dismissed EB-3 Case: Plumbing And Ventilation Products

MATTER OF A-V-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 14,2017 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an importer and distributor of plumbing and ventilation products, seeks to employ the 
Beneficiary as a purchasing, communications, and inventory management director/China. It requests 
her classification as a professional under the third-preference, immigrant category. See Immigration 
and Nationality Act (the Act) section 203(b)(3)(A)(ii), 8 U.S.C. § 1153(b)(3)(A)(ii). This 
employment-based, "EB-3" category allows a U.S. business to sponsor a foreign national with a 
bachelor's degree 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 required criminal background check at the time the 
labor certification was filed. 
On appeal, the Petitioner asserts that the Beneficiary need only .pass a background check before 
beginning employment in the offered position. It also argues that the results of a later check show 
that she would have passed a check by the date of the labor certification's filing. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration usually follows a three-step process. First, an employer files a 
labor certification application with 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). 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 the DOL approves the labor certification application, the employer then files 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 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. 
Matter of A-V-, Inc. 
In order to demonstrate eligibility for the benefit sought, a petitioner must establish a beneficiary's 
possession of all the requirements specified on a labor certification by a petition's priority date.1 
See, e.g., Matter of Wing's Tea House, 16 I&N Dec. 158, 160 (Acting Reg'l Comm'r 1977). In 
evaluating a ,beneficiary's qualifications, we must examine the job offer portion of a labor 
certification to determine the minimum requirements of an offered position. We may neither ignore 
a term of a labor 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 Required Criminal Background Check 
Besides a bachelor's degree in business, two years of related experience, and fluency in the 
Mandarin Chinese language, the labor certification in this case states that an applicant for the offered 
position of purchasing, communications, and inventory management director "[ m ]ust successfully 
pass [a] criminal background check." 
In his request for additional evidence, the Director asked the Petitioner for evidence of the 
Beneficiary's passage of a criminal background check. In response, the Petitioner submitted results 
of a background check, indicating that the Beneficiary has no criminal record in North Carolina. 
Noting the check's completion on October 27, 2016, however, the Director found that the results did 
not establish the Beneficiary's passage by the petition's priority date of July 30, 2015. 
On appeal, the Petitioner notes that the labor certification does not specify a deadline for the 
background check requirement. The Petitioner therefore asserts that the Beneficiary need only pass 
a check before beginning employment in the offered position. Because the Petitioner now employs 
the Beneficiary in another position, it argues that she timely passed a background check? 
Although not stated on a labor certification, a beneficiary must meet all of its job requirements by a 
petition's priority date. See Matter of Wing's Tea House, 16 I&N Dec. at 160; see also 8 C.F.R. 
§ 103 .2(b )(1) (requiring an applicant or petitioner to establish eligibility by the filing of a benefit 
request). This rule stems from the importance of a petition's priority date, which establishes a 
beneficiary's place in line for an immigrant visa. If unqualified for a requested classification by a 
priority date, a beneficiary would unjustly enjoy an earlier place in line. See Matter of Katigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971) (stating that a "beneficiary cannot expect to ... claim a 
priority date as of ... a date on which he [or she] was not qualified"). 
1 
If accompanied by a labor certification, a petition's priority date is the date the DOL received the labor certification 
application for processing. 8 C.F.R. § 204.5(d). 
2 The Petitioner has authorization to temporarily employ the Beneficiary in H-1 B nonimmigrant visa status. See section 
IOI(a)(I5)(H) ofthe Act, 8 U.S.C. § IIOI(a)(I5)(H) (describing the H nonimmigrant visa classification). This petition 
seeks permission to permanently employ her. 
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Matter of A-V-, Inc. 
We could not permit the .Beneficiary, after the petition's priority date, to meet the offered position's 
education or experience requirements. See Matter of Katigbak, 14 I&N Dec. at 49 (rejecting a 
beneficiary's after-acquired education); Matter ~f Wing's Tea House, 16 I&N Dec. at 160 (rejecting 
a beneficiary's after-acquired experience). For the same reason, we cannot allow her to pass a 
required criminal background check after the priority date. 
