dismissed EB-3 Case: Poultry Business

U.S. Ci tizensh~p 
and Immigration 
Services 
MATTER OF C-F-P-, INC. 
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 29, 2017 
PETITION: FORM J-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a poultry business, seeks to employ the Beneficiary as a production line worker. 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 for 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, tinding that the record did not 
establish that the Beneficiary had met the drug screening and physical assessment requirements of 
the labor certification as of the petition's priority date and that the Beneticiary was, therefore. not 
qualified for the offered position. 
The matter is now before us on appeal. The Petitioner contends that the Director erred in denying 
the petition, stating that requiring it to conduct the above drug screening and physical assessment as 
of the visa petition's priority date is unreasonable. Alternatively, the Petitioner asserts that the 
evidence establishes that the Beneficiary met the requirements of the labor certitication as of the visa 
petition's priority date. 
Upon de novo review, we will dismiss the appeal. 
I. LAW 
Employment-based immigration is generally a three-step process. First an employer must obtain an 
approved ETA Form 9089, Application for Permanent Employment Certification (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). Next, 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. Finally, if USCIS 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. 
Matter qfC-F-P-, Inc. 
As required by statute, a labor certification, approved by the DOL, accompanies the petition. By 
approving the labor certification, the DOL certifies that there are insufticient U.S. workers who are able, 
willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(I) of the Act. The 
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 determines 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 facts 
stated in it are true and the foreign national is eligible for the requested preference classification); see 
also, e.g. Tongatapu Woodcraft 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 US CIS 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), 103.2(b)(l), (12); see al.S-o Matter of Wing's Tea House. 16 I&N Dec. 158, 159 
(Acting Reg'! Comm'r 1977); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg' I Comm'r 1971). The 
priority date of a petition is the date that the DOL accepts the labor certification for processing. See 
8 C.F.R. § 204.5(d). 
II. ANALYSIS 
To establish that a beneficiary is qualified to perform the duties of an offered position, a petitioner 
must demonstrate that a beneficiary has met all of the requirements set forth in the labor certification 
by the priority date of the petition. 1 In evaluating the job otler 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. 2 
In the present matter, the job offer portion of the labor certification, Part H, reflects 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: "[ d]rug screening and physical assessment to stand 
long time and repetitive hand motion required. Age 18 and above." 
The initial filing did not contain evidence that the Beneficiary met the requirements stated in Part 
H.14, so the Director issued a notice of intent to deny (NOID) to the Petitioner, asking for evidence 
establishing that the Beneficiary had met the requirements of a drug screening and physical 
assessment, as of the visa petition's priority date, April 10, 2015. 
1 
See 8 C.F.R. §§ 103.2(b)(l), (12); 8 C.F.R. § 204.5(1)(3)(ii)(A); see Malter ol Wing's Tea House, 16 I&N Dec. at 159; 
Matter of Katigbak, 14 I&N Dec. at 49. 
2 See Madany v. Smith, 696 F.2d at 1008; K.R.K. Irvine, Inc. v. Lqndon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
lnji-a-Red Commissmy of Massachusetts, Inc. v. Coomey, 661 F.2d I (I st Cir. 1981 ). 
2 
.
Mauer ofC-F-P-, Inc. 
In response, the Petitioner contended that the drug screening and physical assessment requirements 
in Part H.14 of the labor certification should be distinguished from those to be met prior to the tiling 
of the labor certification, such as education or work experience. It maintained that, unlike education 
and work experience, which do not change after a labor certification is tiled, a drug test is valid only 
as of the date it is conducted and, therefore, must be performed after hiring to ensure a new 
employee is drug-free. The Petitioner made this same argument with regard to the physical 
assessment requirement stated in Part H.l4, asset1ing that the ability of an unskilled worker to stand 
for long periods of time and perform repetitive hand motions could change over the course of the 
employment-based immigrant visa process. It also pointed out that its screenings were not 
conducted until after the job offer was made, right before its new hires started work. 
Nevertheless, the Petitioner, noting USCIS' repeated requests for the results of drug screenings for 
other employment-based petitions, submitted December 7, 2015, and February 25, 2016, drug tests 
for the Beneficiary, and a February 22, 2016, criminal records check of the Beneficiary, conducted 
by the Korean National Police Agency. It also provided a February 26, 2016, medical certificate 
confirming the Beneficiary's physical ability to perform a job requiring long periods of standing and 
repetitive motion. The Petitioner asserted that the submitted tests and screening, although conducted 
after April 10, 2015, established, by a preponderance of evidence, that the Beneficiary would have 
been able to satisfy the requirements in Part H.l4 of the labor certification as of the priority date. 
