Best Practices When Filing I-730 and Addressing RFEs
Prior to filing I-730
✓ Review previously submitted application – Obtaining and reviewing a copy of the I-590
(refugee application), I-589 (asylee application), and I-485 (adjustment application), if one
was filed, informs a legal representative as to what family members were included on
previous applications. At the very least, ask the refugee or asylee to list the relatives that
were listed on these forms. If a refugee or asylee seeks to file an I-730 for a family member
not listed on the I-589, I-590, or I-485, inquire further. Below is a list of considerations to
make before deciding to take on the representation.
o Risk - Will the missing relative be interpreted as a misrepresentation and put the
refugee or asylee status at risk? One reason a relative may have been left off of the
asylum application was because listing that relative could have negated the
persecution claim. It could also be that listing a certain relative may cause the
principal to be inadmissible. Think about the terrorist-related inadmissibility ground
that makes some relatives inadmissible for another relative’s actions. See INA
§212(a)(3)(b)(i)(IX).
o Valid Reason - Was there a valid reason for the relative not being listed on previous
applications? The marriage creating the relationship may have taken place after the
refugee interview and after the refugee application was signed. This would not
prevent the derivative spouse from coming the US so long as the relationship existed
when the refugee was admitted to the US1, but would be best explained when filing
an initial I-730. Perhaps a child was missing or thought to be deceased or the refugee
or asylee understood that only family members who were currently living with them
had to be listed.
o USCIS Error – Did the refugee or asylee actually list the relative on the previous
applications, but due to an administrative error, the relative is not listed? Ask the
client what relatives were listed on the form and review the form against the client’s
answer. The relative may have been listed on an addendum that USCIS lost or
misplaced.
✓ Principal v. Derivative – Only principal refugees or aylees can file an I-730 for a spouse and
unmarried child under 21 years old. Review the I-94 or asylum decision to determine if the
individual is a principal or derivative refugee or asylee.
✓ Connect the names – USCIS will make a decision on the I-730 based on supporting
documents that are submitted. Before filing a petition, review the names on the birth
certificates, marriage certificates, and divorce certificates. Make sure the names are spelled
consistently on each document and that a connection can be made to either or both the
beneficiary and petitioner based on the documents. If a child beneficiary lists the mother’s
name differently on the birth certificate than what was on her I-94 and other documents, it is
1
8 CFR 207.7(c).
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Best Practices When Filing I-730 and Addressing RFEs
best to submit a corrected birth certificate. It is also possible to offer a plausible explanation
for an incorrect name.
✓ Verify petitioner is not a US citizen – US citizens cannot file an I-730, instead they will file
an I-130.
✓ Determine if child beneficiary was born out-of-wedlock – If a child beneficiary is born outof-wedlock and the mother is the petitioner, then no additional evidence needs to be
submitted besides a birth certificate issued by civil authorities to prove the parent-child
relationship per 8 CFR §204.2(d)(2)(iii). However, if the father files an I-730 for a child
born out-of-wedlock, then he must submit evidence to prove the parent-child relationship as
per the same regulation if the child is not legitimated. A child may be legitimated through
the marriage of the natural parents, by the laws of the country or state of child’s residence, or
by the laws of the country or state of the father’s residence. 8 CFR §204.2(d)(2)(ii). If unable
to locate legitimation laws of other countries, e-mail a librarian at the Law Library of
Congress at http://www.loc.gov/rr/askalib/ask-law2.html to request of copy of the law. A
legitimated child does not have to prove the parent-child relationship, but the father will have
to prove that legitimation occurred before the child turned 18 years old. Id.
✓ Remember the 2 year filing deadline – The I-730 must be filed within 2 years of either the
refugee’s admission to the US or the asylee’s grant of asylum. The 2 year filing deadline
may be waived by USCIS for humanitarian reasons. 8 CFR §§207.7(d), 208.21(c), 208.21(d).
