Building and Strengthening Your Case With Rogers & Associates
In visa petition proceedings, the burden of proof rests with the petitioner. Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) The petitioner must prove the required elements by a preponderance of the evidence. Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989).
Thus in any type of visa based petition, it is crucial to spend time building and presenting a convincing case. Approval versus denial of your petition will depend upon how your case is submitted. What may appear easy and routine to the naked eye can in fact often involve many nuances. Two examples of the types of questions which can arise are below (employment and family based immigration)
Family-Based Immigration
A majority of green card cases are based upon family relationships. One of the most common immediate relative situations is the spousal relationship. Under 8 C.F.R. § 204.2(c)(2), where a petition for a spouse is filed, the petitioner must submit proof of the legal termination of all previous marriages of both husband and wife. In Matter of Kumah, 19 I&N Dec. 290 (BIA 1985) the beneficiary’s prior marriage in Ghana was dissolved by divorce according to tribal laws and custom.
The petitioner, a 26 year old US citizen applied for immediate relative status for the beneficiary as his spouse. The evidence included a sworn statement from the beneficiary’s uncle and father declaring that the beneficiary’s first marriage in Ghana was dissolved according to customs.
The district director denied the visa petition on the grounds that the record did not present any objective documentation as to tribal rituals necessary for divorce. The Board of Immigration Appeals affirmed this decision on the basis that it considered a court decree which either grants or confirms a Ghanaian customary divorce to be an essential element of proof in substantiating a claimed customary divorce. This case is just one of many showing that the type of evidence submitted in a case is crucial for determining outcome of a marriage petition.
Employment-Based Immigration
Another area of immigration law where it is extremely important to document carefully is employment based petitions. For example, in the extraordinary ability, outstanding professor/research and National Interest Waiver categories, documentation and presentation are crucial. For example, Grimson v. INS, 934 F. Supp. 965 (N.D.III.1996) is instructive as to the importance of both defining and documenting the field of a petitioning immigrant. In Grimson, a Canadian professional hockey player filed a visa petition, seeking classification as a priority worker of extraordinary ability.
This petition was denied by the INS on the basis that the petitioner had failed to demonstrate that he was a player of extraordinary ability. In reversing the decision by the INS, the court held that INS had failed to properly define the field. In particular, the court instructed that INS should have compared petitioner to other hockey players who play his position and serve the same role to the team as opposed to a NHL player in general. This case is instructive as to defining ones field and building a case for extraordinary ability within this defined field.