The Director denied the visa petition finding that the reports the Petitioner had provided did not 
establish that the Beneficiary had met the requirements of the labor certification as of the petition's 
priority date. 
On appeal, the Petitioner contends that the drug screening and physical assessment required of its 
new employees are not job requirements. Instead, it describes them as the final step in its hiring 
process, as they are not conducted until after a job offer is made to an applicant. 3 The Petitioner 
continues to assert that unlike a beneficiary's education and work experience, which do not change 
after a labor certification is tiled, the results of the drug screening and physical assessment required 
by Part H.14 ofthe labor certification may alter over the course ofthe employment-based immigrant 
visa process. It, therefore, maintains that requiring the Beneficiary to have undergone a drug 
screening and a physical assessment of his ability to perform the duties of the offered position prior 
to the filing of the labor certification, as is the case with education and employment experience, is 
''unreasonable." 
We note, however , that in cases before the Board of Alien Labor Certification Appeals (BALCA) 
where employers have maintained that pre-employment screening is simply part of their hiring 
process, BALCA has found otherwise, concluding that such screening is a job requirement that must 
be listed on a labor certification. 4 See Matter of Aetna Lile Insurance Company, 20 12-PER-030 l I 
' On August I, 2016 , we issued a request for evidence to the Petitioner requesting proof that prospective job applicants 
had been aware of the drug test and physical assessment required for employment , including the submission of its 
recruitment materials for the offered position. In response, the Petitioner established that both requirements were 
included in its advertisements and the job order published by the (North Carolina) 
4 
While we are not bound by BALCAdecisions , we, nevertheless , may take note of the reasoning in such decisions when 
3 
Matter ofC-F-P-, Inc. 
(BALCA Dec. 14, 2016); see also Matter of 421 S. 2nd Street Enterprises, 2012-PER-00696 
(BALCA Aug. 28, 2013); Matter (~l Vetri 640 Corp., 2011-PER-02537 (BALCA Feb. 15. 2013); 
Matter of Yiannis Electric, Inc., 2011-PER-00112 (BALCA Feb. 15, 2012); Matter ol Noll Pallet & 
Lumber, 2009-PER-00082 (BALCA Dec. 16, 2009). Based on this reasoning, we find the drug 
screening and physical assessment requirements listed by the Petitioner in Part H.14 of the labor 
certification to be job requirements, which must have been met by the Beneficiary as of the April 1 0, 
2015, priority date. 
The Petitioner alternately asserts that even if the drug tests and physical assessments submitted in 
response to the Director's NOlO were not completed as of April 10, 2015, they, nevertheless, 
establish by a preponderance of evidence that the Beneficiary met the requirements found in Part 
H.14 of the labor certification as of the priority date, i.e., that as of April 10, 2015, he was drug free 
and able to stand for long periods of time and perform repetitive hand motions. The Petitioner, 
however, misstates the requirements it placed in Part H.14 of the labor certification. 
When determining whether a beneficiary is eligible for a preference immigrant visa, we may not 
ignore a term of the labor certification, nor may we impose additional requirements. Madany v. 
Smith, 696 F.2d at 1012-1013. We must examine "the language of the 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). 
In the present case, the requirements in Part H.14 of the labor certification, as stated by the 
Petitioner, require the Beneficiary to have undergone a drug screening test and a physical assessment 
of his ability to perform employment requiring long periods of standing and repetitive hand motion, 
which, by regulation, must have been conducted as of the priority date. The Petitioner, however, has 
submitted the results of drug tests and physical assessments that were conducted subsequent to the 
priority date. Therefore, they do not meet the requirements of the labor certification, regardless of 
the information they provide. 
As the record does not demonstrate that the Beneficiary was screened for drug use and physically 
assessed to determine his ability to perform the duties of the job opportunity prior to the priority 
date, it does not establish that he is qualified for the offered position. 
considering issues that arise in the employment-based immigrant visa process. 
4 
Matter ofC-F-P-, Inc. 
III. 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. Accordingly, we will affirm the Director's denial. 
ORDER: The appeal is dismissed. 
Matter o.fC-F-P-, Inc., ID# 10112 (AAO Mar. 29, 2017) 
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