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: AUG.31,2017 
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. § 1153(b)(3)(A)(iii). This employment-based immigrant 
classification allows a U.S. employer to sponsor a foreign national for lawful permanent resident 
status to work in a position that requires less than two years of training or experience. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Beneficiary was qualified for the offered position, as he did not complete his drug 
screening prior to the priority date in this case. 
On appeal, the Petitioner submits a brief and previously submitted evidence and asserts that the drug 
screening is a customary personnel practice and not a job requirement that needs to be met as of the 
priority date. 
Upon de novo review, we will dismiss the appeal. 
I. LAW AND ANALYSIS 
A. Employment-Based Immigration 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved ETA Form 9089, Application for Permanent Employment Certification (labor 
certification), from the U.S. Department of Labor (DOL). 1 See section 212(a)(5)(A)(i) ofthe Act, 
8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL certifies that there are 
insufficient U.S. workers who are able, willing, qualified, and available for the offered position and that 
employing a foreign national in the position will not adversely affect the wages and working conditions 
1 
The date the labor certification is filed, in cases such as this one, is called the "priority date." See 8 C.F.R. ~ 204.5(d). 
In this case, the priority date is July 31, 2015. Therefore, the Petitioner must establish that all eligibility requirements for 
the petition have been satisfied from July 31, 2015, and continuing through the present. 
Matter of D-S-, Inc. 
of domestic workers similarly employed. Section 212(a)(5)(A)(i)(I)-(II) of the Act. Second, the 
employer files an immigrant visa petition with U.S. Citizenship and Immigration Services 
(USCIS). See section 204 of the Act, 8 U.S.C. § 1154. Third, if USCIS approves the petition, the 
foreign national may 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. 
B. Beneficiary Qualifications 
To establish that a beneficiary is qualified to perform the duties of an offered 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 July 31, 2015.2 In evaluating 
the job offer 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 
requirements. 3 
In the present matter, the job offer portion of the labor certification, section H, reflects no education, 
training, or experience requirements for the offered position. The only qualifications stated for the 
position are set forth in section 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 section 
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, July 31, 2015.4 
In response, the Petitioner submitted the results of a July 15, 2015, background check, and the results 
of a drug screening dated April 26, 2016. In its reply brief, the Petitioner asserted that, 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 
filing. 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 is irrelevant, and cannot 
in this employer's circumstances be a 'requirement' for 1-140 approval." The record also contains 
two statements from the Petitioner's vice president for operations 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 copies of two Board of Alien Labor 
Certification Appeals (BALCA) decisions, Matter of Crust and Crumb d/b/a Beach Sweets. Inc .. 
2 8 C.F.R. § 103.2(b)(l), (12); 8 C.F.R. § 204.5(1)(3)(ii)(A); see Matter of Wing's Tea House.I6 l&N 158 (Acting Reg'! 
Comm'r 1977); Matter ofKatigbak, 14I&N Dec. 45 (Comm'r 1971). 
3 
See Madany v. Smith, 696 F.2d I 008 (D.C. Cir. 1983); K.R.K. Irvine. Inc. v. Landon, 699 F.2d I 006 (9th Cir. 1983); 
Stewart Infra-Red Commissary of Mass., Inc. v. Coomey, 661 F.2d I (I st Cir. 1981 ). 
4 
The Director noted that the background check submitted with the petition was undated. The Petitioner subsequently 
submitted a dated copy. 
2 
Matter of D-S-, Inc. 
2011-PER -02196 (BALCA · May 1, 2014 ), and Matter of Yiannis Electric. Inc.. 20 11-PER -00112 
(BALCA Feb. 15, 2012). 
The Director denied the visa petition, finding that the record did not establish that the Beneficiary 
had met the drug screening requirement in section H.l4 of the labor certification as of the visa 
petition's priority date.5 
On appeal, the Petitioner contends that USCIS misconstrued its language in section H.l4 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 has the right to 
determine what they actually mean. 
