dismissed EB-3 Case: Commercial Cleaning

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-S-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 28. 2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a maintenance and operations services business, seeks to employ the Beneficiary as a 
commercial cleaner. It requests classification of the Beneficiary as an unskilled worker under the third 
preference immigrant classification. See Immigration and Nationality Act (the Act) section 
203(b)(3)(A)(iii), 8 U.S.C. ~ 1152(b)(3)(A)(iii). This employment-based immigrant classification 
allows a U.S. employer to sponsor a foreign national tor lawful permanent resident status to work in 
a position that requires less than 2 years of training or experience. 
The Director of the Texas Service Center denied the visa petition, finding the record did not 
establish that the Beneficiary had met the requirements of the labor certification, a drug screening 
and criminal background check as of the date that the Petitioner filed it with the U.S. Department of 
Labor (DOL), and, therefore, that she was not qualified for the offered position. 
The matter is now before us on appeal. The Petitioner contends that the Director erred in finding the 
Beneficiary had not met labor certification requirements, as the drug screening and background 
check reflected in the labor certification are not job requirements, but common personal procedures 
that need not be met prior to the filing of the labor certification. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration iscgenerally a three-step process. First, an employer must obtain an 
approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification) from DOL. See section 212(a)(5)(A)(i) of the Act, 8 U.S.C. ~ 1182(a)(5)(A)(i). Next, 
the employer may tile an immigrant visa petition with U.S. Citizenship and Immigration Services 
(USCIS). See section 204 of the Act, 8 U.S.C. ~ 1154. Finally, if USC IS approves the immigrant 
visa petitioner, the foreign national must apply for an immigrant visa abroad or, if eligible, 
adjustment of status in the United States. See section 245 of the Act, 8 U.S.C. ~ 1255. 
As required by statute, a labor certification, approved by DOL, accompanies the pet1t1on. By 
approving the labor certification, DOL certifies that there are insufficient U.S. workers who are able, 
willing, qualified, and available tor the offered position. Section 212(a)(5)(A)(i)(l) of the Act. The 
Matter of D-S-. Inc. 
DOL also certifies that the employment of a foreign national in the position will not adversely affect the 
wages and working conditions of domestic workers similarly employed. Section 212(a)(5)(A)(i)(II) of 
the Act. 
In visa petition proceedings, USCIS detem1ines whether a foreign national meets the job requirements 
specified in the underlying labor certification and the requirements of the requested immigrant 
classification. See section 204(b) of the Act (stating that USCIS must approve a petition if the tacts 
stated in it are true and the foreign national is eligible for the requested preference classitication); see 
also, e.g. Tongatapu Woodcrafi Haw .. Ltd v. Feldman. 736 F.2d 1305, 1309 (9th Cir. 1984 ); 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USC IS has authority to 
make preference classification decisions). 
A petitioner must establish the elements for the approval of the petition at the time the priority date 
is established and continuing until the beneficiary obtains lawful permanent residence. See 8 C.F.R. 
§§ 204.5(g)(2), I 03.2(b )(1), (12); see also Motter of' Wing ·s Tea House. 16 I&N Dec. 158, 159 
(Acting Reg'l Comm'r 1977); Malter ofKatigbak. 14 l&N Dec. 45, 49 (Reg' I Comm'r 1971 ). The 
priority date of a petition is the date that DOL accepts the labor certification for processing. See 
8 C.F.R. § 204.5(d). 
11. ANALYSIS 
To establish that a beneficiary is qualified to perform the duties of an oftered position, a petitioner 
must demonstrate that the beneficiary has met all of the requirements set forth in the labor 
certification by the priority date of the petition, which in this case is January 28, 2015.
1 
In 
evaluating the job otTer portion of the labor certification to determine the required qualifications for 
the position, USCIS may not ignore a term of the labor certification, nor may it impose additional 
. 2 reqmrements. 
