Creating Substitute Documents or Affidavits for Immigration Applications

What to do when the certificate or document you need for your immigration application cannot be found.

By , J.D.
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U.S. immigration authorities have a clear idea of what type of documents they want applicants to submit in support of visa petitions and other requests for immigration benefits. If, for example, a U.S. citizen is petitioning for a foreign-born parent to immigrate, the child will be expected to come up with a birth certificate showing the qualifying family relationship.

But what if you don't have the needed documents, and can't get them? One possible alternative is to create a sworn statement or affidavit, as described here.

When Substitute Documents Are Accepted by U.S. Immigration Authorities

If you really can't come up with a needed document, even after contacting all the appropriate government offices, U.S. immigration authorities will recognize certain types of substitutes. But you'll have to pay close attention to making sure they satisfy any doubts the officials might have.

For one thing, if you substitute a new type of evidence for a missing document, you should include a statement explaining why the original document is unavailable; preferably from someone in authority.

For example, if your birth certificate was destroyed in a fire, U.S. Citizenship and Immigration Services (USCIS) might accept in its place school records or sworn statements by people who knew you to prove your date of birth and who your parents are, along with a letter from the government agency in your country stating that the fire took place and that all records from the relevant time period were lost.

The instructions included with USCIS forms typically outline the other types of evidence that USCIS accepts. Read them carefully.

Creating a Sworn Declaration as Evidence to Accompany Your Immigration Application

One form of substitute document that you might need to use is what's called a "sworn declaration." You might, for instance, ask a longtime friend or family member to prepare one affirming your date and place of birth. If so, emphasize to the person that fancy legal language is not as important as detailed facts when it comes to convincing a U.S. immigration official to accept that person's word in place of an official government document.

The average person preparing a declaration thinks that it is enough to write something like, "I swear that Francois was born in Avignon, France in 1962 to Mr. and Mrs. Marti."

But it would be much more compelling for them to write, "I swear that I am Francois' older brother. I remember the morning that my mother brought him home from the hospital in 1962 (I was then five years old), and we grew up together in our parent's home (Mr. and Mrs. Xavier Marti) in Avignon, France."

The full declaration should be even longer and contain more details than this example. The more details that are offered, the more likely USCIS or the U.S. consulate is to accept the declaration as the truth.

To start the declaration, the person should state their complete name and address, as well as their country of citizenship. At the bottom of the declaration, the person should write:

I swear, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge.

Signed: ________________________

Date: _______________________

If preparing sworn declarations seems like too much to accomplish on your own, you could hire a lawyer for this task only.

Below is a sample of a full sworn declaration. (Remember, when writing your own declaration, tailor it to your own situation; do not simply copy the wording of the sample!).

Do I Need to Go to a Notary for a Stamp?

A declaration does not need a notary stamp. In that way, it is different from a similar legal document called an affidavit. An affidavit is a written statement that the author dates and signs—in front of someone who is authorized by the government to attest to, or certify, the authenticity of signatures.

You can also bring a declaration to a notary, however, if you want to give it an added layer of authenticity. The notary will ask for identification, such as your passport or driver's license, to make sure that you are the person whose signature is called for on the declaration. You sign the declaration in the presence of the notary, who makes a note of this in his or her notary book. The notary also places a stamp, or seal, on your document.

Again, an affidavit is not required for substitute documents such as we are describing here. However, if you want to make the document look more official, and the person preparing the affidavit knows where to find a notary, the extra trouble might be worth it.

Sample Sworn Declaration for an Immigration Matter

Here's an example of what a sworn declaration should look like. It is written to prove that an immigrant who is applying through marriage is no longer married to his first wife, due to her death.

Declaration in Support of Application of Guofeng Zheng

I, Shaoling Liu, hereby say and declare as follows:

1. I am a U.S. permanent resident, and a citizen of China, residing at 222 Azalea Drive, Seattle, WA 98111. My telephone number is 206-555-1212. I have been living in the United States since January 2, 2013.

2. I am originally from Mainland China, where I grew up in the same town (called Dahuo, in Suzhou province) as Guofeng Zheng.

3. I knew Guofeng Zheng's first wife, Meihua. I attended their wedding, and had dinner at their home several times. I also remember when Meihua fell ill with cancer. She was sick for many months before passing away on October 31, 2009.

4. I received the news of Meihua's death a few days later, in early November of 2009. I knew the doctor who had treated her, and he was very embarrassed that his treatments had failed. I also attended Meihua's funeral on November 7th. Her ashes are being kept at a family altar by her cousins.

5. I am also aware that the municipal records office, where all deaths are recorded, burnt down in the year 2011. I myself had difficulty with this, when I tried to get a copy of my mother's birth certificate last year.

I swear, under penalty of perjury, that the foregoing is true and correct to the best of my knowledge.

Signed: Shaoling Liu

Date: August 4, 2021

Where to Go for Help With an Immigration Declaration

If you are uncomfortable drafting this type of declaration, an immigration lawyer can help. In fact, many aspects of preparing immigration paperwork is surprisingly complicated, and the stakes are high. That's why many applicants find it's cost-effective, not to mention easier, to hire an attorney.

And whatever you do, don't hire a notary or notario for actual substantive work such as preparing the actual declaration. The fact that they're offering such services might indicate that they're illegally practicing law without a license, and can't be relied on to provide adequate service.

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You should not send any sensitive or confidential information through this site. Any information sent through this site does not create an attorney-client relationship and may not be treated as privileged or confidential. The lawyer or law firm you are contacting is not required to, and may choose not to, accept you as a client. The Internet is not necessarily secure and emails sent through this site could be intercepted or read by third parties.

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