This is the first time that the USCIS is releasing this type of I-485 information.  They expect to update the numbers every quarter.  Sharing of the I-485 inventory information is extremely useful for applicants.  At least they now know where they stand in line.

Questions & Answers: Pending Employment-Based Form I-485 Inventory

Q: Why is the wait so long for my employment-based green card?

A: A visa must be available before a person can obtain an employment-based green card.  Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately.  Therefore, some people have to wait in line until a visa is available.  The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year.  About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad.  Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa.   How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

Q: How can I determine my place in line based on my priority date?

A: Your preference category, priority date, and country of origin determine your place in line for a visa.  The earlier your priority date is, the closer you are to the front of the line.   To better assist you in knowing your place in line, we are posting a report of our total pending inventory of applications for employment-based green cards (Form I-485, Application to Register Permanent Residence or Adjust Status) for those seeking to adjust status in the United States.  See the “Pending Employment-Based Form I-485 Report” link to the right.  We are also posting five other reports by country of chargeability (China, India, Mexico, Philippines, and All Other Chargeability) (see the links to the right).

The “Pending Employment-Based Form I-485 Report,” displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

The All Other Chargeability report shows how many applicants from countries other than China, India, Mexico, and the Philippines have priority dates in a given month and year.  The report is broken down into separate charts for each preference classification.  If you are from a country other than China, India, Mexico, or the Philippines, you can use this chart to determine how many applicants for adjustment of status in the same preference classification have a priority date in the same month and year as your own.  This chart also lets you know how many applicants in the same preference classification have earlier priority dates.

Because of historically higher demand for visas from China, India, Mexico, and the Philippines, each of those countries has its own separate report.  As published in the DOS Visa Bulletin, applicants from those countries will need to have earlier priority dates than like applicants from other countries to get a visa in any given month.  If you are from China, India, Mexico, or the Philippines, you may want to use the report for your particular country.  Your country report will show you how many applicants from the same country and preference classification have a priority date in the same month and year as your own.  The report will also let you know how many applicants from the same country and preference classification have earlier priority dates. 

Q: Which report should I use, the Pending Employment-Based Form I-485 Report or the country-specific reports?

A: All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa.  Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand.  In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand.  Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.  

Q: What information do I need to have before using the pending Form I-485 inventory reports?

A: You need to know your priority date and your preference category to use the pending Form I-485 inventory reports.  For more information on priority dates and preference categories, see the “Visa Availability & Priority Dates” and “Green Card Eligibility” links to the right.

Q: How do I read the pending I-485 inventory reports?

A: First, click on the link to the report you want to view. Once you click on the link, the report will appear and you will see a series of charts, one for each preference category.  You will see that each chart has different numbers for each month and year.   These numbers show how many green card applicants have priority dates in that month and year.  To figure out how many applicants have earlier priority dates, add all the numbers from all the cells that correspond to earlier months. 

Q: Can you tell me when I will get a visa?

A: Unfortunately, we cannot determine how long it will take for you to get a visa.  However, we hope that by showing applicants with a pending Form I-485 where they stand in line to get a visa, you will get a better sense of how long it may take.  We intend to update the data in these reports quarterly.  By comparing newer versions of the reports with older ones, you may see that the number of applicants ahead of you has gotten smaller, and you may be able to tell how much shorter the line has become.  We hope this will give you an even better sense of how long it may take for you to get a visa. 

Q: Can you provide me an example of how to use the pending Form I-485 inventory charts?

A: Assume your priority date is in January 2007, your petition was approved for third preference, and you are from China.  Using the Sample “Pending Employment-Based Form I-485 Report,” below you will see on the third preference chart that there are 2,618 applicants with a priority date in the same month and year as your priority date. 

If you want to find out how many third-preference green card applicants have an earlier priority date than yours, you will need to add all the numbers starting with the number at the beginning of the table, January 1997, and ending with the number immediately before the month and year of your own priority date, December 2006.  You will see that there are 131,341 third-preference applicants who have a priority date earlier than yours.  See the chart below.

