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. [t 
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 (USC IS). 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 r<fC-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)(Il) of 
the Act. 
In visa petition proceedings, US CIS 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 for 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 o{ 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'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 offer portion of the labor certification to 
determine the required qualifications tor the position, USCIS may not ignore a term of the labor 
certification, nor may it impose additional requirements? 
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.l4, 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 tor evidence establishing 
that the Beneficiary had met the requirements of a drug screening and physical assessment, as of the 
visa petition's priority date, April15, 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, 16I&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. Landon. 699 F.2d 1006 (9th Cir. 1983); Stewart 
lnfi·a-Red Commissary qj' Massachusetts, Inc. v. Cuomey, 661 F.2d I (I st Cir. 1981 ). 
2 
.
Matter ofC-F-P- , Inc. 
In response, Petitioner acknowledged that Part H.14 of the labor certification listed a drug screening 
and physical assessment as special requirements for the offered position, but maintained that they 
were not requirements for employment, as indicated by the Director, but intended only to promote a 
safe working environment. As proof of its claim, the Petitioner pointed to the fact that its drug 
screenings and physical assessments were performed only after job applicants had been offered 
employment. 3 It further asserted 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. 
The Petitioner also submitted the results of a December 4, 2015, drug test of the Beneficiary, 
reflecting that she was drug-free, and a February 2, 2016, medical report, stating that she had no 
history of drug use and was physically able to perform work requiring her to stand for long periods 
oftime and repetitive hand motions. It further provided a December 31, 2015 , criminal background 
check of the Beneficiary, which reported that, as of December 15, 2015, she had no criminal record 
in China. The Petitioner asserted that the submitted drug tests and physical assessment of the 
Beneficiary, although conducted after the priority date, established that it was more likely than not 
that she would also have met the drug screening and physical assessment required by Part H.l4 of 
the labor certification as of the April 15, 2015, priority date. Although he acknowledged the 
Petitioner's submission of the above documentation , the Director concluded that, as the requirements 
in Part H.l4 of the labor certification had not been met as of the petition's priority date, the 
Beneficiary was not qualified for the otiered position. 
On appeal, the Petitioner again contends that the drug screenings and physical assessments it 
requires of new employees are not job requirements. Instead, it describes them as the final step in its 
hiring process, conducted only 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 .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 in this matter 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." 
However, while the Petitioner may consider the drug screening and physical assessment 
requirements in Part H.l4 of the labor certification to be part of its hiring process, we note that in 
cases before the Board of Alien Labor Certification Appeals (BALCA) where employers have also 
3 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) 
3 
Matter ofC-F-P-, Inc. 
maintained that pre-employment screening is 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 ofAetna Life Insurance Company, 2012-PER-03011 (BALCA Dec. 14, 
2016); see also Matter of 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 of Yiannis Electric. 
Inc., 2011-PER-00112 (BALCA Feb. 15, 2012); Matter ofNoll Pallet & Lumber, 2009-PER-00082 
(BALCA Dec. 16, 2009). Having reviewed the preceding BALCA opinions, 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 April15, 2015, priority date. 
Alternately, the Petitioner contends that the results of the dfug tests, physical assessment, and 
criminal background check that it has submitted for the record should be viewed as proof that the 
Beneficiary meets the requirements of the labor certification. It maintains that, although not 
performed prior to the visa petition's priority date, these screenings, nevetiheless, establish, by a 
preponderance of evidence, that the Beneficiary was also drug-free and physically able to perform 
the offered position's duties at the time it tiled the labor certification with the DOL, thereby 
satisfying the requirements of the labor certification. 
However, when determining whether a beneficiary is eligible for a preference immigrant visa. 
USCIS may not ignore a term of the labor certification, nor may it 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). 
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 the Beneficiary'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 15,2015, priority 
date. As the drug tests and physical assessment that have been submitted by the Petitioner in this 
matter were conducted subsequent to the visa petition· s priority date, they do not meet the 
requirements of the labor certification. 
4 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. 
4 
Matter ofC-F-P-, Inc. 
In the present case, 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. Therefore, the Petitioner has not established that she is qualified for the offered 
. • 'i \ 
positiOn.- ' 
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 o.f~C-F-P-. Inc., ID# 11477 (AAO Mar. 29, 2017) 
5 We note that USCIS records reflect that the Beneficiary in this matter is also the beneficiary of a second visa petition 
filed by the Petitioner under section 212(a)(3)(A)(iii) ofthe Act, which was approved on December 23,2016.