Unavailable Civil Records and Secondary Evidence
When a required birth, marriage, divorce, death or other civil record does not exist or cannot be obtained, USCIS does not simply waive the evidentiary requirement. Under 8 C.F.R. §103.2(b)(2), the applicant generally must establish the nonexistence or unavailability of the required primary record and then submit appropriate secondary evidence. If both primary and secondary evidence are unavailable, the regulation provides for two or more affidavits from nonparties with direct personal knowledge of the event and circumstances.
What should an applicant do when a required civil record is unavailable?
For ordinary cases, affidavits are the final evidentiary level after the applicant establishes that both required primary evidence and relevant secondary evidence are unavailable.
The evidentiary hierarchy
| Level | Evidence |
|---|---|
| 1. Primary | The official required civil or government record. |
| 2. Secondary | Church, school, hospital, census, family-register or other reliable evidence of the same facts. |
| 3. Affidavits | Two or more sworn or affirmed statements from qualifying nonparties with direct personal knowledge when primary and secondary evidence are unavailable. |
USCIS can reject an attempt to use weaker evidence where the stronger required record is normally available and the applicant has not established genuine unavailability.
Common civil records
The secondary-evidence rules frequently arise with:
- Birth certificates;
- Marriage certificates;
- Divorce decrees;
- Death certificates;
- Adoption records;
- Custody records;
- Legitimation records;
- Name-change documents;
- Police or court records; and
- Other official records required to establish adjustment eligibility.
See Birth Certificates for Adjustment of Status and Marriage Certificates and Divorce Records.
Check the Department of State Reciprocity Schedule first
The Department of State Reciprocity Schedule identifies country-specific civil-document availability and issuing authorities.
It can indicate:
- Whether the record generally exists;
- What the official document is called;
- Which authority issues it;
- Whether multiple versions exist;
- Whether historical records are unavailable;
- Whether special procedures apply; and
- How the record can normally be obtained.
If the Reciprocity Schedule shows that the document is ordinarily available, USCIS may require stronger proof of why this particular applicant cannot obtain it.
Government statement of nonavailability
8 C.F.R. §103.2(b)(2)(ii) generally requires an original written statement on government letterhead from the relevant authority when the required record does not exist.
The statement should indicate:
- That the record does not exist or cannot be located;
- The reason the record does not exist;
- The office or registry searched;
- The relevant time and place; and
- Whether similar records for that time and place are available.
The statement should address the particular record and provide enough information to establish genuine nonexistence or unavailability under the regulation.
When a foreign government nonavailability statement is not required
The regulation provides an exception where Department of State guidance indicates that the particular type of foreign document generally does not exist.
In that situation, the applicant can rely on the authoritative country-specific information rather than attempting to obtain an impossible certification from the foreign government.
Print or otherwise preserve the applicable Reciprocity Schedule or Foreign Affairs Manual information showing that the document generally is unavailable.
Repeated good-faith attempts
An applicant who cannot obtain either the required record or a nonavailability statement from the foreign authority may submit evidence of repeated good-faith efforts.
Evidence can include:
- Written requests to the registry;
- Email correspondence;
- Online application confirmations;
- Postal receipts;
- Courier records;
- Responses from government offices;
- Consular correspondence;
- Attorney or local-agent requests;
- Appointment records; and
- Proof of unsuccessful searches.
Good-faith attempts help establish unavailability, but the regulation preserves USCIS authority to require the document or government statement when USCIS determines that it can ordinarily be obtained.
Secondary evidence
Secondary evidence should be relevant to the same fact the missing primary document would have established.
Examples include:
- Church records;
- Baptismal records;
- School records;
- Hospital records;
- Medical records;
- Census records;
- Family registers;
- Early government identity documents;
- Military records;
- Employment records;
- Old passports;
- Insurance records;
- Contemporaneous correspondence; and
- Other records created independently of the immigration application.
Contemporaneous records usually carry greater weight
A secondary document created close in time to the event can be especially useful because it is less likely to have been created for the immigration case.
Examples include:
- Baptism record created shortly after birth;
- School enrollment record from childhood;
- Old family register;
- Hospital delivery record;
- Early passport;
- Government census entry; and
- Contemporaneous marriage or household record.
USCIS evaluates reliability, source, authenticity, consistency and relevance. A contemporaneous record is useful because of its evidentiary context, not merely because it is old.