In the present matter, the job ofter portion of the labor certification, Part H, reilects no education, 
training, or experience requirements for the offered position. The only qualifications stated for the 
position are set forth in Part H.14, as follows: "[i]nitial drug screening and criminal background 
check." 
The initial filing did not contain evidence that the Beneficiary met the requirements listed in Part 
H.14, so the Director issued a request for evidence (RFE) to the Petitioner, asking for evidence 
establishing that the Beneficiary had met the requirements of a drug screening and a criminal 
background check, as of the visa petition's priority date, January 28, 2015. 
1 
8 C.F.R. ~ 103.2(b)(l), (12); 8 C.F.R. ~ 204.5(1)(3)(ii)(A); see Matter of W'ing's Tea House. 16 I&N Dec. at 159: 
Maller olKatighak, 14 I&N Dec. at 49. 
1 
1 See Madal1)' v. Smith, 696 F.2d at I 008; K. R. K. Irvine. Inc. v. Landon. 699 F.2d I 006 (9th Cir. 1983 ): Stnvart lnfi·a-. . 
Red Commissmy ol Massachusetts. Inc. v. Coomey, 661 F.2d I (I st Cir. 1981 ). 
2 
Matter of D-S-. Inc. 
In response, the Petitioner submitted the results of a May II, 2016, drug screening and a May 5, 
2016, criminal background check of the Beneficiary. In its brief~ the Petitioner asserted tliat, as the 
employer in this matter, it had "the absolute right and complete discretion" to define these 
requirements and, further, that neither check needed to be conducted prior to the labor certification's 
tiling. It also contended that as its drug testing and background checks needed to be conducted 
immediately prior to the start of employment, "a pre-9089-tiling drug screen and criminal record 
check [were] immaterial, and [could not] in [its] circumstances be a requirement for 1-140 approval.'' 
The Petitioner's response to the RFE also included two statements from its vice president for 
operations, dated February 5 and February 26, 2016, explaining the Petitioner's need to conduct drug 
and criminal record checks of its employees, a memorandum from its counsel explaining the nature 
of its drug screening requirement, and a copy of Matter of Erik Sussman, 2012-PER-01339 (BALCA 
Apr. 28, 2016), a Board of Alien Labor Certification Appeals (BALCA) decision. The Director 
denied the visa petition, finding that the record did not establish that the Beneficiary had met the 
drug screening and criminal background check requirements in Part H.14 of the labor certification as 
of the visa petition's priority date. 
On appeal, the Petitioner contends that USClS misconstrued its language in Part H.14 of the labor 
certification. It asserts that the drug screening and criminal background check, are not job 
requirements, as the Director found, but are instead, a notification to prospective job applicants of 
the pre-employment drug screening and criminal background checks that are part of its employment 
application process, which DOL has mandated be disclosed on the labor certification. It also 
maintains, as it did in in its response to the Director's RFE, that, as the drug screening and 
background checks listed in the labor certification are its internal procedures, it not USCIS. has the 
right to determine what they actually mean. 
However, while we note the Petitioner's arguments in support of its claim that the drug screening 
and criminal background check requirements reflected in Part H.14 of the labor certification should 
not be considered job requirements, they are not persuasive. For the reasons that follow, we find the 
record to demonstrate that both are job requirements. and that, as written. they require the 
Beneficiary in this matter to have undergone a drug screening and criminal background check as of 
the date on which the Petitioner tiled the labor certification with DOL. 
In support of its position that the drug screening and criminal background check in Part l-1.14 of the 
labor certification are nothing more than an explanation of its hiring procedures, mandated by DOL, 
the Petitioner points to the memorandum from its counsel. Our review of the memorandum, 
however, does not find it to offer proof that DOL requires employers to place other than job 
requirements in Part H of the labor certification. 
