ATLAS SHRUGGED! The unbearable evidentiary burden on H-1B Petitioners

The United States Citizenship and Immigration Service (USCIS) has resorted to steadily increasing its demands for evidence and documentation in H-1B proceedings. Oftentimes, the USCIS remains unconvinced, even when Petitioners provide overwhelming documentation and evidence with the initial petition. Requests for Evidence (RFEs) are ten to fourteen pages long and recite a long litany of documents required to satisfy the evidentiary burden.

Recently, the H.R. executive of a corporate client, threw up her hands in frustration when she received an RFE following the submission of an end client letter and overwhelming supporting documentation in support of an H-1B petition. The beneficiary had even acquired a master’s degree in computer science from a U.S. institution. The RFE required “additional” proof that the Petitioner had the ability to control[1] the beneficiary at the client site.

Sometimes, the requests are just a boilerplate list of documents, from contracts linking each party in the chain to the end client, to how the position rises to the level of specialty occupation. However, there is no doubt that the Service has upped the ante in evaluating the evidence presented with H-1B petitions.

Unfortunately, even after providing the evidence required by the RFE, there is no telling whether the petition is likely to be approved. This is because the USCIS appears to have raised the evidentiary standard required for an H-1B approval.

The Adjudicator’s Field Manual, Chapter 11 specifically states:

The standard of proof applied in most administrative immigration proceedings is the “preponderance of the evidence” standard. Thus, even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca , 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition.

Perhaps, it is time someone reminds the Service that the standard of evidence remains unchanged It may be time to bring matters to a head by challenging the Service’s decisions in District Court. After all, the Courts are meant to check illegal and arbitrary administrative action when there is no rational basis for such action.

Hopefully, 2019 will see a more activist petitioner, who decides to challenge the status quo and bring down the invisible wall that has gone up to keep qualified non-immigrants from working for legitimate U.S. employers!

[1] This, notwithstanding the fact that the original “right to control” memo made it clear that the employer only had to show “right to control” and not actual control of the beneficiary at the client site. Page 3, FN 6

2018-12-21T21:34:51+00:00Dec 21, 2018|