- Introduction: Proving Citizenship or Permanent Resident Status to File Family-Based Immigrant Visa Petition
- Guidance in the USCIS Regulations and the FAM
- Conclusion: Evidence of Citizenship or Permanent Residency for Family Petitioning
Introduction: Proving Citizenship or Permanent Resident Status to File Family-Based Immigrant Visa Petition
In order to file a family-based immigrant visa petition on behalf of a relative, the petitioner must be a U.S. citizen or lawful permanent resident (LPR). Accordingly, the petitioner must prove that he or she is a U.S. citizen or an LPR in order for the petition to be approvable. In this article, we will explore the evidentiary requirements for proving status in the Department of Homeland Security (DHS) regulations used by United States Citizenship and Immigration Services (USCIS) regulations and in the Department of State's (DOS's) Foreign Affairs Manual (FAM).
In order to act as the petitioner for a relative in a family-based immigrant visa petition, both the USCIS regulations found in 8 C.F.R. 204.1 and DOS's Foreign Affairs Manual at 9 FAM 202.1 require the petitioner to submit primary evidence of his or her status. There is no substitution for primary evidence for demonstrating LPR status. In limited circumstances, a U.S. citizen petitioner will be able to submit secondary evidence to demonstrate that he or she is a citizen.
USCIS adopts the “any credible evidence” standard for Violence Against Women Act (VAWA) self-petitioners.
USCIS is always responsible for adjudicating the underlying immigrant visa petition. If the beneficiary is applying for adjustment of status from inside the United States, USCIS will determine whether the beneficiary is eligible for his or her immigrant visa. If the beneficiary is applying for the immigrant visa abroad, the consular office will assess the petition and make a final determination of visa eligibility before granting the visa.
If the petitioner is an LPR, 8 C.F.R. 204.1(g)(1)(viii) requires that he or she have a “Form I-551, Permanent Resident Card (Green Card), or other proof given by [USCIS] as evidence of lawful permanent residence.” The regulation states that photocopies of the Form I-551 can be submitted as evidence. However, under 8 C.F.R. 204.1(f)(2), USCIS has the discretion to require the submission of the original Form I-551.
8 C.F.R. 103.2(b)(17) states that DHS will verify whether someone is a permanent resident from its records. Further, “in the absence of countervailing evidence, such official records will be regarded as establishing lawful admission for permanent residence.”
There is no form of secondary evidence that will suffice as evidence of permanent resident status.
A permanent resident who lost his or her Form I-551 may file a Form I-90, Application to Replace Permanent Resident Card by mail or online with USCIS.
8 C.F.R. 204.1(g)(1) lists primary evidence of U.S. citizenship:
- (i) A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States;
- (ii) An unexpired United States passport issued initially for a full ten-year period to a petitioner over the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national);
- (iii) An unexpired United States passport issued initially for a full five-year period to the petitioner under the age of eighteen years as a citizen of the United States (and not merely as a noncitizen national);
- (iv) A statement executed by a United States consular officer certifying the petitioner to be a United States citizen and the bearer of a currently valid United States passport;
- (v) The petitioner's Certificate of Naturalization or Certificate of Citizenship;
- (vi) Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the petitioner;
- (vii) Photocopies of …. a Certificate of Naturalization or Certificate of Citizenship may be submitted as evidence of status as a …. United States citizen…
If the U.S. citizen petitioner was born in the United States, a birth certificate issued by a civil authority will suffice as proof of citizenship.
If the petitioner is filing the petition at a U.S. consular office abroad or mailing it to DHS from abroad, it will often be more convenient to use a passport as proof of citizenship as set forth in 8 C.F.R. 204.1(g)(1)(ii) and (iii). In these cases, 8 C.F.R. 204.1(g)(iv) states that USCIS will accept a statement from DHS that certifies that the petitioner is a U.S. citizen who is the bearer of a currently valid U.S. passport. 9 FAM 202.1-3 states that consular officers may determine that the petitioner has presented a qualifying passport on some occasion, or that records at the consular post show that the petitioner is the U.S. citizen who is the bearer of a qualifying passport. If the consular officer determines that the petitioner is the bearer of a qualifying passport, he or she will attach a statement certifying this to the immigrant visa petition.
8 C.F.R. 204.1(g)(1)(v) establishes that a Certificate of Naturalization or Certificate of Citizenship may be accepted as evidence of citizenship while 8 C.F.R. 204.1(g)(1)(vii) explains that photocopies may be accepted. However, as we explained with regard to LPRs, USCIS has discretion under 8 C.F.R. 204.1(f)(2), to require the submission of original documentation. If the petitioner cannot produce the original documentation when required, he or she must obtain replacement documentation.