Although counsel references Maller qfErik Sussmanas providing an example of this DOL mandate, 
the decision does not support counsel's claim. In that case, BALCA found that an employer must 
list a background check requirement on the labor certification, regardless of whether the employer 
considered the background check to be a "job requirement.'' The case does not indicate that DOL 
considered the background check to be anything other than a job requirement. As a result, we do not 
Matter ofD-S-, Inc. 
find counsel's memorandum to demonstrate that the Petitioner's drug screening and background 
check requirements in Part H. 14 of the labor certification are simply personnel procedures. 
The two BALCA decisions submitted by the Petitioner on appeal, Malter ofCru'il and Crumb dlbla 
Beach Sweets, Inc., 20 11-PER-02196 (BALCA May I, 2014) and Muller of Yiannis Electric. Inc., 
2011-PER-00112 (BALCA Feb. 15, 2012), also do not support the Petitioner's assertion that DOL 
mandates that requirements other than "job requirements" must be reflected in Part I-1 of a labor 
certification. These decisions establish only that where job advertisements have reflected 
requirements for criminal background checks and drug tests not listed in the labor certification, 
BALCA has found the conditions of employment offered to U.S. workers to be less favorable than 
those offered to the labor certification's beneficiary, supporting the denial of the labor certification. 
They do not reflect that BALCA has concluded that such background checks and drug tests are not 
job requirements. Moreover, as discussed below, we tine! the decision in Maller of Yiannis Electric. 
Inc. to demonstrate that, contrary to the Petitioner's arguments, BALCA has found pre-employment 
screening, including drug screening and criminal background checks, to be job requirements. 
In Aetna Lt{e Insurance Company, 2012-PER~03011 (BALCA Dec. 14, 2016), the employer, like the 
Petitioner in this matter, argued that its drug and background screening were not job requirements, 
but "an informational reference to [its] 'post-offer and acceptance; hiring process that [did] not have 
to be listed on the labor certification.'' In response, BALCA tound the following: 
Other Board panels have agreed with the CO that pre-employment screening is a job 
requirement and that inclusion of a reference to such screening in a newspaper 
advertisement when screening is not listed as a job requirement on the Form 9089 
violates the § 656.17(f)(6) prohibition that a newspaper advertisement must not 
contain any job requirements or duties which exceed the job requirements or duties 
listed on the Form 9089 .... We agree with these panels and similarly conclude that 
the [e]mployer's inclusion of the drug and background screening language in its 
newspaper advertisements violated § 656.17(t)(6) .... 
In its decision, BALCA identified other cases in which pre-employment screening had been tound to 
be a job requirement as including Matter ol 421 S. 2nd Street Enterprises, 20 12-PER-00696 
(BALCA Aug. 28, 2013); Matter (~l Vetr; 640 Corp., 2011-PER-02537 (BALCA Feb. 15. 2013); 
Malter (?l Noll Pallet & Lumber, 2009-PER-00082 (BALCA Dec. 16, 2009): and Matter ofYiannis 
Electric. Inc., 20 11-PER-00 112, one of the BALCA cases submitted by the Petitioner on appeal. 
While we are not bound by BALCA decisions, we; nevertheless, may take note of the reasoning in 
such decisions when, as here, they offer insight into issues that arise in the employment-based 
immigrant visa process. Accordingly, we conclude that, while the Petitioner may consider its drug 
screening and criminal background check requirements to be no more than hiring procedures. they 
are clearly job requirements, which must be met by the Beneficiary as of the visa petition's 
January 28, 2015, priority date. 
Having found the drug screening and criminal background check in Part I-1.14 of the labor 
certification to be job requirements, we will consider the Petitioner's alternate argument in this 
4 
Matter of D-S-, Inc. 
matter, which is that it, alone, has the right to determine the actual meaning of these requirements 
and that "[if] USCIS does not adhere to [its] terms, then [USCIS] is adding requirements to the 9089 
that do not actually exist." With regard to its drug screening requirement, the Petitioner states that 
its true requirement is a beneficiary's "willingness to submit to, and pass, these employer-conducted 
checks." It notes that this willingness is expressed in Section K of the labor certification. which has 
been signed by the Beneficiary. It also maintains that its requirement with regard to a criminal 
background check is proof that a worker has a "satist~lctory criminal record,'" rather than the criminal 
record check itself, which can be performed before or after the tiling of the labor certification. 