There is not an exhaustive list of humanitarian reasons that USCIS will accept to waive the 2
year filing deadline. Whatever the humanitarian reason may be make sure it is well
documented and fully explained so that the USCIS officer adjudicating the petition has a
clear understanding of the gravity of the circumstances.
✓ Avoid an RFE – If the petitioner cannot obtain documents or there is reason to believe that
something within the I-730 may trigger an RFE, try to tackle that issue head on and avoid the
RFE. Submit a statement from the petitioner explaining why the document is unavailable or
point out any deficiency and explain why it will not prohibit the I-730 from being approved.
Responding to I-730 RFEs
✓ Scrutinize the RFE – An RFE may make requests for documents that were already submitted
or do not need to be submitted. Do not be intimidated. Reference any documents that were
previously submitted, but also include another copy in response to the RFE. If the document
does not need to be submitted, cite the appropriate regulation and make an argument as to
why that document is not required. If a document is requested that the petitioner cannot
produce, explain why the document is not available and offer a statement from the petitioner.
✓ Know the INA and regulations – Become familiar with the INA and regulations because
these tools become the arsenal for arguments. Below is a brief listing of INA sections and
regulations that may be helpful when responding to RFEs.
o Relationships – The INA and regulations listed below summarizes who can petition
for what family members.
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Best Practices When Filing I-730 and Addressing RFEs
▪
Refugees – INA §207(c)(2)(A) & 8 CFR §207.7(a) allow a principal refugee
to file an I-730 for spouse, biological children, stepchildren, illegitimate
children, legitimate children, and adopted children.
▪
Asylees – INA §208(b)(3) & 8 CFR §208.21(a) allow a principal asylee to file
an I-730 for spouse, biological children, stepchildren, illegitimate children,
legitimate children, and adopted children.
▪
Spouse - INA §101(a)(35) defines marriage by what it is not and explains that
if the marriage is a proxy marriage then it must be consummated to be valid
for US immigration purposes. It does not require certain rites and rituals to be
performed for a marriage to be valid. For legal validity of a marriage, if a
marriage is valid where it took place, then it is valid everywhere unless it goes
against U.S. public policy, like polygamy.
▪
Biological Children - INA §101(b)(1)(A) defines biological children as under
21 years old, unmarried and born in wedlock.
▪
Stepchild - INA §101(b)(1)(B) defines stepchild as under 21 years old,
unmarried, and being under 18 years old when the marriage occurred creating
the stepchild relationship.
▪
Legitimated Child - INA §101(b)(1)(C) defines legitimated child (born out of
wedlock and later legitimated) as under 21 years old, unmarried, and
legitimated under the law of the child’s residence or domicile or the law of
father’s residence or domicile whether in or outside of the US, if the
legitimation takes place before the child is 18 years old and the child is in the
legal custody of the parent or parents at the time of legitimation.
▪
Illegitimate Child - INA §101(b)(1)(D) defines illegitimate child (born out of
wedlock and not legitimated) as under 21 years old, unmarried, and seeking a
benefit based on relationship to natural mother or natural father, but if the
father is the petitioner, he has to have or have had a bona fide parent-child
relationship with the illegitimate child whereas the natural mother does not
need to show a bona fide relationship.
▪
Adopted Child - INA §101(b)(1)(E)(i) defines adopted child as under 21
years old, unmarried and, who while under 16 years old, having or having had
been in the legal custody and resided with the adopting parents for at least 2
years.
▪
Adopted Child’s Sibling - INA §101(b)(1)(E)(ii) defines adopted child’s
sibling as under 21 years old, unmarried, and the natural sibling of an adopted
child described above or an orphaned child defined in INA §101(b)(1)(F)(i),
being adopted by the same adoptive parent or parents who adopted the sibling
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Best Practices When Filing I-730 and Addressing RFEs
and otherwise meeting the definition of adopted child except that the adoption
took place while the child was under 18 years old.
o Evidence – The regulations outline what evidence may be submitted to prove the
claimed relationship and also when secondary evidence may be submitted in lieu of
primary evidence. Remember to consult the Foreign Affairs Manual’s Reciprocity
Table to determine what documents are available in each country. The FAM’s
Reciprocity Table can be found at
http://travel.state.gov/content/visas/english/fees/reciprocity-by-country.html. The
evidence regulations are key to arguments involving the unavailability of primary
evidence, the use of secondary evidence such as baptismal certificates and affidavits,
and the sufficiency of the evidence meeting the burden of proof.
