dismissed EB-3 Case: Poultry Business

U.S. Citizenship 
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 I-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, finding 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 Beneficiary 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 certification 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 ofthe Act, 8 U.S.C. § 1255. 
Matter ofC-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 insufficient U.S. workers who are able, 
willing, qualified, and available for the offered position. Section 212(a)(5)(A)(i)(l) 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 detem1ines 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 USC IS 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 Woodcrqfi Haw .. Ltd. v. Feldman. 736 F.2d 1305, 1309 (9th Cir. 1984); 
Madanyv. Smith, 696 F.2d 1008, 1012-13 (D.C. Cir. 1983) (both holding that USClS 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 also Matter of Wing's Tea House. 16 J&N Dec. 158, 159 
(Acting Reg'! Comm'r 1977); Matter ofKatigbak. 14 I&N Dec. 45,49 (Reg'l 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 otTer potiion 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 tallows: "[ 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 request for evidence 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 Matter of Wing's Tea House, 161&N Dec. at 159: 
Matter o(Katigbak, 14 I&N Dec. at 49. 
2 
See Madany v. Smith, 696 F.2d at I 008; K. R.K. Irvine. Inc. v. Landon, 699 F.2d I 006 (9th Cir. 1983); Stewart 
ln.fi·a-Red Commissary of Massachusetts. Inc. v. Coomey, 661 F.2d I (I st Cir. 1981 ). 
2 
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Matter ofC-F-P-, Inc. 
In response, the Petitioner acknowledged that a drug screening and physical assessment were listed 
in Part H.14 of the labor certification as special requirements for the offered position, but maintained 
that they were not requirements for employment, but rather intended only to promote a safe working 
environment. As further proof that these requirements were not job requirements, the Petitioner 
noted that its drug screenings and physical assessments were performed only after an applicant had 
been offered employment. It further stated that its practice of requiring newly hired employees to 
pass a drug test and a physical assessment was known to the which 
assisted it with its local recruitment efforts. In support of this claim, the Petitioner submitted a letter 
from 
who states that it is his understanding that the Petitioner performs 
drug tests and physical assessments of new employees before they begin work. 
Having made these arguments, the Petitioner, nevetiheless, submitted drug test results for the 
Beneficiary, dated December 1, 2015, and February 22, 2106, which reflected that she was 
drug-free. It also provided the results of physical examinations of the Beneficiary, conducted on 
December I, 2015, and February 22,2016, which indicated that he was able to stand for long periods 
oftime and perform repetitive hand motions. The Petitioner further submitted a February 19,2016, 
criminal background check of the Beneficiary, which reflected that he had no criminal record. This 
evidence, the Petitioner maintained, established, by a preponderance of evidence, that the 
Beneficiary had satisfied the requirements of Part H.14 of the labor certification as of the April I 0, 
2015, priority date, even though the tests themselves had not yet been conducted. Although he noted 
the Petitioner's submission of the above documentation, the Director concluded that, as the 
requirements in Part H.14 of the labor certification had not been met as of the petition's priority date, 
the Beneficiary was not qualified for the offered position. 
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. The Petitioner 
further asserts that, unlike a beneficiary's education and work experience, which do not change after 
a labor certification is filed, the results of the drug screening and physical assessment required by 
Part H.14: of the labor certification could well alter over the course of the 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 pati of their hiring process, 
BALCA has found otherwise, concluding that such screening is a job requirement that must be listed 
on a labor certification. 3 See Matter of Aetna L(le Insurance Company, 2012-PER-03011 (BALCA 
3 While we are not bound by BALCA decisions, we, nevertheless, may take note of the reasoning in such decisions when 
considering issues that arise in the employment-based immigrant visa process. 
3 
Matter ofC-F-P-, Inc. 
Dec. 14, 2016); see also Matter l?{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); Malter <?{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.l4 of the labor certification to be 
job requirements, which must have been met by the Beneficiary as of the April 10, 2015, priority 
date. 
On appeal, the Petitioner also reiterates its argument that the results of the drug tests, physical 
assessments and criminal background check that have been submitted for the record in this matter 
are sufficient to demonstrate that the Beneficiary met the requirements of the labor certification as of 
the petition's April 10, 2015, priority date. The Petitioner maintains that, although performed 
subsequent to the visa petition's priority date, the Beneficiary's drug tests and physical examinations 
establish that it is more likely than not that he was also drug-free and physically able to perform the 
offered position's duties at the time it filed the labor certification with the DOL. It asserts that, as 
this evidence establishes the Beneficiary's eligibility for the offered position by a preponderance of 
evidence, the Director erred in denying the visa petition. 
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 certificatipn job 
requirements" in order to determine what the job requires. !d. The oniy 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). 
Here, while the purpose of the Petitioner's drug screening test may be a drug-free employee and its 
physical assessment, a worker capable of performing the duties of the offered position, those are not 
the requirements the Petitioner stated in Part H.14 of the labor certification. Rather, Part H .14 
reflects the Petitioner's requirements for the job opportunity as a drug screening test and a physical 
assessment of a job applicant's ability to stand for long periods of time and perform repetitive hand 
motions, which, pursuant to regulation, must be met as of the visa petition's April 10, 2015, priority 
date. However, the drug tests and physical assessments of the Beneficiary that have been submitted 
by the Petitioner were conducted subsequent to the priority date. Therefore, they do not meet the 
requirements ofthe labor certification, regardless of the information they provide. 
As the record does not demonstrate that the Beneficiary was screened for drugs and physically 
assessed to determine his ability to perform the duties of the job opportunity prior to the visa 
petition's April 10, 2015, priority date, it does not establish that he is qualified for the offered 
position. 
4 
Matter ofC-F-P-, Inc. 
Ill. 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. Therefore, we will affirm the Director's denial. 
ORDER: The appeal is dismissed. 
Matter o.fC-F-P-, Inc., ID# 11049 (AAO Mar. 29, 2017) 
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