Sample “Pending Employment-Based Form I-485 Report"

Q: How do I know how many applicants from my country have an earlier priority date than mine?

A: Assume your priority date is in June 2005, your petition was approved for third preference, and you are from India.  Using the Sample “I-485 Inventory for Individuals Born in India Report” below, you will see that there are 175 green card applicants from India with a priority date in June 2005.

To find out how many applicants born in India have an earlier priority date than yours, add all the numbers starting at January 1997 and ending at May 2005. You will see that there are 42,796 third-preference applicants from India with a priority date earlier than yours.  See the chart below.

Sample I-485 Inventory for Individuals Born in India Report

Immigration Case Status Inquiries with the Service Centers

The U. S. Citizenship and Immigration Services (USCIS) has issued instructions on making inquiries with the agency's four Service Centers. This new process standardizes customer service and streamlines processing of customer inquiries at USCIS Service Centers. They can be used by applicants and their attorneys and representatives to make case status inquires.  The step-by-step instructions are as follows. 

However, it should be noted that one must still follow the procedures for filing an appeal, motion to reopen, or a response to motion to reopen.  These procedures follow a very strict set of deadlines and should not be confused with the following standard case inquiry steps.

Step 1: Contact the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC can assist customers, community-based organizations and liaison groups with case related inquiries. Before calling the NCSC please have available your receipt number, alien registration number, type of application filed and date filed. During your call we recommend that you take note of the following information:

-The name and/or id number of the NCSC representative

-The date and time of the call

-Any service request referral number, if a service referral on a pending case is taken

Step 2: If more than 30 days have passed since you contacted the NCSC and the issue has not been resolved or explained you can email the proper USCIS Service Center to check the status of your case.

-California Service Center: csc-ncsc-followup@dhs.gov

-Vermont Service Center: vsc.ncscfollowup@dhs.gov

-Nebraska Service Center: ncscfollowup.nsc@dhs.gov

-Texas Service Center: tsc.ncscfollowup@dhs.gov

Please note: Emails should be sent to the Service Center that has jurisdiction over your case. The receipt notice will indicate EAC for the Vermont Service Center, SRC for the Texas Service Center, LIN for the Nebraska Service Center, and WAC for the California Service Center.

When contacting the Service Centers by email you will need to provide the information outlined in Step 1. If the NCSC did not issue a service request after your call, please indicate the reason the NCSC representative did not issue the request.

Step 3: In the event you do not receive a response within 21 days of contacting the appropriate Service Center, you may email the USCIS Headquarters Office of Service Center Operations by email at: SCOPSSCATA@dhs.gov. You will receive a response from this email address within ten days.

The U.S. immigration laws allow a U.S. citizen to bring his or her fiance(e) to the United States.  There are several ways to do it, depending on the specific set of circumstances of the parties involved.

1) Your fiance(e) is in an overseas country.

This is probably the most common situation. A U.S. citizenship met a foreign national and they fall in love and decide to get married.  But how - they are in two different countries.  Well, there is a visa called the K-1 fiance(e) visa, which allows the foreign national to enter the U.S. with the sole purpose of marrying the petition.  The marriage must take place within 90 days or the visa will be void and the foreign national must depart the U.S.  To apply for a fiance(e) visa, the U.S. petitioner must start the process in the U.S. by filing a Form I-129F, Petition for Alien Fiance(e), along with the required documentation and proof of relationship.  One of the requirements is that the parties must have met each other at least once, although it can be waived in exceptional situations.  If the I-129F is approved, the case will be sent to the National Visa Center for further processing.  Finally, the case will be forwarded to the overseas American consulate office nearest to the fiance(e)'s place of residence.  Additional forms and documents will need to be prepared before a visa interview will be scheduled.  If a fiance(e) visa is issued, your fiance(e) will then be allowed to enter the U.S. to marry you.  Remember the marriage must take place within 90 days or she would have to depart the U.S.  After your marriage, your fiance(e) may then apply for permanent residence status (or green card) by filing a Form I-485, Application to Register Permanent Residence or to Adjust Status.

