dismissed EB-3 Case: Janitorial Services

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. 25,2017 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a provider of janitorial services, seeks to employ the Beneficiary as a commercial 
cleaner. It requests his classification as an "other worker" under the third-preference, immigrant 
category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This category allows a U.S. business to sponsor a foreign national with less 
than two years of training or experience for lawful permanent resident status. · 
The Director of the Texas Service Center denied the petition. The Director concluded that the record 
did not establish the Beneficiary's passage of a drug screening and criminal background check 
required for the offered position by the petition's priority date.' 
On appeal, the Petitioner asserts that, by requiring the Beneficiary's successful completion of a 
screening and check before he begins employment, the Director imposed an additional job 
requirement and misinterpreted case law and regulations. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer files a 
labor certification appli9ation with the Department of Labor (DOL). See section 212(a)(5)(A)(i) of 
the Act, 8 U.S.C. § 1182(a)(5)(A)(i). The DOL must certify that the United States lacks able, willing, 
qualified, and available workers for an offered position, and that employment of a foreign national will 
not hurt the wages and working conditions of U.S. workers with similar jobs. !d. 
If DOL certifies an offered position, the employer must next file an immigrant visa petition with 
U.S. Citizenship and Immigration Services (USCIS). See section 204 of the Act, 8 U .S.C. § 1154. 
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The priority date of this petition is December 30, 2014, the date the U.S. Department of Labor (DOL) received the 
accompanying labor certification application for processing. See 8 C.F.R. § 204.5(d) (explaining how to determine a 
petition's priority date). 
Matter of D-S-, Inc. 
In petition proceedings, USCIS determines, among other things, whether a beneficiary meets the 
DOL-certified requirements of a position. 
Finally, if USCIS approves a 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. 
A petitioner must establish a beneficiary's possession of all DOL-certified job requirements by a 
petition's priority date. Matter ofWing's Tea House; 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 
1977). When evaluating a beneficiary's qualifications for an offered position, USCIS must examine 
the job offer portion of a labor certification to determine the position's minimum requirements. 
USCIS may neither ignore a term of the certification, nor impose additional requirements. See. e.g., 
Madany v. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983). 
II. ANALYSIS 
A. The Drug Screening and Background Check 
In this case, the labor certification indicates that the offered position of commercial cleaner does not 
require any education, training, or experience. Part H.14 of the labor certification, however, states 
the following "other requirement:" "Initial drug screening and criminal background check." 
The Director interpreted the labor certification provision to require passage of a drug screening and 
criminal background check. Because a beneficiary must meet all labor certification requirements by 
a petition's priority date, the Director requested evidence of the Beneficiary's passage of a screening 
and check by December 30, 2014. 
In response, the Petitioner confirmed that it requires its employees to pass drug screenings and 
criminal background checks for insurance purposes and to meet customers' criteria. It submitted 
evidence of the Beneficiary's passage of a screening and check in his horne country of China. 2 The 
evidence indicates, however, that the Beneficiary did not complete the drug screening until May 
2016 and the criminal background check until July 2015. The Director therefore concluded that the 
record did not establish the Beneficiary's satisfaction of the position's requirement by the petition's 
priority date. 
On appeal, the Petitioner states that its employees need not pass drug screenings and criminal 
background checks until just before they start work for the company in the United States. By 
requiring the Beneficiary to undergo a drug screening and background check by the petition's 
priority date, the Petitioner asserts that the Director imposed a temporal job requirement unstated on 
the labor certification. 
2 The record does not indicate whether the offered position requires a check of international criminal records or only of 
those in the United States. 
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Matter of D-S-, Inc. 
Contrary to the Petitioner's assertion, however, the Act reflects Congress' intention that an "other 
worker" qualify for an offered position before a petition's approval. The Act makes visas available 
to "[ o ]ther qualified immigrants who are capable, at the time of petitioning for class(fzcation under 
this paragraph, of performing unskilled labor." Section 203(b)(3)(A)(iii) of the Act (emphasis 
added). . 
As previously indicated, case law further requires a beneficiary to meet all job requirements by a 
petition's priority date. See Matter of Wing's Tea House, 16 I&N Dec. at 160; Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). This requirement stems from the importance of a 
priority date, which establishes a beneficiary's place in line for an immigrant visa. If unqualified for 
an offered position by a priority date, a beneficiary would unjustly enjoy an earlier place in line. See 
Matter of Katigbak, 14 I&N Dec. at 49 (stating that a "beneficiary cannot expect to ... claim a 
priority date as of ... a date on which he [or she] was not qualified"). 
We could not permit the Beneficiary to meet an offered position's educational or experience 
requirements after a petition's priority date. See Matter of Katigbak, 14 I&N Dec. at 49 (rejecting a 
beneficiary's after-acquired education); Matter of Wing's Tea House, 16 I&N Dec. at 160 (rejecting 
a beneficiary's after-acquired experience). For the same reason, we cannot allow him to pass a 
required drug screening and criminal background check after this petition's priority date. 
The Act also indicates that Congress did not want beneficiaries, after immigrating to the United 
States, to discover that they do not qualify for their offered positions. See section 212( a)( 4 )(A) of 
the Act, 8 U.S.C. § 1182(a)( 4)(A) (barring foreign nationals likely to become "public charges" from 
immigrating). The Petitioner's refusal to employ the Beneficiary based on results of a post­
immigration drug screening or criminal background check would leave him unemployed and 
possibly unable to financially support himself in an unfamiliar country. Moreover, the Petitioner 
attested on the labor certification that it "will be able to place the alien on the payroll on or before 
the date ofthe alien's proposed entrance into the United States." 20 C.F.R. § 656.10(c)(4) (requiring 
labor certification employers to so certify). The Director therefore did not err in requiring the 
Beneficiary to pass a drug screening and criminal background check by the petition's priority date. 