Moreover, although the Petitioner claims that the Beneficiary's current employment with the 
Petitioner (which began in 2010) indicates her passage of a background check, the Petitioner has not 
submitted evidence that the Beneficiary in fact passed a background check prior to beginning her 
employment with the Petitioner. 
The Petitioner also argues that the results of the Beneficiary's criminal background check show that 
she would have passed a check by the petition's priority date. The Petitioner asserts that the results 
of her later check indicate that she has no criminal record since May 11, 2011.3 Thus, the Petitioner 
maintains that she would have also passed a background check by the petition's priority date of July 
30, 2015. 
The plain language of the labor certification, however, required the Beneficiary to "successfully pass 
[a] criminal background check." See Madany, 696 F .2d at 1015 (holding that "the language of the 
labor certificationjob requirements ... set[s] the bounds ofthe alien's burden of proof'). Thus, the 
Beneficiary's eligibility to pass a background check by the petition's priority date would not 
establish, as specified on the labor certification, actual passage of a check by that date. 
For the foregoing reasons, the record does not establish the Beneficiary's passage of a criminal 
background check as specified on the labor certification by the petit_~ on's priority date. We will 
therefore affirm the Director's decision. · 
B. The Beneficiary's Qualifying Experience 
Although unaddressed by the Director, the record also does not establish the Beneficiary's 
possession of the experience required for the offered position. 
As previously indicated, the offered position of purchasing, communications, and inventory 
management director requires at least two years of experience. The labor certification specifies that 
this experience must be in a purchasing, sales, or marketing position in the plumbing and "HV AC" 
[heating, ventilation and air conditioning] industry. 
On the labor certification, the Beneficiary attested to her possession, by the petition's priority date of 
July 30, 2015, of more than four years of full-time, qualifying experience. She stated that she has 
3 
The results of the Beneficiary's background check include her North Carolina driving record since May II, 20 II. The 
Petitioner asserts that the background check searched state criminal records at least as old. 
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Matter of A-V-, Inc. 
worked in the United States since November 15, 2010, as a purchasing and communications 
director/China for the Petitioner. 
A labor certification employer cannot generally rely on experience that a foreign national gained 
with it. 20 C.F.R. § 656.17(i)(3). The Petitioner, however, cites an exception to this rule, asserting 
the Beneficiary's accrual of qualifying experience in a position substantially different than the 
offered position. See 20 C.F.R. § 656.17(i)(3)(i). For these purposes, a substantially different 
position requires performance of the same job duties less than 50 percent of the time. 20 C.F.R. 
§ 656.17(i)(5)(ii). 
Here, the Petitioner asserts that the Beneficiary's current job duties are "56% different" than those of 
the offered position. A table that the Petitioner submitted, however, indicates that the two positions 
/ require performance of the exact same set of job duties 100% of the time. Rather, the table indicates 
that the specific percentage of time spent on each individual duty varies between the prior position 
and the position offered. For example, while the Beneficiary now spends 25 percent of her time to 
coordinate sourcing, purchasing, and inventory control, the table states that this duty will consume 
40 percent of her time in the offered position, an increase of 15 percentage points. As such, contrary 
to 20 C.F.R. § 656.17(i)(5)(ii), the record does not establish that the offered position will require the 
Beneficiary's performance of the same job duties less than 50 percent of the time. · The record 
therefore does not establish the Beneficiary's claimed, qualifying experience with the Petitioner. 
III. CONCLUSION 
As the Director concluded, the record does not establish the Beneficiary's passage of a required 
criminal background check by the petition's priority date. The record also does not demonstrate that 
the Beneficiary possess the experience required for the offered position. 
ORDER: The appeal is dismissed. 
Cite as Matter qf A-V-, Inc., ID# 378640 (AAO June 14, 2017) 
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