Burden of Proof and Standard of Proof
The burden is on the petitioner to establish that he or she is eligible for the benefit sought. This means that if an alien
seeking a benefit has not shown eligibility, the application should be
denied. The government is not called upon to make any showing of
ineligibility until the alien has first shown that he is eligible. You
may contrast this in your mind with a criminal case or with a removal
hearing in which the government must first prove its case.
Evidential Standards
Because the strict rules of evidence used in judicial proceedings
do not apply in administrative proceedings, a wide range of oral or
documentary evidence may be used in a visa petition proceeding or other
immigration benefit application proceeding. A copy of a public record
(birth certificate, marriage or divorce certificates, adoption decrees,
and similar documents) is admissible if the person having custody over
the original records has certified the copy. For example, a copy of a
divorce decree is admissible if the clerk of the court has certified the copy. A
regulation, provides that a certified copy of a foreign public record
(other than a Canadian record) should also be authenticated by a U.S.
Foreign Service officer or, if the country is a party to the Hague
Convention on abolition of legalization requirements for foreign public
records, by a higher-level official of the foreign country.
Best Evidence Rule
In adjudicating a petition or application for a benefit, immigration officer will often deal with evidence and facts which are of a documentary nature, such as marriage dates, dates of birth, death, divorce, criminal records, school records, etc. This often brings into play what is known as the "best evidence rule.” While the best evidence rule is not strictly applicable in an administrative proceeding, IOs should adhere to it as closely as they can. The rule states that where the contents of a document are at issue in a case, the document itself must be introduced rather than secondary evidence as to its content.
Primary and Secondary Evidence
Closely related to the best evidence rule is the concept of
primary and secondary evidence. Primary evidence is evidence which on
its face proves a fact. For example, the divorce certificate is primary
evidence of a divorce. Secondary evidence is evidence which makes it
more likely that the fact sought to be proven by the primary evidence is
true, but cannot do so on its own face, without any external reference.
In the above example, church records showing that an individual was
divorced at a certain time would be secondary evidence of the divorce.
Adjudicators will often
encounter situations in which primary evidence is unavailable. This
gives rise to a presumption of ineligibility
, which is the applicant or petitioner’s burden to overcome.
A petitioner or applicant cannot simply assert that the primary
evidence does not exist. The absence of a primary record, instead, must
be proven either:
- By a written statement from the appropriate issuing authority attesting to the fact that no record exists or can be located, or that the record sought was part of some segment of records which were lost or destroyed; or
- By evidence (such as an affidavit) "that repeated good faith attempts were made to obtain the required document or record."
To check country-specific information on availability of
various foreign documents see below drop-down menu that is used by Immigration Officers. If this Appendix shows that a particular
record is generally not available in a particular country, USCIS may
accept secondary evidence without requiring the written statement from
the issuing authority.
General List of Commonly Required Documents
Birth Certificates
You (and any family members immigrating with you to the United States) must obtain an original birth certificate issued by the official custodian of birth records in your country of birth, showing your date of birth, place of birth, and parentage.The certificate must contain the:
- Your date of birth
- Your place of birth
- Names of both parents
- Indication by the appropriate authority that it is an extract from the official records
If your birth record is not obtainable for any reason, a certified statement must be obtained from the appropriate government authority explaining why your birth record is unavailable. You must also submit secondary evidence such as:
- A baptismal certificate that contains the date and place of birth, as well as both parents names (providing the baptism took place shortly after birth)
- An adoption decree for an adopted child
- An affidavit from a close relative, preferably your mother, stating the date and place of birth, both parents names, and your mother’s maiden name.
SAMPLE AFFIDAVIT
AFFIDAVIT BY Mr. xxxxxx (FATHER NAME) & Mrs.xxxxxxx (MOTHER NAME)
Re: [YOUR FULL NAME]
I, Mr. [FATHER FULL NAME] & Mrs. [MOTHER FULL NAME], here by depose and say:
1. Our full and complete address is xxxxxxxxxxx
2. That I, FATHER'S FULL NAME Age XXX, was born on MM/DD/YYY in the town/city of xxxxxxxx
3. That I, MOTHER'S FULL NAME Age XXX, was born on MM/DD?/YYY in the town/city of xxxxxxxx
4. We got married on MM/DDYYY in the city of XXXXXX, COUNTRY.
5. We, FATHER'S & MOTHER'S FULL NAME are parents of the following children:
a. YOUR FULL NAME born on MM/DD/YY; andb. YOUR SIBLINGS NAME born on MM/DD/YYYY
6. [YOUR FULL NAME] was born in CITY, STATE, COUNTRY
7. This affidavit
is being submitted because official full name of [YOUR FULL NAME] was
not [mentioned] OR [registered] OR [OTHER REASON] in the birth certificate at the time of birth. [His/Her] Full Name
is [YOUR FULL NAME] /OR/ [YOUR FULL NAME] birth was not registered because [reason].
I declare under penalty of perjury, that the foregoing is a true and correct statement.
_________________________
FATHER NAME and signature
FATHER NAME and signature
_________________________
MOTHER NAME and signature
MOTHER NAME and signature
More specific information for each country can be seen after selecting your country above.
Marriage Certificates
Who needs to submit marriage certificates?If you are married, you must obtain an original marriage certificate, or a certified copy, bearing the appropriate seal or stamp of the issuing authority.
Note: Marriage certificates from certain countries are unavailable. More specific information for each country can be seen after selecting your country above.
If you were convicted of a crime, you must obtain a certified copy of each court record and prison record, regardless of the fact that you may have subsequently been granted amnesty, a pardon or other act of clemency.
Court records should include:
- Complete information about the circumstances of the crime
- The disposition of the case, including sentence, fines or other penalties imposed
Who needs to submit marriage termination documentation?
If you were previously married, you must obtain evidence of the termination of EACH prior marriage. Evidence must be in the form of original documents issued by an official authority, or certified copies bearing the appropriate seal or stamp of the issuing authority, such as:
- FINAL divorce decree
- Death certificate
- Annulment papers
Deportation Documentation
Who needs to submit deportation documents?If you have been previously deported or removed from the United States at government expense, you must obtain Form I-212, Permission to Reapply After Deportation, from the U.S. Citizenship and Immigration Service, or from a U.S. Embassy or Consulate, and follow the instructions on that form.
Military Records
If you served in the military forces of any country, you must obtain a copy of your military record.
Note: Military records from certain countries are unavailable.
More specific information for each country can be seen after selecting your country above.
Who needs to submit petitioner documents?
If you are applying for an IR5 (Parent of a U.S. Citizen) visa, you are required to provide:
- Original or certified copy of your Petitioner’s birth certificate
- Original or certified copy of your Petitioner’s marriage certificate from the Petitioner’s current and all previous marriages.
- Original or certified copy of your Petitioners birth certificate.
Who needs to submit a photocopy of their passport?
The applicant and each family member accompanying the applicant must submit a photocopy of the biographic data page from their respective valid passport.
More specific information for each country can be seen after selecting your country above.
Photographs
You must submit two identical color photographs. Review Photograph Requirements for size specifications and more information.
