Chapter 4 - Documentation and Evidence

A. Filing

The petitioner must file the Refugee/Asylee Relative Petition (Form I-730) in accordance with the form instructions.^[1] The petitioner must file a separate petition for each qualifying family member.^[2]

The petitioner must file Form I-730 within 2 years of the petitioner’s refugee admission or asylum approval.^[3] USCIS may exercise discretion to waive the filing deadline for humanitarian reasons.^[4]

B. Burden of Proof

The petitioner bears the burden of establishing that their qualifying spouse and children^[5] are eligible to receive following-to-join benefits.^[6] The petitioner must establish that the beneficiaries meet all eligibility requirements at the time of filing through adjudication.^[7]

C. Standard of Proof

The standard of proof is the amount of evidence needed to establish eligibility for the benefit sought. USCIS evaluates the Form I-730 under the preponderance of the evidence standard.^[8] Therefore, even if there is some doubt with respect to eligibility criteria, if the petitioner submits relevant, probative, and credible evidence that leads an officer to believe that the claim is probably true or more likely than not true, then the petitioner has satisfied the standard of proof.^[9]

However, with respect to following-to-join refugees (FTJ-Rs), there is one exception to the preponderance of the evidence standard. If there is evidence that would permit a reasonable person to conclude that the FTJ-R beneficiary may be inadmissible, the petitioner or beneficiary must demonstrate that the beneficiary is admissible under the higher “clearly and beyond doubt” standard.^[10] Thus, if evidence of an FTJ-R beneficiary’s inadmissibility emerges, then the petitioner or beneficiary bears the burden to establish that the beneficiary is clearly and beyond a doubt entitled to be admitted and is not inadmissible under Section 212(a) of the Immigration and Nationality Act (INA).

The clearly and beyond doubt standard is higher than the preponderance of the evidence standard. This means that evidence must be stronger and more persuasive to meet the clearly and beyond doubt standard than the evidence necessary to satisfy the lower preponderance of evidence standard.^[11] If the petitioner has not met the required standard, the officer may request additional evidence, issue a Notice of Intent to Deny, or deny the case.^[12]

D. Evidence

To meet the burden of proof by a preponderance of the evidence, the petitioner must submit evidence of the qualifying spouse or child relationship.^[13] The regulations provide that the petitioner should submit primary documentation of the qualifying relationship where possible, and the regulations also allow for USCIS to consider secondary evidence, affidavits, and credible oral testimony if civilly issued documents are not available to the petitioner.^[14]

1. Petitions for a Spouse

The petitioner should list the spouse on the petitioner’s application for refugee or asylum status. While the lack of the claimed spouse’s information on those applications may raise doubts regarding the claimed relationship, the petitioner’s failure to list a spouse on these applications is not a bar to approving the petition for the spouse beneficiary. Officers should elicit testimony and consider any other relevant evidence as to whether a qualifying relationship exists.

The petitioner may still meet their burden of demonstrating eligibility by the preponderance of the evidence where there is a reasonable explanation for not including the spouse on the previously filed application, or where the absence of the spouse’s name on the form was factually accurate at the time of filing.

Primary evidence for a petitioning spouse is generally a civilly issued marriage certificate from the country where the marriage occurred and, if applicable, evidence of the legal termination of previous marriages, such as a divorce or death certificate.^[15] The petitioner should also submit evidence of any legal name change of either spouse, if applicable.

2. Petitions for Children

The petitioner should generally have listed their children on the petitioner’s application for refugee or asylum status. While the lack of the claimed child’s information on those applications may raise doubts regarding the claimed relationship, the petitioner’s failure to list a child on these applications is not a bar to approving the petition for the child beneficiary. Officers should elicit testimony and consider any other relevant evidence as to whether a qualifying relationship exists.

The petitioner may still meet their burden of demonstrating eligibility by the preponderance of the evidence where there is a reasonable explanation for not including the child on the previously filed application, or where the absence of the child’s name on the application was factually accurate at the time of filing.

Primary Evidence

Primary evidence for a petitioning parent on behalf of a child depends on whether the petitioner is the father or mother and whether the beneficiary child is a child born in wedlock, a stepchild, a legitimated child, an out-of-wedlock child, or an adopted child.^[16]

Primary evidence for a petitioning mother on behalf of a natural child, whether the child was born in or out of wedlock, is generally a birth certificate showing both the child's name and the petitioning mother’s name.^[17] If applicable, the petitioner should submit evidence of any legal name change.^[18]

Whether born in or out of wedlock, primary evidence of a father-child relationship generally includes the child's birth certificate showing both the child's name and the petitioning father’s name.^[19]

For a child born in wedlock where the father is the petitioner, primary evidence is generally a marriage certificate showing the petitioning father is married to the beneficiary’s mother.^[20] If applicable, the petitioning father must also submit evidence of the legal termination of any prior marriages and the beneficiary’s mother’s previous marriages, such as a divorce or death certificate.^[21]

For a child born out of wedlock, the petitioning father must submit:

• Evidence that the child was legitimated under the laws of the jurisdiction of the petitioner or beneficiary child’s residence;^[22] or
• Evidence that a bona fide father-child relationship exists or existed between the father and beneficiary child.^[23]

Evidence of a bona fide father-child relationship should demonstrate emotional and financial ties to the child, and that the petitioner has shown genuine interest in the child's general welfare. Evidence of a bona fide father-child relationship may include, but is not limited to, the following:

• Money order receipts or canceled checks showing financial support of the child;
• Income tax returns in which the petitioner claims the child as a dependent and a member of their household;
• Medical or insurance records that include the child as a dependent;
• School records for the child that include the petitioner’s name;
• Correspondence between the petitioner and the child;
• Notarized affidavits of reliable persons who are knowledgeable about the relationship; or
• If applicable, the petitioner must submit evidence of any legal name change related to the relationship.

