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  • Article: H.R. 5203 and a Shifting Burden of Proof. By Peter Alphonso

    H.R. 5203 and a Shifting Burden of Proof


    This last May, the House Judiciary Committee passed bill H.R. 5203, the Visa Integrity and Security Act of 2016 (VISA Act), which aims to enhance the security procedures for the adjudication of immigrant and nonimmigrant visas at Embassies and Consulates abroad. While Congress has not yet passed it into law, some of the highlights of this piece of legislation include:

    • Mandatory background investigations will be required which include a review of each applicant’s social media activity. [Yet another reason to avoid Twitter and Instagram.];
    • Mandatory genetic/DNA testing in family based applications will be performed to confirm biological relationship between petitioner and beneficiary.
    • “Advanced Analytics” software will be utilized to detect immigration benefit fraud and potential national security threats;
    • The burden of proof upon a petitioner or applicant for a visa application will change from the current standard, “to the satisfaction of the consular officer,” to the standard that each applicant prove admissibility by “clear and convincing” evidence.

    In light of the recent terrorist attacks in Europe and the U.S., combined with a highly charged political climate in an election year, it’s easy to see why Congress is considering these new security standardsfor those seeking admission to the U.S. When compared to a southern border wall, it seems like a reasonable commonsense compromise. However, if Congress ultimately passes the legislation, it will almost certainly present challenges to employment-based nonimmigrants seeking entry into the U.S. to work for U.S. employers – think 221(g) administrative processing delays on steroids. Many nonimmigrants, which as H and L visa holders, are already subjected to 221(g) delays, which can last for several months as the consulate works to confirm the merits of the petition, as well as the Beneficiary’s eligibility. The new proposals will increase the chances for more delays as the consular officials begin applying “advanced analytics,” conducting enhanced background checks and holding applications to a higher burden of proof – the “clear and convincing” standard.

    It’s obvious that the passage of H.R. 5203 would signal a new reality for those applying for admission to the U.S., and likely limit the trips current visa holders take outside of the U.S. after they have already been admitted. Nonimmigrants will need to be mindful of their social media activity, as any seemingly innocent post/comment can be taken out of context and used against the applicant in a world making efforts to be more vigilant against potential security threats. Finally, applicants will need to satisfy the new burden of proof – the “clear and convincing standard.” Visa holders will need to have as much pertinent evidence to support their visa applications. In the example of an H-1B holder who is deployed to a 3rd party client site, it will be more important than ever to have updated client information which clearly confirms the details of the H-1B petition. This could include sworn affidavits from client managers or even photographic evidence that confirms the Beneficiary’s deployment to the location listed on the H-1B petition. There’s little way to predict how the officials at the different consular posts around the world will apply this standard. If updated client documentation is not available, visa holders currently in the U.S. will need to seriously consider delaying/canceling non-essential trips abroad if they require a new visa stamp for reentry to the U.S.

    It is important to clarify again that these new proposals, which have not yet been passed by Congress, will only apply to visa applicants applying for a visa stamp at a U.S. Embassy/Consulate abroad. It will not apply to nonimmigrant matters, such as H or L petitions, filed with USCIS in the U.S. It does, however, create an intriguing “What If?” scenario.

    What if Congress moves to enact further legislation that requires the application of the “clear and convincing” standard to employers seeking immigration benefits when they submit petitions to USCIS on behalf of alien workers already present in the U.S.?

    Currently, in any administrative proceeding seeking immigration benefits from USCIS, such as H or L adjudications, the standard of proof is the “preponderance of evidence” standard. This means that the petitioner need only submit evidence that leads USCIS to believe that the claim is “probably true” or “more likely than not.” “More likely than not” is defined as a greater than a 50 percent probability. As any immigration attorney who regularly prepares Requests for Evidence (“RFE”) or Motions to Reopen/Reconsider can attest, the “preponderance of evidence” standard is far more forgiving, and business friendly, than the “clear and convincing” standard, which would require enhanced documentation to adjudicate routine matters, such as extensions or amendments.

    This would create a tremendous burden on employers and businesses to elevate the caliber of documents submitted to USCIS. In the case of 3rd party deployments, clients who are already reluctant to offer statements to USCIS in support of H-1B workers, will now need to offer more detail and enhanced confirmation that the worker is deployed to their facility. In other words, routine H-1B extensions which were approved under the “preponderance of evidence” standard may not receive approval under the “clear and convincing” threshold, potentially disrupting long-term assignments and projects.

    Employers can find solace that H.R. 5203, the Visa Integrity and Security Act of 2016 has not yet been passed into law, and will likely be an issue that is faced by the next Congress and Presidential administration. As the immigration debate in the U.S. becomes more and more polarizing, it’s important that certain compromises that are made as alternatives to a radical political agenda are reviewed for their unforeseen consequences. It appears that a simple adjustment to a higher standard of proof for consular and USCIS adjudications could be as restrictive as a concrete wall along our southern border, and potentially as damaging for the inflow of talented professionals into the U.S.

    Reprinted with permission.

    About The Author

    Peter Alphonso Peter Alphonso is an Associate Attorney with The Nair Law Group, a firm representing business and corporate clients in all matters of employment-based immigration. His practice focuses on non-immigrant and immigrant visa matters for companies and individuals in the IT industry.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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