dismissed EB-3 Case: Countertop Fabrication

U.S. Citizenship 
and Immigration 
Services 
MATTER OF I-G-A-M-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 25,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a fabricator of granite countertops, seeks to employ the Beneficiary as a tile and marble 
setter. 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, as required, that the Beneficiary met the requirement of the ETA Form 9089, Application 
for Permanent Employment Certification (labor certification), to have passed a criminal background 
check before the priority date of the petition. 1 
· On appeal, the Petitioner submits an affidavit attesting to the fact that the Beneficiary did have a 
background check conducted before the priority date. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer must 
obtain an approved labor certification from the U.S. Department of Labor (DOL). See section 
212(a)(5)(A)(i) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, the 
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 of domestic workers similarly employed. See Section 
212(a)(5)(A)(i)(I)-(II) of the Act. Second, the employer may file 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 ofthe Act, 8 U.S.C. § 1255. 
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The date the labor certification is filed, in cases such as this one, is called the "priority date." 
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Matter of 1-G-A-M-, Inc. 
II. ANALYSIS 
A. Beneficiary Qualifications 
A petitioner must establish the elements for the approval of the petition at the time of the priority 
date, which in this case is October 16, 2015. See 8 C.F.R. § 103.2(b)(l), (12). 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. See Matter of Wing's Tea House, 16 I&N Dec. 158, 159 (Acting Reg. Corum. 
1977). 
USC IS must examine "the language of the labor certification job requirements" in order to determine 
what the job requires. Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983). 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. Id. at 834. 
Here, Part H.l4 of the labor certification states that the Beneficiary must have his own 
transportation, a criminal background check, and references. The initial filing did not contain 
evidence that the Beneficiary met the requirements listed in Part H.l4, so the Director issued a 
request for evidence to the Petitioner, asking for evidence to establish that the Beneficiary had met 
the requirements of having his own transportation , a criminal background check, and references as of 
the visa petition's priority date, October 16, 2015. 
In response, the Petitioner submitted evidence that the Beneficiary has his own transportation, a copy 
of the criminal history search conducted by the police department on 
August I, 2016, and employment references. The Petitioner's owner submitted a letter stating that 
the Beneficiary did have a background check conducted before the priority date but that he did not 
keep a copy of the original document provided by the Beneficiary at the time he was hired. The 
Director denied the petition because the Petitioner had not established that the Beneficiary had a 
criminal background check conducted before the priority date. 
On appeal, the Petitioner asserts that even though the criminal history search by the 
police department occurred after the priority date, the 
language of this document states that 
the Beneficiary has no adult record of criminal convictions. The Petitioner states that this relates 
back to the time when the Beneficiary was hired in 2015 and demonstrates that he did not have any 
criminal convictions as of that period of time. The Petitioner's owner states in his letter that he 
routinely asks applicants to bring their local criminal record and asks about their criminal record but 
that he did not keep a copy of the original background check provided by the Beneficiary at the time 
of hire. The Petitioner cites Lu-Ann Bakery Shop, Inc. v. Nelson , 705 F. Supp. 7, I 0 (D.D.C. 1988), 
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Matter of 1-G-A-M-, Inc. 
for the proposition that only the submission of affidavits are necessary to prove that a beneficiary 
meets the requirements for the job offered. We find that the court's holding in Lu-Ann Bakery is 
based upon a regulatory requirement that a petitioner must establish the beneficiary's employment 
experience by submitting an affidavit from the employer attesting to the particular experience. Here, 
the terms of the labor certification specifically require a criminal background check, and the 
requirements of the labor certification must be established as of the priority date of the petition. See 
Matter of Wing's Tea House, 16 I&N Dec. at 159. A petitioner cannot meet its burden of proof in 
immigration proceedings simply by claiming a fact to be true. 
We note that the DOL's Board of Alien Labor Certification Appeals (BALCA) has identified several 
cases in which pre-employment screening had been found to be a job requirement. See 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 ofYiannis Electric, Inc., 2011-PER-00112. 
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 a criminal background check requirement is 
a job requirement that must be met by the Beneficiary as of the priority date. 
As stated above, we must examine "the language of the labor certification job requirements" in order 
to determine what the job requires. See Madany, 696 F .2d at 1 012-13. 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. See Rosedale, 595 F. Supp. at 834 
(emphasis added). 
Here, we find the plain language of Part H.l4 of the labor certification establishes that the Petitioner 
requires a criminal background check for the offered position, as those requirements are commonly 
understood, which must have been met by the Beneficiary as of October 16, 2015, the priority date. 
