dismissed EB-3 Case: Poultry Processing

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 assessri1ent requirements of 
the labor cetiification 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 Certitication (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 tile 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 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)(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)(i[) 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 USCIS must approve a petition if the facts 
stated in it are true and the foreign national is eligible tor the requested preference classification); see 
also. e.g. Tongatapu Woodcrqfi 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 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 I&N Dec. 158, 159 
(Acting Reg'l Comm'r 1977); Matter ofKatigbak. 14 I&N Dec. 45,49 (Reg'! 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 offer 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.l4, 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, May 14,2014. 
1 
See 8 C.F.R. §§ I 03.2(b)(l), (12); 8 C.F.R. § 204.5(1)(3)(ii)(A); see Matter of Wing's Tea House, 16 I&N Dec. at 159; 
Matter (JjKatigbak, 14 I&N Dec. at 49. 
2 See Madany v. Smith, 696 F.2d at 1008; K.R.K. Irvine, Inc. v. Landon, 699 F.2d 1006 (9th Cir. 1983); Stewart 
lnfi·a-Red Commissary of Massachusells. Inc. v. Coomey, 66.1 F.2d I (I st Cir. 1981 ). 
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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 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 Jetter 
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, nevertheless, submitted the results of a January 15, 
2016, drug test reflecting that the Beneficiary was drug-free. It also provided the results of a 
physical examination of the Beneficiary, conducted on January 15, 2016, which found she was 
capable of performing work that required her to stand for long periods of time and perform repetitive 
hand motions. The Petitioner further submitted January 6, 2016, and January 7, 2016, criminal 
background checks of the Beneficiary performed by the Pennsylvania State Police and the Korean 
National Policy Agency respectively, which reflect that she has no criminal history. This evidence, 
the Petitioner maintained, established, by a preponderance of evidence, that the Beneficiary would 
have satisfied the requirements of Part H.14 of the labor certification as of the 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.l4 ofthe labor certification had not been met as ofthe petition's priority date, the Beneficiary was 
not qualified for the offered position. 
On appeal, the Petitioner again contends that the drug screenings and physical assessments 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 has been 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.l4 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 her 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. 3 See Matter qf'Aetna Lile Insurance Company, 2012-PER-03011 
J 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. 
(BALCA Dec. 14, 2016); see also Matter ol 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 ofYiannis Electric. Inc., 2011-PER-00112 (BALCA Feb. 15, 2012); Matter oj'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 visa 
petition's May 14, 2014, priority date. 
The Petitioner alternately asserts that the results of the drug tests, physical assessment and criminal 
background checks 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 
May 14, 2014, priority date. The Petitioner maintains that, although performed subsequent to the 
visa petition's priority date, the Beneficiary's drug tests and physical examination establish that it is 
more likely than not that she 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 certification job 
requirements" in order to determine what the job requires. Jd. 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). 
We read the requirements of a labor certification as written. 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 May 14,2014, priority date. Here, the drug tests and physical 
assessment of the Beneficiary that have been submitted by the Petitioner were conducted subsequent 
to the petition's priority date. Therefore, they do not meet the requirements of the labor certification. 
As the record does not demonstrate that the Beneficiary was screened for drugs and physically 
assessed to determine her ability to perform the duties of the job opportunity prior to the priority 
date, it does not establish that she is qualified for the offered position. 
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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. Therefore, we will affirm the Director's denial. 
ORDER: The appeal is dismissed. 
Matter ofC-F-P-. Inc., ID# 29600 (AAO Mar. 29, 2017) 
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