The Petitioner also asserts that a beneficiary need only meet a position's requirements by a petition's 
filing date, not by its priority date. The Petitioner notes that Katigbak required proof of a 
beneficiary's qualifications by a petition's filing date. The Petitioner also notes that the only 
regulation expressly mandating compliance by a petition's priority date concerns a petitioner's 
ability to pay a proffered wage. See 8 C.F.R. § 204.5(g)(2) (requiring a petitioner to establish ability 
to pay "at the time a priority date is established"); c.f 8 C.F .R. § 103 .2(b )(1) (requiring a petitioner to 
demonstrate eligibility "at the time of filing the benefit request"). 
As of the Katigbak decision, however, a petition's filing date was its priority date. See 8 C.F.R. 
§ 204.l(c)(2) (1971); see also Proposed Rule on Petitions for Preference Immigrants, 52 Fed. Reg. 
18236, 18236 (May 14, 1987) (discussing the regulatory history of petition priority dates). After 
Katigbak, the former Immigration and Naturalization Service (INS) determined that disparities in 
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Matter of D-S-, Inc. 
labor certification processing times resulted in unfair awards of petition priority dates. 52 Fed. Reg. 
at 18236. Thus, in 1977, the INS began issuing priority dates based on the filing dates of 
accompanying labor certifications. Final Rule for Immigrant and Nonimmigrant Status; Petitions 
and Waivers, 41 Fed. Reg. 55847, 55848 (Dec. 23, 1976). Therefore, contrary to the Petitioner's 
assertion, Wing's Tea House did not "confuse" a petition's priority and filing dates. Rather, the 
decision correctly applied the current regulatory scheme, basing the petition's priority date on the 
filing date of its labor application. 
In Katigbak and Wing's Tea House, the regulatory basis for determining priority dates differed. But 
both decisions consistently held that a beneficiary must meet a position's qualifications by a 
petition's priority date. The absence of a corresponding regulation does not invalidate the 
precedential natures of the decisions. See 8 C.F .R. § 103.1 O(b ), (e) (requiring USC IS to follow 
precedent decisions in all proceedings involving the same issues). We therefore reject the 
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Petitioner's assertion that it need only establish the Beneficiary's qualifications as of the petition's 
filing date. Even if we accepted the Petitioner's argument, the record does not establish the 
Beneficiary's passage of the drug screening by the petition's December 3, 2015, filing date. 
The Petitioner further asserts that a beneficiary need not meet a position's "other requirements" by a 
petition's priority date. Rather, the petitioner states that, by the priority date, a beneficiary need only 
possess the educational, training, and experience requirements of a job. The Petitioner cites a 
precedent decision of ours, which states: "To be eligible for approval, a beneficiary must possess all 
the education, training, and experience specified on the labor certification." Matter a_( Christo's Inc., 
26 I&N Dec. 537, 539 (AAO 2015). The Petitioner, however, cites dictum. The beneficiary's 
qualifications for the offered position were not at issue. Christo 's holding therefore does not support 
the Petitioner's assertion. 
Wing's Tea House and Katigbak also do not support the Petitioner's argument. Although those cases 
involved experience and educational requirements, their reasoning applies to all job requirements,· 
including training and "other requirements." Further, regulations clearly require an "other worker" 
to meet labor certification requirements beyond education, training, and experience. See 8 C.F.R. 
§ 204.5(1)(3)(D) (stating that a petition for an unskilled worker "must be accompanied by evidence 
that the alien meets any educational, training and experience, and other requirements o.f the labor 
certffication") (emphasis added). We therefore reject the Petitioner's assertion that it need only 
establish the Beneficiary's education, training, and experience qualifications by the petition's 
priority date. 
Citing Madany, the Petitioner urges us to engage in a "common sense" review of its requirement for 
a drug screening and criminal background check. Because the Petitioner does not require its 
employees to successfully complete screenings and checks until just before they start work, it asserts 
that USCIS should not require the Beneficiary's passage of the drug screening and background 
check years before his proposed start date. 
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Matter of D-S-, Inc. 
In Madany, a labor certification for a nurse included the requirement: "must be able to obtain 
Virginia nursing license or have Virginia nursing license." Madany, 596 F.2d at 1013. The 
petitioner asserted that the provision required only the beneficiary's eligibility to take a licensing 
examination, while INS demanded additional evidence of her likelihood of passing the exam. ld. 
Noting that Virginia law barred the employment of unlicensed nurses, the court ruled that "INS's 
common-sense interpretation that the prospective employee must have an actual ability to obtain the 
license within a reasonable time better comports with DOL's statement of purpose." ld. at 1013-14. 
Madany, however, was decided before Congress' 1990 amendment of the Act, requiring the 
capability of an "other worker" to perform unskilled labor "at the time of petitioning for 
classification." Section 203(b)(3)(A)(iii) of the Act. Therefore, the case's allowance of a 
beneficiary to meet a licensing requirement after a petition's approval conflicts with current law. 
Madany is also distinguishable from this case. In Madany, the offered position required either a 
license or the ability to obtain one. Here, the Petitioner states that the offered position requires 
passage of a drug screening and criminal background check, not merely an ability to pass them. The 
Petitioner's citation to Madany therefore is unpersuasive. For the foregoing reasons, the record does 
not establish the Beneficiary's passage of a drug screening and criminal background check as 
required for the offered position by the petition's priority date. 
III. CONCLUSION 
The record does not establish the Beneficiary's passage of a drug screening and criminal background 
check as required for the offered position by the petition's priority date. We will therefore affirm the 
petition's denial. 
ORDER: The appeal is dismissed. 
Cite as Matter ofD-S-, Inc., ID# 561429 (AAO Aug. 25,201 7) 
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