▪
Preponderance of the Evidence – 8 CFR §207.7(e) (for refugees) and 8 CFR
§208.21(f) (for asylees) provides that the burden of proof is on the petitioner
to establish the claimed relationship by a preponderance of the evidence.
Preponderance of the evidence in short means that the petitioner needs to
prove by a 51% likelihood that the claimed relationship exists. The regulation
cites to several sections in 8 CFR §204.2, which lists the ideal types of
evidence to establish the claimed relationship. However, the ideal types of
evidence are only to be submitted where possible, which allows for secondary
evidence to be submitted.
Secondary Evidence – 8 CFR §204.1(f) explains that primary evidence must
be submitted if available. USCIS will consult the FAM’s Reciprocity Table to
determine if primary evidence is available. If the Reciprocity Table shows
that a document is available, but the petitioner claims it is unavailable, a letter
from the appropriate government agency stating the document is unavailable
will be required before USCIS will accept secondary evidence.
If a petitioner has made repeated attempts to receive a document or statement
from the foreign authority and is unable to obtain it, the petitioner may submit
evidence of those repeated attempts under 8 CFR §103.2(b)(2)(ii). Such
evidence could be an affidavit from the petitioner detailing what attempts
were made to obtain the document or letter.
8 CFR § 204.2(d)(2)(v) contains similar clauses about the FAM’s reciprocity
table, the availability of primary evidence, and when secondary evidence will
be allowed. This regulation can be cited when referencing evidence related to
child and stepchild beneficiaries.
Examples of secondary evidence are baptismal certificates, religious marriage
certificates, customary marriage certificates, school records, medical records,
and affidavits. In general, when submitting an affidavit as secondary evidence,
make sure the affiant was living at the time and has personal knowledge of the
event to which s/he attests. The affidavit must contain the affiant’s full name
and address, date and place of birth, relationship to the parties, if any, and
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Best Practices When Filing I-730 and Addressing RFEs
complete details concerning how the affiant acquired the knowledge of the
event. In addition, the affidavit should be signed under penalty of perjury.
Where possible a notary public should notarize the signature of the affiant.
▪
Evidence of Bona Fide Nature of Marriage – 8 CFR §204.2(a)(2) requires
that the petitioner submits a certificate of marriage issued by civil authorities,
and proof of the legal termination of all previous marriages of both the
petitioner and beneficiary. If these types of documents are not available,
secondary evidence may always be submitted to prove the relationship. In
some cultures, a customary marriage or divorce may occur and a certificate is
not issued.
In addition to the above cited regulation, 8 CFR §204.2(a)(1)(i)(B) and 8 CFR
§204.2(a)(1)(iii)(B) relate to establishing the bona fide nature of the marriage.
When combining these regulations with 8 CFR §207.7(e) or 8 CFR 208.21(f),
the evidence to submit where possible to establish a marital relationship
would be documentation showing joint ownership of property, a lease
showing joint tenancy of the same residence, documentation showing
commingling of funds, birth certificates of common children, affidavits from
third parties having knowledge of the bona fides of the marital relationship,2
and any other pertinent documentation. Since the regulations allow any other
type of documentation to prove the marital relationship, be creative. Joint
magazine subscriptions or gym memberships, holiday cards addressed to both
spouses, letters exchanged, and phone bills showing the spouses called each
other may all be submitted to prove the bona fide nature of the marriage.