If secondary evidence is also unavailable
8 C.F.R. §103.2(b)(2)(i) permits affidavits only after the applicant demonstrates that both the required primary document and relevant secondary evidence do not exist or cannot be obtained.
The regulation requires:
- Two or more affidavits;
- Sworn or affirmed statements;
- Affiants who are not parties to the petition; and
- Direct personal knowledge of the event and circumstances.
The applicant should first establish why government and secondary documentary evidence cannot reasonably be produced.
Who should sign an affidavit?
A useful affiant is someone who actually knows the event from personal experience.
Examples can include:
- Parent present at birth;
- Older relative with first-hand knowledge;
- Birth attendant;
- Person present at marriage;
- Family member who personally knew the marital event;
- Custodian familiar with records; or
- Other person with direct knowledge of the relevant circumstances.
The affidavit should explain how the affiant knows the facts rather than merely reciting the applicant's biography.
Affidavit content
A strong affidavit should identify:
- Affiant's full name;
- Date and place of birth;
- Address;
- Relationship to the applicant;
- How the affiant acquired direct knowledge;
- Specific event being established;
- Date and place of event;
- Persons involved;
- Relevant surrounding circumstances;
- Why the affidavit is being submitted; and
- Signature under oath or affirmation as appropriate.
“I know she was born in 1980” is less useful than an explanation of how the affiant personally remembers the birth, location, parents and surrounding events.
Counsel statements are not evidence
An attorney can explain the evidentiary framework and summarize submitted records, but counsel's unsupported assertion does not replace evidence establishing nonavailability.
If the position is that a document cannot be obtained, submit:
- Government statement;
- Reciprocity Schedule evidence;
- Correspondence;
- Search records;
- Applicant declaration;
- Secondary evidence; and
- Other documentation supporting the claim.
Late-registered civil records
A record created long after the event may still be valid primary evidence, but USCIS can examine its reliability.
Useful corroboration can include:
- Earlier school records;
- Religious records;
- Medical records;
- Old passports;
- Family registers;
- Government records; and
- Affidavits with direct personal knowledge.
A recently reissued copy of an old contemporaneous registry entry should be distinguished from a record that was first registered decades late.
Destroyed archives
War, fire, natural disaster or government collapse can destroy civil registries.
The filing can establish:
- Destruction of the relevant archive;
- Date and scope of destruction;
- Government or credible institutional confirmation;
- Applicant's attempts to obtain replacement record;
- Available secondary evidence; and
- Affidavits if secondary evidence is also unavailable.
Connect the documented event to the actual registry that would have maintained the applicant's record.
Refugees, asylees and stateless applicants
Humanitarian applicants can face unusual evidence problems because civil records may be inaccessible, destroyed or dangerous to request.
Potential alternative evidence includes:
- UNHCR records;
- Refugee processing documents;
- Former passports;
- National identity documents;
- Asylum records;
- School documents;
- Religious records;
- Family records;
- Prior government files; and
- Credible declarations.
The ordinary burden of proof still applies unless a specific statute provides a different evidentiary rule.
VAWA's any-credible-evidence rule
8 C.F.R. §103.2(b)(2)(iii) contains an important exception for qualifying VAWA self-petitions.
USCIS considers any credible evidence relevant to the qualifying self-petition, and the self-petitioner is not required to demonstrate that preferred primary or secondary evidence is unavailable before submitting other credible evidence.
VAWA has a specific evidentiary rule intended to account for the reality that an abused self-petitioner may not have access to documents controlled by the abusive relative.
Foreign-language secondary evidence
Every foreign-language document submitted to USCIS requires a complete English translation.
The translation must include:
- All material text;
- Names;
- Dates;
- Stamps;
- Seals;
- Annotations;
- Handwritten entries; and
- Other relevant content.
The translator must certify completeness and accuracy and competency to translate into English.
USCIS can request the original
USCIS regulations permit the agency to request an original document at any time.
If USCIS requests an original:
- Follow the notice;
- Submit by the deadline;
- Retain a copy;
- Use trackable delivery where appropriate; and
- Request return after adjudication if USCIS does not return it within a reasonable period.
USCIS can accept a copy with the initial filing and still request the original when authenticity becomes material.
