Skip to main content

Chapter 4 - Burden and Standards of Proof

A. Burden of Proof

The burden of proof to establish eligibility for an immigration benefit always falls solely on the benefit requestor.[1] The burden of proof never shifts to USCIS. 

Once a benefit requestor has met his or her initial burden of proof, he or she has made a prima facie case. This means that the benefit requestor has come forward with the facts and evidence which show that, at a minimum, and without any further inquiry, he or she has proven initial eligibility for the benefit sought, though in certain cases the officer is then required to determine whether approval or denial is appropriate, in his or her discretion. 

B. Standards of Proof

The standard of proof is different than the burden of proof. The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. The standard of proof applied in most administrative immigration proceedings is the preponderance of the evidence standard. Therefore, even if there is some doubt, if the benefit requestor submits relevant, probative, and credible evidence that leads an officer to believe that the claim is “probably true” or “more likely than not,” then the benefit requestor has satisfied the standard of proof.[2]

If the requestor has not met this standard, it is appropriate for the officer to either request additional evidence or issue a notice of intent to deny, or deny the case.[3]

The preponderance of the evidence standard of proof does not apply to those applications and petitions where a different standard is specified by law. The Immigration and Nationality Act (INA) provides for a higher standard in some cases, such as the clear and convincing evidence standard that is required when an alien enters into a marriage while in exclusion, deportation, or removal proceedings, and to determine the citizenship of children born out of wedlock.[4]

Footnotes


[^ 1] See INA 291.

[^ 2] 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).

[^ 3] See Adjudicator’s Field Manual (AFM) Chapter 10.5, Requesting Additional Information (PDF, 2.87 MB) for more information.

[^ 4] See INA 245(e)(3). See INA 309(a)(1).

Resources

Legal Authorities

44 U.S.C. 31 - Federal Records Act of 1950, as amended - Records management by federal agencies

5 U.S.C. 552 - Freedom of Information Act - Public information; agency rules, opinions, orders, records, and proceedings

5 U.S.C. 552a - Privacy Act of 1974, as amended - Records maintained on individuals

8 CFR 103.2 - Submission and adjudication of benefit requests

Delegation of Authority 0105.1 - Delegation to the Bureau of Citizenship and Immigration Services

INA 103, 8 CFR 103 - Powers and duties of the Secretary, the Under Secretary, and the Attorney General

INA 291 - Burden of proof upon alien

Pub. L. 107-296 (PDF) - Homeland Security Act of 2002

Forms

No forms available at this time.

Appendices

No appendices available at this time.

Updates

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Incorporating Existing Guidance into the Policy Manual

This technical update is part of an initiative to move existing policy guidance from the Adjudicator’s Field Manual (AFM) into the Policy Manual. This update does not make major substantive changes but consolidates and incorporates existing AFM guidance into the Policy Manual, streamlining USCIS’ immigration policy while removing obsolete information. This guidance replaces Chapters 1, 3.4, 10.2, 10.3(a), 10.3(c), 10.3(e), 10.3(i), 10.4, 10.22, 11.1(c), 13, 14, 17, 23.8, 31.7, 33.10, 34.5, 35, 41.6, 42, 44, 56.1, 56.3, 56.4, 62, 81, 82, 83.1, 83.2, and 83.3 of the AFM, related appendices, and policy memoranda.

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].