2) Your fiance(e) is in the U.S. legally in another status.

If your fiance(e) happens to be in the U.S. in another legal status such as a foreign student or visitor, then a finance(e) visa would not be appropriate.  Instead, you should marry him or her directly and apply for adjustment of status directly along with a Form I-130, Petition for Alien Relative.  Documents that show financial support and that your relationship is truthful must also be filed.  An interview will be scheduled for the two of you to determine the bona fides of your relationship, similar to those that you see in movies.

3) Your fiance(e) is in the U.S. illegally.

Generally speaking if your fiance(e) entered the U.S. unlawfully, he or she would not be allowed to apply for permanent residency status.  If he or she entered lawfully but his or her status lapsed, then it might still be possible to apply for legal status.  Either way, you should speak to a qualified immigrant lawyer immediately for an evaluation.

Warnings: The above information is only current at the time of writing and is subject to change without prior notice.  Do not rely solely on it without consulting with a qualified attorney.   Do not lie about the purposes of coming to the U.S. when applying for a visa.  Do not file an fraudulent applications with the government or you will become ineligible to apply for immigration benefits in the future.

            The State Department publishes the visa bulletin every month to inform intending immigrants the availability of visa numbers in different preference categories.  Because the numbers of immigrants who may enter the U.S. are limited by law, certain categories of applicants sometimes have to wait for many years before they can immigrate to the U.S.  For example, the Department of State has determined the family preference numerical limits for FY-2009 is 226,000 and the employment preference numerical limits for FY-2009 is 140,000.  Additionally, under Section 202(A) of the Immigration and Nationality Act, there is a per-country limit fixed at 7% of the family and employment annual limits.  For FY-2009 the per-country limit is 25,620. 

            For August 2009, the most notable change is the second preference category in employment immigration, which jumps by close to four years to October 2003 from January 2000 last month for China and India.  All other first and second preference categories including the Philippines remain current, meaning that the applicants are eligible to receive a visa number now. Unfortunately, employment third preference remains unavailable for professionals, skill workers, and other workers in all areas.

            On the family side, there is some nice overall advancement for most preference categories.  For the Philippines, for example, all family categories advance one month except F1 (unmarried sons and daughters of U.S. citizens), which retains the same cutoff date of September 1, 1993.  Other preference categories have moved up for more than one month such as F1 for China, India and Other Areas; and F2A and F4 for Mexico.  As we move towards the end of the fiscal year, the State Department will attempt to use up all the remaining visa numbers available. 

            In August, the Diversity Visa category continues to be available to winners of the visa lottery in the DV-2009 program.  The lottery winners will receive notification from the State Department or may check the result electronically by accessing the State Department website.  The 2009 annual limit has been set to 50,000.  DV visas are divided among six geographic regions with no one country receiving more than seven percent of the available visas in any one year. Countries which are deemed to have sent enough immigrants to the U.S. including China, India, the Philippines, Mexico, etc., are not eligible to apply.  However, if nationals from these countries, their spouses, or their parents were born in other eligible countries, they may still be eligible to apply. 

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of residents.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of residents.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

Sch A: RN/Physical Therapist & Exceptional Ability

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)

By Paul Szeto, Esq.

            The 4th of July reminded us of the Statute of Liberty, which was presented by the people of France to the U.S.A. in 1886 to commemorate the centennial of the signing of the U.S. Declaration of Independence.  The statute has been standing tall on Liberty Island in New York Harbor for more than a century without much change.  It has welcomed countless visitors and immigrants traveling to the U.S. by ship or air.  It is also the recognized symbol of freedom and democracy displayed in books, posters, stamps, artwork and even business logos.  Every year, as newcomers arrive in the U.S. to pursue a new life, many of their predecessors swear to become American citizens.

