POLICY MANUAL UPDATE: Labor Certification-Based Immigrant Petitions for Professional Athletes

Purpose
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy
Manual to address the U.S. Department of Labor’s (DOL) adoption of the Foreign Labor Application Gateway (FLAG) system and its impact on certain immigrant visa petitions filed on behalf of professional athletes.

Background
Starting June 1, 2023, DOL has required permanent labor certification applications to be filed using
its FLAG system. The FLAG system contains a revised Application for Permanent Employment
Certification (Form ETA-9089) as well as four appendices and a Final Determination: Permanent
Employment Certification Approval. The new Form ETA-9089 no longer collects information about
the minimum requirements of the job opportunity. Instead, aliens now provide that information to
DOL using the Application for Prevailing Wage Determination (Form ETA-9141).

Because DOL regulations exempt professional athletes from the prevailing wage determination
requirement, under the FLAG system, labor certification approvals for professional athletes do not
contain the minimum requirements for the job. As detailed below, USCIS requires this information to
adjudicate labor certification-based immigrant petitions.

Petitioners generally file labor certification-based immigrant petitions for professional athletes in the
EB-2 aliens of exceptional ability or EB-3 skilled worker categories. In order to determine whether a professional athlete qualifies as an alien of exceptional ability or a skilled worker, USCIS must review the requirements of the offered position.

Accordingly, USCIS is issuing this policy guidance to explain that, for labor certification-based immigrant petitions filed on behalf of professional athletes, if the minimum requirements of the offered position are not stated on the labor certification or in the supporting documentation submitted with the Immigrant Petition for Alien Workers (Form I140), then USCIS may issue a request for evidence in order to obtain this information.

This guidance, contained in Volume 6 of the Policy Manual, is effective immediately and applies to
requests pending or filed on or after the publication date.