date
the application for labor certification, Form ETA-750, was accepted by any
office in the employment service system of DOL.
(iii) Individual Labor Certifications Filed with DOL on or after March 28,
2005: The priority date for a petition supported by a Form ETA-9089 labor
certification filed with DOL on or after March 28, 2005, is the earliest
date the application for labor certification is filed with the ETA
(iv) Re-filed Individual Labor Certifications During PERM Transition: The
priority date for a petition supported by a Form ETA-9089 labor
certification that was filed with DOL on or after March 28, 2005 as a
re-filed labor certification application after a withdrawal of a previously
filed Form ETA-750 will be the filing date that DOL specifies in Section 'O.'
of the Form ETA-9089. Please Note: As part of the implementation of the PERM
labor certification system DOL is allowing U.S. employers who have not already
had a job order placed by the SWA for labor certification applications that
were filed prior March 28, 2005, to withdraw the pending Form ETA-750 labor
certification application and re-file under the new PERM system. The new labor
certification will be assigned a new priority date unless all of the elements
relating to the job opportunity and the alien beneficiary on the newly filed
Form 9089 labor certification application are identical to the elements
specified on the Form ETA-750 (with the exception of the prevailing wage
determination.) DOL will examine the previously filed Form ETA-750 and compare
it with the newly filed Form ETA-9089 to make that determination and will
annotate the correct priority date in Section 'O.' of the Form ETA-9089."
I would suggest you read the referenced memorandum in detail.
If you need any clarification, please feel free to ask.
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