A. Burden and Standard of Proof

Generally, the petitioner must establish eligibility for a family-based immigrant visa petition by a preponderance of the evidence.^[1] If the petitioner submits relevant, probative, and credible evidence that leads USCIS to believe that the claim is more likely than not true, the petitioner has satisfied the preponderance of the evidence standard.

If the initial filing does not contain sufficient evidence to demonstrate eligibility by the appropriate standard of proof, USCIS either issues a Request for Evidence (RFE), issues a Notice of Intent to Deny (NOID), schedules an interview, or denies the petition depending on the facts and law. For instance, USCIS has discretion to deny a petition without issuing an RFE or NOID if there is no statutory basis for approval or for failure to submit initial required evidence.^[2] However, USCIS must provide the petitioner with sufficient detail of any derogatory information that is unknown to the petitioner when USCIS intends to take adverse action on a family-based petition (through a NOID, RFE, or interview).

USCIS adjudicates the Petition for Alien Relative (Form I-130) based on the information contained in the form, submitted documentation, other information in the record, and testimony provided at the interview (if applicable).

B. Evidence

A petitioner seeking to bring an alien beneficiary to the United States as an immediate relative or a family-based preference relative must submit the following initial evidence^[3] in accordance with the Form I-130 instructions:

1. Documentation establishing the existence of a qualifying relationship with the alien beneficiary, such as copies of birth certificates, marriage certificates, and evidence of termination of any prior marriages, if applicable;^[4]
2. Documentation establishing the petitioner’s status as a U.S. citizen, U.S. national,^[5] or lawful permanent resident (LPR);^[6] and
3. Documentation of any legal name changes (if applicable) and any other documentation requested in the instructions.^[7]

Documentation of Petitioner’s Citizenship or Immigration Status

Documentation of a petitioner’s citizenship or immigration status includes, but is not limited to:

1. A copy of the petitioner’s birth certificate issued by a civil registrar, vital statistics office, or other U.S. civil authority;
2. A copy of the petitioner’s Certificate of Naturalization or Certificate of Citizenship issued by USCIS;
3. A copy of the petitioner’s Consular Report of Birth Abroad issued by the U.S. Department of State (DOS);
4. A copy of the petitioner’s current, unexpired U.S. passport or passport card; or
5. A copy of the petitioner’s Permanent Resident Card (Form I-551) or other valid unexpired evidence of status.^[8]

Types of Evidence for Family-Based Immigrant Visa Petitions^[9]

Generally, a petitioner of a family-based petition must submit primary evidence in support of a claim of U.S. citizenship, LPR status, or U.S. national status and a claim of a qualifying relationship to the alien beneficiary.^[10]

If a petitioner does not provide primary evidence in support of a family-based petition, USCIS generally only considers other records as secondary evidence if primary evidence is determined to be unavailable or unreliable (according to the DOS’s Foreign Affairs Manual Reciprocity and Civil Documents webpage).^[11]

Petitioners may also submit two or more sworn written statements (affidavits) from third parties who had personal knowledge of the event and circumstances establishing a claimed relationship, such as the date and place of birth, marriage, or death, if both primary and secondary evidence are unavailable.^[12]

Footnotes

[^ 1] SeeINA 291.SeeMatter of Brantigan (PDF),11 I&N Dec. 453 (BIA 1966). See Matter of Phillis (PDF), 15 I&N Dec. 385 (BIA 1975) (burden of proof to establish eligibility for the benefit sought lies with the petitioner). SeeMatter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010). The preponderance of the evidence standard of proof, however, does not apply where a higher standard is specified by law (such as, the “clear and convincing evidence” standard). For more information on the burden or standard of proof, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 2] For additional information on RFEs and NOIDs, 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)].

[^ 3] Documents that are not in English must be accompanied by a full, certified English translation. See 8 CFR 103.2(b)(3). Applicants should submit only photocopies of original documents unless USCIS specifically requests an original document.

[^ 4] See 8 CFR 103.2 and 8 CFR 204.2.

[^ 5] A person who, though not a citizen of the United States, owes permanent allegiance to the United States (for example, persons born in American Samoa or Swains Island). See definition in Glossary.

[^ 6] See 8 CFR 204.1(g)(1)(i-vi).

[^ 7] Many of the documents required as initial evidence may also be used to establish the petitioner’s and the beneficiary’s identity. Identity is material to a request for benefits. See Matter of B- and P-, 2 I & N Dec. 638 (BIA 1946). For additional information on identify verification for USCIS benefit requests, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 5, Verification of Identifying Information [1 USCIS-PM E.5]. Any substantial variation in the name of the petitioner or beneficiary, when compared with other records, must be satisfactorily explained by the submission of additional documents, affidavits, or other appropriate means.

[^ 8] See 8 CFR 204.1(g)(1)(vii). In the case of an LPR who has not yet received a Permanent Resident Card (Form I-551), a temporary U.S. Customs and Border Protection-issued or USCIS-issued stamp in a passport or on an Arrival/Departure Record (Form I-94) reflecting LPR status is acceptable evidence of lawful permanent residence. In the absence of such evidence, the petitioner may submit any other documents issued or endorsed by USCIS relevant to the claim to LPR status. If the LPR status cannot be verified through systems checks or the petitioner’s file, or if needed to resolve any discrepancies, USCIS may also refer a petitioner for an interview.

[^ 9] For additional information on primary and secondary evidence for USCIS benefit requests, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].

[^ 10] See 8 CFR 204.1(f) and 8 CFR 204.1(g)(1) for primary evidence to demonstrate U.S. citizenship or LPR status. See 8 CFR 204.2 for primary evidence to establish a qualifying relationship. See 8 CFR 103.2(b).

[^ 11] See 8 CFR 204.1(f)(1). For additional information on primary and secondary evidence, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section B, Primary and Secondary Evidence [1 PM-USCIS E.6(B)].

[^ 12] See 8 CFR 103.2(b)(2)(i). For additional information on affidavits, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section B, Primary and Secondary Evidence [1 PM-USCIS E.6(B)].