When a foreign national is applying for permanent residence in the US, whether through consular processing or through adjustment of status in the US, a copy (and original) of the foreign national’s birth certificate is generally required.

We list this document on our document checklists, and clients often say things like:

I don’t have my birth certificate so I’ll submit my school leaving certificate instead. Is that okay?
It will take along time for me to get my birth certificate, so I’ll submit my household record instead.

Our response: It depends, but probably not.

Filing Requirements – Are you sure we need this?

If you are filing an adjustment of status (I-485), the birth certificate is specifically listed as initial evidence for the I-485 filing. If you do not include it, that will hold up the processing of your I-485, the issuance of the work permit/travel document, and ultimately the green card. Likewise, when you apply for an immigrant visa through consular processing, the birth certificate is a key requirement.

When it comes to U.S. immigration, the Department of State reciprocity table is the source that will tell us whether a birth certificate is available in your country, and what specific document is required, including the title and source of the document. We certainly understand that in other countries other types of documents are more important to establish your birth. We also understand that in some countries birth certificates simply are not available. However, if the reciprocity table says that a birth certificate (or similar document) is available, you generally must include that as part of the green card application process.

What if I can’t get my birth certificate?

If the reciprocity table indicates that a birth certificate is not available, you will still need to submit secondary evidence of your birth, parents, etc.

If the reciprocity table says that birth certificates are available for your country but you cannot obtain the birth certificate, you may be able to submit secondary evidence instead. However you must still show that you have tried to obtain a birth certificate and document that one was not available. This is typically called a Certificate of Non-Availability and can be issued by the local authority that issues birth, death, and marriage certificates. Your country's reciprocity table will list any specific offices that can handle this request on your behalf.

General secondary evidence, depending on your country's requirements, can include:

1. School records/leaving certificate that demonstrates your date of birth
2. Baptismal certificate from a church
3. Notarized affidavits from witness(es) present during your birth. This can be family members such as an aunt, uncle, grandparent, or a neighbor or friend, or another third-party who has first-hand knowledge of your birth.

The regulatory authority for this information is located at 8 CFR 103.2(b)(2):

2) Submitting secondary evidence and affidavits .

(i) General . The non-existence or other unavailability of required evidence creates a presumption of ineligibility. If a required document, such as a birth or marriage certificate, does not exist or cannot be obtained, an applicant or petitioner must demonstrate this and submit secondary evidence, such as church or school records, pertinent to the facts at issue. If secondary evidence also does not exist or cannot be obtained, the applicant or petitioner must demonstrate the unavailability of both the required document and relevant secondary evidence, and 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. Secondary evidence must overcome the unavailability of primary evidence, and affidavits must overcome the unavailability of both primary and secondary evidence.

(ii) Demonstrating that a record is not available . Where a record does not exist, the applicant or petitioner must submit an original written statement on government letterhead establishing this from the relevant government or other authority. The statement must indicate the reason the record does not exist, and indicate whether similar records for the time and place are available. However, a certification from an appropriate foreign government that a document does not exist is not required where the Department of State's Foreign Affairs Manual indicates this type of document generally does not exist. An applicant or petitioner who has not been able to acquire the necessary document or statement from the relevant foreign authority may submit evidence that repeated good faith attempts were made to obtain the required document or statement. However, where USCIS finds that such documents or statements are generally available, it may require that the applicant or petitioner submit the required document or statement.(Amended effective 6/18/07; 72 FR 19100 )

We understand that obtaining the birth certificate can be an inconvenience, and we wish it were easier, but unfortunately we’re not able to control the government regulations or requirements. We make every effort to notify clients of the required documentation for their filing upfront so they know what they need to gather. If you have questions about the birth certificate or other requirements for the green card filing, you must consult with a qualified immigration attorney as this can affect the outcome of your case. We are happy to assist.

If you need assistance filing an employment-based or family-based immigration filing, please contact our office at info@sumnerimmigration.com or at 804-396-3412.