However, the Petitioner's assertions are not persuasive. For the reasons that follow, we find the 
record to demonstrate that the drug screening and criminal background check 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 filed the labor certification 
with DOL. 
In support of its position that the drug screening and criminal background check listed in section 
H.14 of the labor certification are nothing more than an explanation of its hiring procedures 
mandated by DOL, the Petitioner points to a memorandum from its counsel. Our review of the 
memorandum, however, does not find it to offer proof that DOL requires employers to place 
information other than job requirements in section H of the labor certification. As a result, we do not 
find counsel's memorandum to demonstrate that the Petitioner's drug screening and background 
check requirements in section H.14 ofthe labor certification are simply personnel procedures. 
The two BALCA decisions submitted by the Petitioner also do not support its assertion that DOL 
mandates that requirements other than "job requirements" must be reflected in section H 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 find the decision in Matter of Yiannis Electric. 
Inc. to demonstrate that, contrary to the Petitioner's assertions, BALCA has found pre-employment 
screening, including drug screening and criminal background checks, to be job requirements. 
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The criminal background check was conducted prior to the priDrity date and, therefore, met the terms of the labor 
certification. 
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Matter of D-S-, Inc. 
In Aetna Life 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 found 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(±)(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 found to 
be a job requirement as including Matter of 421 S. 2nd Street Enterprises, 2012-PER-00696 
(BALCA Aug. 28, 2013); Matter of Vetri 640 Corp., 2011-PER-02537 (BALCA Feb. 15. 2013); 
Matter of Noll Pallet & Lumber, 2009-PER-00082 (BALCA Dec. 16, 2009); and Matter of Yiannis 
Electric, Inc., 2011-PER-00112, one of the BALCA cases submitted by the Petitioner. 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 nonetheless 
listed on the labor certification as job requirements which must be met by the Beneficiary as of the 
visa petition's priority date. 
Having found the drug screening and criminal background check in section H.14 of the labor 
certification to be job requirements, we will consider the Petitioner's alternate assertion in this 
matter, which is that it, alone, has the right to determine the actual meaning of these requirements 
and that "[it] 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 "satisfactory criminal record," rather than the criminal 
record check itself, which can be performed before or after the filing of the labor certification. 
In a memorandum, the Petitioner's counsel echoes the Petitioner's claim that as drug 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 factually 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 section K of the labor certification, that establishes a beneficiary's eligibility. Although 
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Matter of D-S-. Inc. 
we note the Petitioner's claim that we must accept its definitions of the requirements listed in section 
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 insufficient evidence in the record to support the meanings that the Petitioner 
has assigned to its requirements in section H.14 of the· labor certification. The record contains no 
documentation, e.g., internal company memoranda, that establishes counsel's definition of "initial 
drug screening" as reflective of the understanding of that term in the Petitioner's company at the 
time the labor certification was filed with DOL. While we note the Petitioner's reference to the 
language in section 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 filed. 
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 ofthe labor certification 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 
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 certification 
application form. !d. at 834. 
Here, we find the plain language of section H.14 ofthe labor certification to establish the Petitioner's 
requirements for the offered position as a drug screening and criminal background check, as those 
requirements are commonly understood, which must have been met by the Beneficiary as of July 31, 
2015, the visa petition's priority date. 
In this case, the Petitioner submitted the results of a criminal background check dated July 15, 2015, 
which is prior to the priority date. Thus, the background check meets the requirements of the labor 
certification. The Petitioner also submitted the results of a drug screening of the Beneficiary, dated 
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Matter of D-S-, Inc. 
April 26, 2016. Since the drug screening was conducted after the priority date, it does not satisfy the 
labor certification requirements. 
II. CONCLUSION 
The record in this matter does not establish that the Beneficiary met all of the requirements of the 
labor certification as of the visa petition's priority date. 
ORDER: The appeal is dismissed. 
Cite as Matter of D-S-, Inc., ID# 466533 (AAO Aug. 31, 20 17) 
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