            While the Statute of Liberty has not changed much over the years, the nature of American citizenship has acquired a new significance.  American citizenship still confers many benefits to its holders, allowing them to apply for a U.S. passport, to apply for government jobs, to vote in elections, and to travel internationally without limitation.  Speaking more pragmatically, American citizenship also opens the door to more business opportunities for entrepreneurs as U.S. citizenship is required for many government contracts.  Don’t forget the shorter lines at the airport when travelers are returning from overseas countries. 

            True, all these are great benefits of holding a U.S. passport.  But there are also other meanings to acquiring American citizenship.  For one thing, to be American carries a certain sense of pride that Americans are not shy to express.  Although it may not be safe to use an American passport in certain parts of the world, very few Americans would hide their identity just to avoid dangers.  Youngsters from all over the world idolize our movie stars, crave for McDonald's French fries, and hack into our computer systems just to take a glimpse of our IT systems.  My clients always tell me about how they are treated more politely as American citizens when they return to their  countries of origin to do business.  Their applications are also processed more efficiently. 

            It has been said that America is a big "melting pot" - signifying the diversity of people from different backgrounds living together.  Nobody would doubt the validity of this phrase by just visiting one of the many naturalization oath ceremonies in the U.S.  Typically you see applicants of different ages and nationalities seated together for one common goal - to be an American.  Never mind they may have come different continents or countries that had fought each other before.  Never mind they may have come from different neighborhoods, and worship at different churches and temples.  Naturalization binds them together forever (almost) at the moment when they swear to be loyal to the American soil. 

            Statistics also support what we see.  According to the Yearbook of Immigration Statistics published by the Department of Homeland Security, in 2008 there were 1,046,539 persons who become naturalized American citizens.  They came from all continents of the world and more than 200 countries, from China to Taiwan, Afghanistan to Zimbabwe, Austrialia to Turkey.   The top countries of origin include Mexico (231,815), India (65,971), Philippines (58,792), China (40,017), Cuba (39,871), Vietnam (39,584) and El Salvador (35,796).   Only five persons from U.S. Virgin Islands became naturalized in 2008.  Such great diversity is not repeated any where in the world.  The amazing thing is that people with such different backgrounds can live and work together in peace and harmony for the most part.  One of the reasons for our success is the almost certain way for willing legal residents to become U.S. citizens through naturalization after five years of residence, attracting people especially those talented to come here for a better future.  Some countries such as Germany also tried to attract high-tech workers to work there by offering them green cards about ten years ago.  However, the German plan failed to attract talent to apply because German citizenship was not offered regardless of how long one has been a legal resident.  Without citizenship, the sense of belonging is just not there.

            Even when the U.S. is struggling with its economy and health care issues, countless immigrants still continue to come here to pursue their American dream.  Perhaps being an American is not only about money and success.  Perhaps the Statute of Liberty stands for more than freedom and democracy.  Perhaps the true value of American citizenship can only be measured by what share together and our pride.

(Paul Szeto, an immigration lawyer and former INS attorney, regularly writes on immigration issues. His contact info: 732-632-9888, www.szetolaw.com)

On May 20, 2009, the U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo on the requirements for H-1B beneficiaries seeking to practice in a health care occupation. The purpose of this memo is to clarify the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation.  

As a starting point, the adjudicators are to consult the U.S. Bureau of Labor Statistics’ Occupational Outlook Handbook (OOH) to determine whether the position being offered qualifies as a specialty occupation as defined the Immigration and Nationality Act (INA).   However, if the OOH does not contain the required information about the profession, adjudicators may consult other authoritative sources that indicate whether the position in question qualifies as a specialty occupation (e.g., State licensing board standards). If there are more than one authoritative source exists, an adjudicator are advised to consider all evidence and sources before making a decision  whether an applicant qualifies to perform in a specialty occupation.

