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Title 8 — Aliens and NationalityRelease 119-73

§1361 Burden of proof upon alien

Title 8 › Chapter CHAPTER 12— - IMMIGRATION AND NATIONALITY › Subchapter SUBCHAPTER II— - IMMIGRATION › Part Part IX— - Miscellaneous › § 1361

Last updated Apr 6, 2026|Official source

Summary

Anyone applying for a visa, entry paper, admission, or trying to enter the United States must prove they are eligible. If they are not a U.S. citizen, they must also prove they deserve the specific status they claim — nonimmigrant, immigrant, special immigrant, immediate relative, or refugee — and that they are not barred from entering under the immigration laws. If a consular officer is not convinced, no visa or entry document will be given and the person cannot be admitted unless they persuade the Attorney General they are not barred. In removal (deportation) proceedings, the person must show when, where, and how they entered and may ask for their visa or other non‑confidential entry records. If they do not prove this, they are presumed to be in the United States unlawfully.

Full Legal Text

Title 8, §1361

Aliens and Nationality — Source: USLM XML via OLRC

Whenever any person makes application for a visa or any other document required for entry, or makes application for admission, or otherwise attempts to enter the United States, the burden of proof shall be upon such person to establish that he is eligible to receive such visa or such document, or is not inadmissible under any provision of this chapter, and, if an alien, that he is entitled to the nonimmigrant, immigrant, special immigrant, immediate relative, or refugee status claimed, as the case may be. If such person fails to establish to the satisfaction of the consular officer that he is eligible to receive a visa or other document required for entry, no visa or other document required for entry shall be issued to such person, nor shall such person be admitted to the United States unless he establishes to the satisfaction of the Attorney General that he is not inadmissible under any provision of this chapter. In any removal proceeding under part IV of this subchapter against any person, the burden of proof shall be upon such person to show the time, place, and manner of his entry into the United States, but in presenting such proof he shall be entitled to the production of his visa or other entry document, if any, and of any other documents and records, not considered by the Attorney General to be confidential, pertaining to such entry in the custody of the Service. If such burden of proof is not sustained, such person shall be presumed to be in the United States in violation of law.

Legislative History

Notes & Related Subsidiaries

Editorial Notes

References in Text

This chapter, referred to in text, was in the original, “this Act”, meaning act June 27, 1952, ch. 477, 66 Stat. 163, known as the Immigration and Nationality Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 1101 of this title and Tables.

Amendments

1996—Pub. L. 104–208, § 308(g)(9)(A), substituted “part IV” for “Part V”. Pub. L. 104–208, § 308(e)(1)(N), substituted “removal” for “deportation”. Pub. L. 104–208, § 308(d)(4)(N), substituted “inadmissible” for “subject to exclusion” in two places. 1981—Pub. L. 97–116 substituted “immigrant, special immigrant, immediate relative, or refugee” for “quota immigrant, or nonquota immigrant”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1996 AmendmentAmendment by Pub. L. 104–208 effective, with certain transitional provisions, on the first day of the first month beginning more than 180 days after Sept. 30, 1996, see section 309 of Pub. L. 104–208, set out as a note under section 1101 of this title.

Effective Date

of 1981 AmendmentAmendment by Pub. L. 97–116 effective Dec. 29, 1981, see section 21(a) of Pub. L. 97–116, set out as a note under section 1101 of this title. Abolition of Immigration and Naturalization Service and

Transfer of Functions

For abolition of Immigration and Naturalization Service,

Transfer of Functions

, and treatment of related references, see note set out under section 1551 of this title.

Reference

Citations & Metadata

Citation

8 U.S.C. § 1361

Title 8 — Aliens and Nationality

Last Updated

Apr 6, 2026

Release point: 119-73