RFE for an allegedly available record
If USCIS states that a particular civil record is generally available, compare the RFE with:
- Current Reciprocity Schedule;
- Applicant's place and date of event;
- Historical availability;
- Correct issuing authority;
- Actual search attempts;
- Government responses; and
- Alternative versions of the civil record.
See I-485 RFE and NOID.
If USCIS identifies a specific official record required by the country schedule, determine whether that record can be obtained rather than repeatedly submitting a different local document.
Example: birth record generally unavailable by country guidance
The Reciprocity Schedule explains that civil birth certificates for the applicant's place and historical period generally do not exist. The applicant documents that country-specific unavailability and submits contemporaneous religious and school records proving the applicant's birth facts. A separate foreign-government nonavailability letter may not be required where the Department of State guidance itself establishes general nonexistence.
Example: record usually available but this file was destroyed
The country ordinarily issues birth certificates, but the local registry confirms on official letterhead that the applicant's original volume was destroyed in a fire and no replacement civil record can be issued. The applicant submits the government statement plus early school and religious records as secondary evidence.
Example: no primary or secondary evidence
An applicant establishes that the official civil registry was destroyed and that no school, religious, hospital, census or other secondary records survive. The applicant then submits multiple detailed sworn affidavits from nonparties who personally witnessed or directly knew the event, satisfying the final evidentiary level contemplated by 8 C.F.R. §103.2(b)(2).
Unavailable-record checklist
- Identify exact required primary record.
- Check Department of State Reciprocity Schedule.
- Identify correct issuing authority.
- Attempt to obtain primary record.
- Preserve requests and responses.
- Obtain government nonavailability statement where required.
- Document repeated good-faith attempts if the statement cannot be obtained.
- Gather contemporaneous secondary evidence.
- Explain what each secondary document proves.
- Demonstrate secondary evidence is unavailable before relying solely on affidavits.
- Use two or more qualifying affidavits where the ordinary regulation requires them.
- Confirm affiants are not parties to the petition.
- Confirm direct personal knowledge.
- Provide full certified translations.
- Preserve originals.
- Apply VAWA any-credible-evidence rules where applicable.
Common secondary-evidence mistakes
Skipping the Primary Record
Affidavits are submitted even though the official civil record is ordinarily available.
No Proof of Unavailability
The applicant merely states that the document could not be obtained.
Weak Secondary Evidence
Documents created recently for immigration purposes are used despite older independent records being available.
Affiants Lack Personal Knowledge
The affidavits repeat facts the affiant learned from the applicant rather than facts personally known.
Counsel Assertion Replaces Evidence
A legal brief claims the record is unavailable without documentary support.
Ignoring VAWA Rules
The ordinary evidentiary hierarchy is mechanically imposed on a qualifying VAWA self-petitioner despite the any-credible-evidence provision.
Primary authorities
Related INA245.com guides
Frequently asked questions
Can I use affidavits instead of a birth certificate?
Not ordinarily if the required birth certificate is available. Under the general regulation, the applicant first establishes that primary evidence is unavailable, then uses secondary evidence, and uses affidavits only when both primary and secondary evidence are unavailable.
How many affidavits are required when no records exist?
8 C.F.R. §103.2(b)(2) provides for two or more affidavits from persons who are not parties to the petition and who have direct personal knowledge of the event and circumstances.
Do I need a government letter saying the record does not exist?
Generally yes when the record does not exist, unless Department of State guidance establishes that the type of foreign document generally does not exist or another regulatory provision applies.
What if the government will not issue the nonavailability letter?
The regulation permits evidence of repeated good-faith attempts to obtain the document or statement, although USCIS can still require it where USCIS determines the record is generally available.
What is secondary evidence?
Examples include church, school, hospital, census, family-register and other reliable records relevant to the fact the missing primary document would have established.
Do VAWA applicants have the same evidence hierarchy?
Not in the same way. The regulation directs USCIS to consider any credible evidence relevant to qualifying VAWA self-petitions and does not require the self-petitioner to first prove preferred evidence is unavailable.
When a civil record is unavailable, the solution is an evidence hierarchy: prove why the primary record is missing, use the strongest secondary evidence available, and rely on affidavits only where the governing rules permit.
The Messersmith Law Firm, P.A. represents adjustment applicants in matters involving unavailable civil records, secondary evidence, birth and marriage records, foreign document problems, RFEs, NOIDs, VAWA evidence, and complex Form I-485 filings.
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