Primary evidence for a stepchild generally includes the child's birth certificate and the marriage certificate between the petitioner and the child's natural parent showing the marriage occurred before the beneficiary child turned 18 years old.^[24]

If the petitioner or the child's natural parent were ever previously married to other people, the petitioner must submit evidence of the legal termination of the previous marriages.^[25] The petitioner must also submit evidence of any legal name changes, if applicable.^[26]

Primary evidence for an adopted child generally includes a copy of the adoption order demonstrating the adoption was finalized before the child’s 16th birthday and evidence that the child resided with the petitioner and was in the petitioner’s legal custody for at least 2 years.^[27] Primary evidence of legal custody usually consists of a court order for legal custody or the adoption order.^[28]

Evidence that the child resided with the petitioner in a familial relationship usually consists of documents demonstrating parental control like the adoptive parents owning or maintaining the property where the child resides and providing support and day-to-day supervision.^[29]

USCIS considers the total period of legal custody in the aggregate, like it does for joint residence. Therefore, a break in legal custody or joint residence does not affect time already fulfilled.^[30] The petitioner must also submit evidence of any legal name changes, if applicable.^[31]

3. Secondary Evidence

If the petitioner is not able to obtain primary documentation such as a civilly registered marriage or birth certificate, the petitioner may submit secondary evidence in support of the qualifying relationship.^[32] It is not necessary for the petitioner to submit a statement from the civil authority certifying document unavailability for secondary evidence to meet the petitioner’s burden.

Additionally, it is not necessary for a document to be listed as “unavailable” in the U.S. Department of State (DOS) reciprocity table for USCIS to consider secondary evidence submitted by the petitioner.^[33] Whether primary or secondary evidence, however, a certified English translation must accompany all documents that are not in English.^[34]

USCIS considers secondary evidence to meet the petitioner’s burden of proof if primary documentation is not available to the petitioner. This secondary evidence may include baptismal certificates, school records, hospital records, census records, and affidavits. Petitioners may also voluntarily submit parentage testing (DNA) where reliable evidence is otherwise unavailable.

Affidavits are written statements from third parties that the petitioner may provide to meet the burden of proof. Petitioners relying on affidavits should generally submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.^[35] The author of an affidavit does not have to be physically present in the United States, have lawful status in the United States, or be a U.S. citizen.

Affidavits should contain the following information regarding the affiant:

• Full name;
• Address;
• Date and place of birth;
• Their relationship to the petitioner or beneficiary;
• Full information concerning the event; and
• Complete details explaining how the affiant acquired personal knowledge of the event.

The lack of a sworn statement, lack of the affiant’s address, or lack of personal knowledge is not disqualifying, but the affidavit may be considered as less probative and may not be sufficient evidence to meet the petitioner’s burden without other secondary evidence.

Footnotes

[^ 1] See 8 CFR 103.2(a)(1). See instructions for the Refugee/Asylee Relative Petition (Form I-730).

[^ 2] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).

[^ 3] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).

[^ 4] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).

[^ 5] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 6] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 7] See 8 CFR 207.7(c), 8 CFR 208.21(b), and 8 CFR 103.2(b)(1).

[^ 8] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 9] See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (defining more likely than not as a greater than 50 percent probability of something occurring). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof, Section B, Standards of Proof [1 USCIS-PM E.4(B)].

[^ 10] USCIS generally applies the “clearly and beyond doubt” standard in INA 235(b)(2)(A) and INA 240(c)(2) to admissibility determinations. See Matter of Bett (PDF), 26 I&N Dec. 437, 440 (BIA 2014).

[^ 11] See Matter of Patel (PDF), 19 I&N Dec. 774, 783 (BIA 1988) (citing Matter of Carrubba (PDF), 11 I&N Dec. 914, 917 (BIA 1966)).

[^ 12] For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny [1 USCIS-PM E.6(F)].

[^ 13] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 14] See 8 CFR 207.7(e) and 8 CFR 208.21(f) (cross-referencing to relevant sections of 8 CFR 204.2). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].

[^ 15] See 8 CFR 204.2.

[^ 16] See 8 CFR 204.2(d)(2).

[^ 17] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 18] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 19] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 20] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 21] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 22] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 23] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 24] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 25] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 26] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 27] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 28] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 29] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 30] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 31] See 8 CFR 207.7(e) and 8 CFR 208.21(f).

[^ 32] See 8 CFR 207.7(e) and 8 CFR 208.21(f) (stating, “[w]here possible [evidence] will consist of the documents specified in [8 CFR] 204.2(a)(1)(i)(B), (a)(1)(iii)(B), (a)(2), (d)(2), and (d)(5) of this chapter”). Therefore, Form I-730 petitioners are not subject to the general presumption of ineligibility at 8 CFR 103.2(b)(2)(i) since 8 CFR 207.7(e) and 8 CFR 208.21(f) supersede that general rule.

[^ 33] See DOS’s U.S. Visa: Reciprocity and Civil Documents by Country webpage for country-specific information on the availability and reliability of various foreign documents.

[^ 34] See 8 CFR 103.2(b)(3) (“Any document containing foreign language submitted to USCIS [must] be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator's certification that [the translator] is competent to translate from the foreign language into English.”).

[^ 35] See 8 CFR 207.7(e) and 8 CFR 208.21(f) (cross-referencing to relevant sections of 8 CFR 204.2). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].