Tuesday, December 15, 2020


As part of its process in retiring the previously used, Adjudicator’s Field Manual, USCIS recently released updated guidance on Schedule A designations in its Policy Manual. While the guidance is substantively unchanged for the most part, USCIS has added more detail which will hopefully result in more consistent adjudication.  This chapter in the Policy Manual can be found in its entirety on the USCIS website:


Here are two notable changes/updates: 

No Requirement for end-client contracts.  Employers that staff Physical Therapists or Registered Nurses at third party worksites will be pleased to find that USCIS has explicitly stated in the Policy Manual that there is no requirement for an employer to provide contracts between itself and its clients. Over the past several years our firm had seen an increasing trend of RFEs requesting such contracts. It would seem that USCIS is at the very least acknowledging that client contracts are not an evidentiary requirement. 

USCIS still retains the right to request such contracts if it has a “reasonable and articulable reason” that there is not a bona fide job offer available. Therefore, while USCIS acknowledges that it is not a requirement, it is likely that the Service will still make requests for client contracts, but perhaps in less cases. 

Only one 9089 is required, perhaps.  Traditionally, a Schedule A, I-140 petition required two uncertified ETA Form 9089s with original signatures. The requirement for a duplicate ETA Form 9089 is no longer present in this update. Historically, USCIS required a duplicate copy so that upon approval, USCIS would retain a copy, and the other would be provided to the DOL. That process is also missing from the Policy Manual now, and instead it indicates that USCIS will simply retain the ETA Form 9089 whether the petition is approved or denied. Without further confirmation of this change though, it would be prudent to still include the duplicate copy with the I-140, but our firm will monitor if further clarification is made by USCIS.

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