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When A Petitioner Seeking To Prove A Family Relationship Files A Birth Certificate That Was Not Registered Contemporaneously With The Birth In Question, USCIS Must Consider The Certificate And All Evidence Of Record Including The Circumstances Of The Case, To Determine Whether The Claimed Relationship Has Been Proven By A Preponderance Of The Evidence.

October 30, 2017 Philip Levin

On September 20, 2017, the Board of Immigration Appeals (BIA or Board), ruled on the appeal of a denied Form I-130, Petition for Alien Relative in a situation where the Service Center Director held that the Beneficiary’s Pakistani birth certificate, registered 2 years after his birth, did not sufficiently prove his parentage and thus could not establish he was the Petitioner’s brother. The Director found that Petitioner had not submitted sufficient secondary evidence to support the delayed registered birth certificate.

Initially, in analyzing the application of the preponderance of the evidence standard, the BIA quoted Matter of E-M-, 20 I&N Dec. 77 (Comm. 1989) for the long-held administrative commandment that “when something is to be established by a preponderance of the evidence it is sufficient that the proof only establish that it is probably true.” Thus, in discussing the necessary primary evidence to be filed to prove a family relationship in visa petition proceedings, the Board noted that – in the instant case – such evidence includes birth certificates showing a common parent, citing to 8 C.F.R § 204.2(g)(2)(i).

Historically, noted the opinion, the BIA has been reluctant to accord delayed birth certificates the same weight as those issued at the time of birth on the theory that delayed certificates are less reliable, i.e., that there is a greater opportunity for fraud. Moreover, the Board has previously held that delayed certificates are generally not conclusive evidence and must be evaluated in light of the other evidence of record and “the circumstances of the case”, stating that it has consistently considered the entire record to determine whether there is sufficient evidence of the claimed relationship. Here, the BIA concluded that, in evaluating whether a birth certificate is “delayed” and thus raises fraud concerns, USCIS must consider all record evidence and the circumstances of the case to determine whether sufficient reliable, persuasive evidence has been filed.

Next, in discussing other acceptable evidence, the Board again cited the regulations (8 C.F.R § 103.2(b)(2)) for the proposition that when an adjudicator determines a birth certificate is “not sufficiently reliable to meet the preponderance of the evidence standard” in light of all the circumstances, he or she should require and consider secondary evidence. Such evidence must be evaluated for authenticity and credibility and a Request for Evidence (RFE), providing detailed guidance regarding acceptable secondary forms of evidence, should be issued if it is not initially submitted. Most persuasive is secondary evidence that was created contemporaneously with the birth.

In the instant case, concluded the opinion, the Petitioner filed the I-130 fifty-two years after the Beneficiary’s birth was registered; unlike situations where the birth is registered right before the petition is filed, here the risk of fraud is greatly reduced. Additionally, noted the BIA, the Director had not considered the U.S. Department of State Foreign Affairs Manual (FAM) comments concerning Pakistani birth certificates: The FAM states that certificates for those born before 1947 are often unavailable and even today are not uniformly kept, particularly in rural areas. As such, the case was remanded to the Director to apply the Board’s framework; if USCIS determines that the birth certificate alone is not sufficiently reliable, it must consider whether, in combination with the secondary evidence submitted, it is sufficient to meet the preponderance of the evidence standard. Matter of Rehman, 27 I&N Dec. 124 (BIA 2017).

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R-1
TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.