9 FAM 202.1-4 explains that consular officers may assist applicants seeing a replacement certificate of naturalization or citizenship if the applicant is physically present in the consular district and submits the Form N-565, Application for Replacement Naturalization/Citizenship document in person. After submitting the Form N-565 with fee, the consular officer will forward the application to the appropriate DHS Service Center.
9 FAM 202.1-3(c) states that if the U.S. citizen petitioner is filing an immediate relative petition for an adopted orphan, the approved Form I-600-A, Application for Advance Processing of Orphan Petition, demonstrates to consular officers that USCIS has determined the petitioner meets the citizenship and age requirements.
8 C.F.R. 204.1(f)(1) states that if it is established that primary evidence of citizenship is unavailable, secondary evidence must be presented.
If secondary evidence is submitted directly to a consular office, consular officers are instructed under 9 FAM 202.1-3 to regard the petition as “not clearly approvable” and forward it to the USCIS office with jurisdiction.
8 C.F.R. 204.1(g)(2) explains that all secondary evidence “will be evaluated for authenticity and credibility.” Secondary evidence may include, but is not limited to, one or more of the following:
- (i) A baptismal certificate with the seal of the church, showing the date and place of birth in the United States and the date of baptism;
- (ii) Affidavits sworn to by persons who were living at the time and who have personal knowledge of the event to which they attest. The affidavits must contain the affiant's full name and address, date and place of birth, relationship to the parties, if any, and complete details concerning how the affiant acquired knowledge of the event;
- (iii) Early school records (preferably from the first school) showing the date of admission to the school, the child's date and place of birth, and the name(s) and place(s) of birth of the parent(s);
- (iv) Census records showing the name, place of birth, and date of birth or age of the petitioner; or
- (v) If it is determined that it would cause unusual delay or hardship to obtain documentary proof of birth in the United States, a United States citizen petitioner who is a member of the Armed Forces of the United States and who is serving outside the United States may submit a statement from the appropriate authority of the Armed Forces. The statement should attest to the fact that the personnel records of the Armed Forces show that the petitioner was born in the United States on a certain date.
Where 8 C.F.R. 204.1(g)(2)(i) thru (iv) applies, it is best for the petitioner to consult with an experienced immigration attorney to obtain as much compelling evidence as possible to support his or her citizenship as possible.
U.S. Armed Forces members serving abroad may, if it is determined that having to obtain documentary proof of birth in the United States would cause “unusual delay or hardship,” submit a statement from the appropriate authority of the Armed Forces attesting to the citizen's birth in the United States. The regulation is mirrored in the FAM guidance for consular officers.
USCIS regulations apply a different standard of evidence for VAWA self-petitioners under the following sections 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the INA. These statutes allow certain spouses (or former spouses) and children of U.S. citizens or LPRs to self-petition for permanent residency if they were subjected to battery or extreme cruelty.
8 C.F.R. 204.1(f) will evaluate evidence of the abusive spouse or parent's citizenship or permanent resident status by the “any credible evidence” standard. This is in recognition of the difficulty that a victim of abuse may have in procuring primary evidence relating to his or her abuser. The self-petitioner may demonstrate that he or she cannot obtain primary or secondary evidence related to the abuser's citizenship or permanent resident status, although he or she is not required to do so. USCIS has sole discretion to determine the credibility of evidence and the weight that should be afforded to the evidence.
8 C.F.R 204.1(g)(3) states that when a self-petitioner is unable to present primary or secondary evidence relating to the abuser's status, USCIS will attempt to electronically verify the abuser's citizenship or immigration status from information in its records. If USCIS is unable to verify the abuser's status, the petition will be adjudicated based on the evidence submitted by the self-petitioner.
One of the first steps to filing an immigrant visa petition for a relative is establishing the U.S. citizenship or permanent resident status of the petitioner. In many cases, this will be one of the least complicated parts of the petitioning process. However, this seemingly simple step can be complicated under certain circumstances such as missing documentation. Persons with a missing Form I-551, Certificate of Citizenship, or Certificate of Naturalization should work to obtain a replacement as expeditiously.
U.S. citizen petitioners who do not have primary evidence of U.S. citizenship should seek counsel on compiling evidence that will satisfy USCIS.
Any U.S. citizen or permanent resident who wants to petition for a relative to become a permanent resident should consult with an experienced immigration attorney. Such an attorney will be able to help the petitioner throughout the entire petitioning process, including with any issues regarding proof of citizenship or permanent residency.
Resources and Materials:
Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 827, 1171, Print. Treatises & Primers.