Beneficiary in Possession of a License

For beneficiaries who possess a valid license to practice a health care occupation in the state in which the beneficiary will be employed, the beneficiary will be considered to meet the qualifications to perform services in a specialty occupation for the purposes of the H-1B program.  The adjudicators do not need to investigate further.   However, the foreign worker will still need to provide certificate from the CGFNS or other equivalent organization that his qualifications are equivalent and comparable to the U.S. standards and his command of English is sufficient for the profession.

For those applicants who have an unrestricted license for the health profession, and the petition is otherwise approvable, an adjudicator should approve the H-1B petition for the full three year or the maximum period allowed by the labor condition application (LCA).  This USCIS memo specifically points out that the renewal date of a unrestricted license should not be a consideration when setting the validity period.  On the other hand, if the applicant possesses only a restricted license, she should only be approved for a period of one year, or until the end of the licensing period, whichever is longer.

Beneficiary not in Possession of a License

Generally speaking, a health professional must obtain a required license from the state in which he will be working.  However, there are some states or health professional boards which would not issue a license before the applicant has been granted a legal employment status (e.g., H-1B) or a social security number.  In these situations, the applicant is caught in a chicken and egg problem because without the license he would not be able to get his legal status and social security number.  To help resolve this dilemma, the memo advises the adjudicator to first ascertain the requirements for licensure (including educational degree requirements) in the health care occupation in that state to determine whether the beneficiary possesses the qualifications to perform the job duties based on regulatory requirements.  If the adjudicator cannot make a determination, he or she may issue a request for evidence (RFE) asking the petitioning employer to provide additional evidence regarding the state licensures requirements  Furthermore, the beneficiary must also establish that he/she did attempt to apply for a license in accordance with state or local rules and procedures, but cannot obtain a full unrestricted license in the state in which he/she will practice due to the requirement for possession of a social security card, valid immigration document, and/or physical presence in the United States in the form of a letter from the State Board.

After gathering all the requirements, an adjudicator, if convinced that the applicant qualifies for H-1B status, may approve the H-1B petition for a period of one year. It should be noted that such an approval does not in any way endorses the approval of the state license.  The USCIS memo emphasizes that it is merely a means to facilitate the state or local licensing authority’s issuance of such a license to the alien, provided all other requirements are satisfied. For this group of cases, any future requests for extension of status must be filed with evidence that the applicant has been granted a valid unrestricted license to practice the health care occupation in the state in which he/she will be working. Without a valid unrestricted license at the time the extension of stay petition is filed, the application for extension of H-1B status will be denied. Generally speaking, a health professional must obtain a required license from the state in which he will be working.  However, there are some states or health professional boards which would not issue

www.szetolaw.com

USCIS, P.O. Box 21262, Phoenix, AZ 85036.

For U.S. Postal Service (USPS) Express Mail/courier deliveries, use:

USCIS, ATTN: I-90, 1820 Skyharbor, Circle S Floor 1, Phoenix, AZ 85034.

The electronic filing instructions filing for this form have not been changed.

How Do I Apply to Bring a Foreign-Born Orphan to the United States?

U.S. Immigration law allows an American citizen to petition for a foreign orphan to enter the U.S. as an immigrant.

A foreign-born child is considered an orphan if she does not have a parent because of “the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents.”  A foreign-born child is also an orphan if his or her sole or surviving parent is incapable of providing care of the child and has, in writing, irrevocably released the child for emigration and adoption.  

An orphan petition must be filed before her 16th birthday.  An orphan petition may be filed before the child's 18th birthday, if the child is a natural sibling of an orphan or adopted child, and is adopted with or after that child, by the same adoptive parents.

