More Likely Than Not: the Standard of Proof in H-1B Cases

The H-1B season is almost upon us as another year begins. As employers and employees make decisions on hires and H-1B eligibility and prepare to file Labor Condition Applications, it is worth revisiting the standard of proof in H-1B cases.

The standard of proof in H-1B cases in front of United States Citizenship and Immigration Services (USCIS) is preponderance of the evidence. This means that the petitioner (the employer) must present enough evidence to show that it is more likely than not that the information provided in the H-1B petition qualifies for an approval in the H-1B program.

This standard does not require the petitioner to prove the information beyond a reasonable doubt.

The Board of Immigration Appeals set forth the evidence standard in petitioner visa cases. The standard of proof in H-1B case is preponderance of evidence, which means “more likely than not.” Matter of Martinez, 21 I&N Dec. 1035 (BIA 1997); Matter of Patel, 19 I&N Dec. 774 (BIA 1988); Matter of SooHoo, 11 I&N Dec. 151 (BIA 1965). 

Effectively, the standard is satisfied if there is greater than fifty percent chance that the proposition is true. 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).

Let’s take a look at the USCIS Policy Manual for confirmation:

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.

See generally: Standard of Proof, USCIS Policy Manual, Chapter 4. Last accessed online January 20^th, 2023 https://www.uscis.gov/policy-manual/volume-1-part-e-chapter-4

The relatively low standard of proof is not a way out of providing honest and accurate evidence and data to USCIS. Those who are not convinced by ethics should know that the highest penalties in immigration are given out for dishonesty. Note that petitioners must provide truthful records and information to USCIS, regardless of the evidence standard.

Instead, this standard of proof can be helpful in cases where there is not a lot of evidence to provide to USCIS to begin with. In those cases, such evidence can be provided and USCIS may be reminded to look at the evidence in light of the standard of proof in H-1B cases.