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Giving Substance to Predictions-Verification-Back End Burden of Proof

by Joseph P. Whalen

Some benefits under the Immigration and Nationality Act (INA) or related provisions require making the case up-front or "at time of filing", some decisional processes can be drawn out until the "time of adjudication", and some benefits are themselves "temporary" or "interim" in nature. Another class of benefits are "definite maybes" from the start or "iffy at best" and will rely on a later demonstration of fulfillment in order to become permanent or remain in force. In other words, one might be afforded the "benefit of the doubt" up-front, or will be allowed to place the government "on notice of intent" and will be required to substantiate the results, or fulfill obligations and/or commitments, or verify continuing eligibility at a later date. This last grouping utilizes what I refer to as a "back-end burden of proof". This essay will discuss three contexts that utilize this concept: extended absence benefits, conditional residence, and withholding of removal. First, a quick look at the meaning of substantiation is in order.


substantiate[1] (s b-st n sh - t )

tr.v. substantiated, substantiating, substantiates

1. To support with proof or evidence; verify: substantiate an accusation. See Synonyms at confirm.


    a. To give material form to; embody.
    b. To make firm or solid.

3. To give substance to; make real or actual.


[New Latin substanti re, substanti t-, from Latin substantia, substance; see substance.]


substan tia tion n.

________________________________________ ________________________________________


Noun 1. substantiation - additional proof that something that was believed (some
fact or hypothesis or theory) is correct; "fossils provided further confirmation of the evolutionary theory"

confirmation, verification, check cogent evidence, proof - any factual evidence that helps to establish the truth of something; "if you have any proof for what you say, now is the time to produce it"

bed check - a check that everyone is in bed by the time they should be

crosscheck - an instance of confirming something by considering information from several sources

odd-even check, parity check, redundancy check - a system of checking for errors in computer functioning

checksum - a digit representing the sum of the digits in an instance of digital data; used to check whether errors have occurred in transmission or storage

2. substantiation - the act of validating; finding or testing the truth of something

validation, proof

determination, finding - the act of determining the properties of something, usually by research or calculation; "the determination of molecular structures"

authentication, certification - validating the authenticity of something or someone

documentation, support - documentary validation; "his documentation of the results was excellent"; "the strongest support for this view is the work of Jones"

monetisation, monetization - establishing something (e.g. gold or silver) as the legal tender of a country

probate - the act of proving that an instrument purporting to be a will was signed and executed in accord with legal requirements


Extended Absence Benefits:

The N-470,Application to Preserve Residence for Naturalization Purposes is used as a means to either place USCIS "on notice" of an one's intent to be absent from the U.S. for an extended period for an authorized purpose under INA 316(b), or to substantiate that an absence will be or was for as authorized under INA 317 under certain circumstances. In either broad scenario, the claim may or may not stand up to scrutiny in connection with a future N-400, Application for Naturalization. In regard to INA 316(b), advance notice via the form N-470 is required of the future naturalization applicant. Under provisions of INA 317, the use of the form N-470 is optional but not required. The ultimate resolution of the issue will be finally decided during the actual N-400 naturalization proceedings.

It is during the N-400 adjudication process when the "back end burden of proof" comes into play. In order to benefit from the statutorily prescribed extended absence benefits, the naturalization applicant will be called upon to prove that they actually did what they said they would do (or claim to have done) during that long absence in addition to all other statutory requirements. The naturalization applicant must therefore, substantiate their claim by production of corroborating evidence.


Conditional Residents:

The "conditional lawful permanent resident" (CR), is issued such status based on either:

  • a marriage of less than two years duration which served as the conduit for immigrant status affords CR status to the new spouse and any qualifying stepchildren of the petitioner; or
  • an investment predicated on the full investment of a prescribed minimum amount along with the creation (or preservation) of ten (10) full-time permanent jobs for qualifying employees.
  • The CR is afforded status for an initial two (2) years. Within the ninety (90) days before the expiration of that period, they must file a request to lift conditions from status. During that follow-up process they are called upon to substantiate fulfillment of commitments. They must, as applicable, prove either that:

  • the marriage was and remains bona fide and viable or the CR is eligible for a waiver or is eligible for protection afforded by VAWA (Violence Against Women Act); or
  • infusion of at least the full minimum amount of investment and the creation and/or preservation of the minimum number of jobs.
  • ________________________________________

    Withholding of Removal (WOR):

    These folks are normally failed asylum applicants. They could not meet the requirements for asylum or were statutorily barred and were ordered removed from the United States. However, the United States has afforded them protection through WOR because their lives or freedom remain in jeopardy.

    If at a later date:

  • the individual recipient of this form of protection should become a threat to the security or public safety of the United States in some way, or
  • conditions in the country to which the person was ordered removed should improve
  • then the determination to afford protection may be revisited.

    During any review or challenge to continued protection through withholding, the recipient of WOR protection may offer evidence to rebut any presumption of safe return or changed conditions in the country of removal/return, or the threat they presumably pose. The production of corroborating evidence may overcome countervailing evidence, or successfully rebut any presumption. That would entail the substantiation of continuing eligibility or meeting a "back-end burden of proof".



    Understanding what is required allows one to be better prepared to meet the challenge. A lack of clear direction and misunderstanding or underestimating goals is a detriment to proper case preparation and presentation. Good Luck!


    1The American Heritage Dictionary of the English Language, Fourth Edition copyright 2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved.
    2Based on WordNet 3.0, Farlex clipart collection. 2003-2012 Princeton University, Farlex Inc.

    About The Author

    Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

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