A married U.S. citizen and spouse or an unmarried U.S. citizen at least 25 years of age may file an orphan petition. The spouse does not need to be a U.S. citizen and has no age limit, as long as he is lawfully living in the U.S. An application for advance processing can be filed to speed up the process.  An unmarried American citizen may file an application for advance processing if the citizen is at least 24 years of age and will be at least 25 when an orphan petition is filed on behalf of an actual child and when the child is adopted.

The first step is to file the Form I-600A (Application for Advance Processing of Orphan Petition) to allow the USCIS to determine the adoptive parent’s suitability as a parent and ability to provide a proper home environment for a child.  After a child is identified, the parent must file Form I-600 (Petition to Classify Orphan as an Immediate Relative) on behalf of the child.  It is generally advisable for all prospective adoptive parents to do advance processing.

What kind of documentation is required?  Documents required include proof of U.S. citizenship, lawful status of the spouse living in the U.S., marriage certificate, documents evidencing termination of previous marriages, and evidence that a complete and current home study was done within the time limits.  Also, the petitioner must prove that he or she has complied with the pre-adoption requirements of the state.   All adult member of the household must also be fingerprinted by the government.  The prints are valid for 15 months fingerprints are taken.

Additionally, documents about child are required including his birth certificate or, if the certificate is unavailable, evidence of the child's age and identity; evidence that the child is an orphan; a final decree of adoption, if applicable; proof of legal custody of the child for emigration and adoption, if applicable; and  proof of compliance with pre-adoption requirements, if applicable.

In countries can I adopt a child?  The USCIS does not recommend adoption from countries experiencing social or political problems because the difficulty involved in securing all the required civil documents and proving that the child is an orphan.

Generally, an adopted child enter the U.S. as a lawful permanent resident.  However, in certain situations, a child might become a United States citizen upon admission into the United States as a lawful permanent resident.

On June 19, 2008, the Department of State published an interim final rule to revise existing regulations and thereby permit qualified au pairs to participate again inthe  pair program after completing a period of at least two years of residency outside the United States following the end date of his or her initial exchange visitor program. The regulations contained in the interim final rule are adopted without change.

USCIS announces today certain new requirements for hiring H-1B foreign workers starting Feb. 17, 2009.

What is it about? 
USCIS imposed new requirements for employers who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), when they hire a foreign national to work in the H-1B specialty occupation category.  The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, requires that these company who seek to hire new H-1B workers to be considered as “H-1B dependent employers.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.

When is it effective? 
EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, including any new employment and concurrent employment, regardless of whether the beneficiary is already in H-1B status.  Also, the EAWA applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

What does it exclude?
EAWA does not apply to change if status petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category.  It also excludes extension of of stay by H-1B workers with the same employer.

Is the new I-129 form required?
A new I-129 form will be released before 4/1/2009.  Employers do not have to use the new form but is encouraged to do so.  Employers should still use the a one-page form contained in the new form on EAWA attestation requirements and to file this single page with the petition.  The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

In Matter of Federal Insurance, decided on 2/20/2009, by BALCA, (Case No.: 2008-PER-00037), the Board noted that:  "This appeal does not concern whether the Kellogg regulation applies to the  employer’s application – it clearly does – but rather whether the Employer’s application should be denied because the Employer did not affirmatively write on the application that “any suitable combination of education, training or experience would be acceptable.” Because the existing Form 9089 does not reasonably accommodate an employer’s ability to express this attestation, we hold that it would offend fundamental due process to deny an application for failure to write the attestation on the Form 9089. ... Here, the absence of the Kellogg language (or possibly the substantive equivalent of the Kellogg language) on the form renders it difficult to know whether the Employer was in substantial compliance with the regulation, or whether it was unequivocally willing to attest that it was. ETA’s deficient form and failure to post readily accessible clarifying instruction, however, is largely responsible for this difficulty. Accordingly, we vacate the CO’s denial based on the missing Kellogg language and order that the CO grant certification." A new 9089 form has already been released by the DOL recently which provides a specific location for the Kellogg language.