In the present case, the Petitioner has submitted the results of a criminal background check that 
reports that the Beneficiary had no criminal record in Virginia as of August I, 2016. However, as 
this was conducted subsequent to the filing of the labor certification, it does not establish that the 
Beneficiary met the requirements for the offered position as of the priority date. As such, we will 
affirm the Director's denial on this ground. 
B. The Bona Fides of the Job Opportunity 
Although unaddressed by the Director, the record also does not establish the bona fides of the job 
opportunity. A petition for an unskilled worker must be accompanied by a valid individual labor 
certification, an application for Schedule A designation, or documentation of a beneficiary's 
qualifications for a shortage occupation. 8 C.F.R. § 204.5(1)(3)(i). If an accompanying labor 
certification does not comply with DOL regulations, we may deny a petition. See Matter of Sunoco 
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Matter of 1-G-A-M-, Inc. 
Energy Dev. Co., 17 I&N Dec. 283, 284 (Reg'l Comm'r 1979) (affirming a petition's denial under 
20 C.F.R. § 656.30(c)(2) where the labor certification did not authorize the beneficiary to work at the 
intended jobsite ). 
In this case, the Petitioner attested on the labor certification that "[t]he job opportunity has been and 
is clearly open to any U.S. worker." See 20 C.F.R. § 656.10(c)(8) (requiring an employer to so 
attest). The record, however, indicates that the Beneficiary has a special relationship with the 
Petitioner that casts doubt on the bona .fides of the job opportunity. See Matter of Sunmart 374, 
2000-INA-93, 2000 WL 707942, *3 (BALCA May 15, 2000) (holding that a relationship triggering 
concerns about the bona fides of a job opportunity "is not only of the blood; it may also be financial, 
by marriage, or through friendship"). 
In determining the bona fides of a job opportunity, we must consider several factors, including 
whether the foreign national: is in a positionto control or influence hiring decisions regarding the 
offered position; is related to the employer's owners, officers, or employees; incorporated or 
founded the employer; has an ownership interest in it; is involved in its management; is on its board 
of directors; is one of a small number of employees; possesses specialized or unusual job 
requirements of the offered position; or has personal attributes that would likely cause the employer 
to cease operations in the foreign national's absence. Matter of Modular Container Sys., Inc., 
89-INA-228, 1991 WL 223955, *8 (BALCA 1991) (en bane). We must also consider the 
employer's level of compliance and good faith in processing the claim. ld. 
Here, the Petitioner responded "Yes" to part C.9 of the labor certification, which asks: "Is the 
employer a closely held corporation, partnership, or sole proprietorship in which the alien has an 
ownership interest, or is there a familial relationship between the owners, stockholders, partners, 
corporate officers, or incorporators, and the alien?" The Petitioner's federal income tax return for 
2015 does not identify the Beneficiary as an owner of the corporation. The record therefore suggests 
that the Beneficiary has a familial relationship with the Petitioner's owner, who also shares the 
Beneficairy's last name. 
In addition, the Form I-140 submitted by the Petitioner indicates that it has five employees. The 
record therefore establishes that the Beneficiary would be one of a small number of employees, 
another factor indicating a non-bona.fide job opportunity. Thus, multiple Modular Container factors 
indicate that the offered position may not have been clearly available to U.S. workers, potentially 
rendering the labor certification invalid. 
Pursuant to 20 C.F.R. § 656.17(1), in any future filings in this matter, the Petitioner must demonstrate 
the existence of a bona fide job opportunity and provide copies of the following materials: 
• Documentation of the relationship between the Petitioner's owner and the Beneficiary; 
• The Petitioner's financial history, including the total investment in it and the amount of 
investment by each owner and the Beneficiary; and 
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Matter of 1-G-A-M-, Inc. 
• The name of the person with primary responsibility for interviewing and hiring applicants, 
and the names of people with influence or control over hiring decisions for the offered 
position. 
In addition, the Petitioner should provide copies of its labor certification materials, including: the 
notice of filing; the prevailing wage determination; newspaper advertisements of the offered 
position; as described in 20 C.F.R. § 656.17(g)(l), the recruitment report; resumes or applications 
received from applicants; and any correspondence between the Petitioner and the DOL, including 
information on whether the DOL audited the labor certification. 
III. CONCLUSION 
We conclude that the record does not establish that the Beneficiary met the requirements of the labor 
certification for the position offered as of the priority date. Therefore, we will affirm the Director's 
denial of the visa petition. 
ORDER: The appeal is dismissed. 
Cite as Matter of 1-G-A-M, Inc., ID# 453537 (AAO Apr. 25, 2017) 
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