In. his memorandum, the Petitioner's counsel echoes its claim that as drug abuse screening is its 
requirement, it has the exclusive right to define the term. He further states that the interpretation of 
"initial drug screening," is "often misunderstood, both tactually and legally," but means that 
"employment applicants must be willing to take and pass a company-administered drug screen 
immediately before commencing employment" and that it is this willingness to take the drug test, as 
expressed in Part K of the labor certification that establishes a beneficiary"s eligibility. 
Although we note the Petitioner's claim that we must accept its definitions of the requirements listed 
in Part H.l4 of the labor certification, it has cited no statute or regulation, nor any precedent 
decision, that limits our authority to determine the requirements of the offered position in this matter, 
as those requirements are stated in Section H of the labor certification. 
We also find there is insutlicient evidence in the record to support the meanings that the Petitioner 
has assigned to its requirements in Part H.14 of the labor certification. The record contains no 
documentation, e.g., internal company memoranda, that establishes counsel's detinition of '"initial 
drug screening" as reflective of the understanding of that term in the Petitioner's company at the 
time the labor certification was tiled with DOL. While we note the Petitioner's reference to the 
language in Pmt K.b.9 of the labor certification, which states that '"[t]he alien is willing to submit to 
any employer-required drug screen," we do not find this one sentence, placed in the labor 
certification's section on work experience, to be sufficient to establish the Petitioner's assertions. 
The record also does not provide evidence that the Petitioner's requirement for a criminal 
background check was, at the time of the labor certification's filing, understood within its company 
to be a requirement for a satisfactory criminal record, not an actual background check. A petitioner 
cannot meet its burden of proof in immigration proceedings simply by claiming a fact to be true. In 
the absence of supporting evidence for its claims, the Petitioner's alternate definitions of its drug 
screening and criminal background check requirements appear to reflect an attempt to circumvent 
the regulation at 20 C.F.R. § 656.11 (b), which prohibits the amendment of a labor certification after 
it has been tiled. 
When determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not 
ignore a term of the labor certification, nor may it impose additional requirements. Madany v. Smith, 
696 F.2d at 1012-1013. We must examine "the language of the labor ce1titication job requirements'' 
in order to determine what the job requires. !d. The only rational manner by which USCIS can be 
expected to interpret the meaning of terms used to describe the requirements of a job in a labor 
certification is to examine the certified job offer. exactly as it is completed by the prospective 
Matter of D-S-. Inc. 
employer. See Rosedale Linden Park Company v. Smith, 595 F. Supp. 829, 833 (D.D.C. 1984) 
(emphasis added). Our interpretation of the job's requirements, as stated on the labor certification 
must involve reading and applying the plain language of the alien employment ce11ification 
application form. !d. at 834. 
Here, we find the plain language of Part H.14 of the labor certification to establish the Petitioner's 
requirements for the offered position as a drug screening and criminal background check, as those 
reuirements are commonly understood, which must have been met by tne Beneticiary as of 
January 28, 2015, the visa petition's priority date. 
In the present case, the Petitioner has submitted the results of a drug screening of the Beneticiary, 
dated May 11, 2016, and a May 5, 2016, criminal background check that reports she had no criminal 
record in China as of May 4, 2016. However, as both were conducted subsequent to the tiling ofthe 
labor certification, they do not meet its requirements and, therefore, do not establish the 
Beneficiary's qualifications for the offered position. 
Ill. CONCLUSION 
'-
The record in this matter does not establish that the Beneficiary met the requirements of the labor 
certification as of the visa petition's priority date. Therefore, we will affirm the Director's denial of 
the visa petition. 
ORDER: The appeal is dismissed. 
Matter ofD-S-. Inc., ID# 29389 (AAO Mar. 28, 2017) 
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