▪
Primary Evidence of Legitimate Biological Child Born – 8 CFR
§204.2(d)(2)(i) explains that a birth certificate is sufficient to establish a
claimed relationship between a biological mother and legitimate child.
Evidence of name change must be provided if the mother’s name on the
petition is different from the one on the birth certificate. This evidence could
be a marriage certificate showing the mother is now using her marital name or
a court document showing her name changed.
To prove a legitimate biological child-father relationship under 8 CFR
§204.2(d)(2)(i), the father must submit the child’s birth certificate, the
marriage certificate showing he is married to the child’s mother, proof of any
name change, and proof of termination of all previous marriages for both
natural mother and natural father.
▪
Primary Evidence for a Legitimated Child – 8 CFR §204.2(d)(2)(ii)
outlines the primary evidence that must be submitted for a child who was born
2
Affidavits must be sworn to or affirmed by people who have personal knowledge of the marital relationship. Each
affidavit must contain the full name and address, date and place of birth of the person making the affidavit and his or
her relationship to the spouses, if any. The affidavit must contain complete information and details explaining how
the person acquired his or her knowledge of the marriage. See 8 CFR §§204.2(a)(1)(i)(B)(5), 204.2(a)(1)(iii)(B)(5).
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Best Practices When Filing I-730 and Addressing RFEs
out of wedlock, but was later legitimated. This regulation only applies to
child-father relationships, not to child-mother relationships. Legitimation
must occur before the child is 18 years old and can occur in three ways: 1. the
biological parents of the child marry, 2. the child is legitimated according to
the laws of the country or state where the child resides or is domiciled, or 3.
the child is legitimated according the laws of the country or state where the
father resides or is domiciled. The primary evidence will consist of the child’s
birth certificate and either the parent’s marriage certificate or other evidence
of legitimation based on the law of the child or father’s residence or domicile,
such as a court decree or formal acknowledgement or recognition of paternity.
▪
Primary Evidence for an Illegitimate Child – 8 CFR §204.2(d)(2)(iii) lists
the primary evidence required when a parent files an I-730 for an illegitimate
child. When a mother petitions for her illegitimate child, there is no
additional documents needed than what is required to prove the biological
relationship and she does not need to prove a bona fide relationship to the
child. For the father, however, he must show that he is the natural father and
that a bona fide parent-child relationship was established before the child
turns 21 years old.
USCIS looks for proof that “the father demonstrates or has demonstrated an
active concern for the child’s support, instruction, and general welfare.” Id.
To prove the bona fide relationship there needs to be more than merely a
biological relationship. The father should submit proof that he lived with the
child if possible or proof of financial support. The regulation lists out the
following types of evidence that would suffice to prove the bona fide
relationship: money order receipts or cancelled checks showing the father’s
financial support; the father’s income tax returns listing the child; the father’s
medical or insurance records listing the child as a beneficiary; schools records
for the child; correspondence between the father and child; and notarized
affidavits of friends, neighbors, school officials, or others having knowledge
about the relationship.
▪
Primary Evidence for a Stepchild – 8 CFR §204.2(d)(2)(iv) lists the
following evidence that must be submitted to support a petition for a
stepchild: stepchild’s birth certificate issued by civil authorities showing the
beneficiary’s natural parent to whom the petitioner married, a marriage
certificate issued by civil authorities showing that the petitioner and the
beneficiary’s natural parent were married before the beneficiary turned 18
years old, and evidence of termination of any prior marriages for the petitioner
and beneficiary’s natural parent.
▪
Primary Evidence for an Adoptive Child – 8 CFR §204.2(d)(2)(vii)
explains that an adoption decree issued by civil authorities must accompany
the petition. The adoption decree may be used to show two years of legal
custody or a court or other recognized governmental entity’s official custody
award documents may be submitted if custody was awarded before the
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Best Practices When Filing I-730 and Addressing RFEs
adoption. 8 CFR §204.2(d)(2)(vii)(A). To show that the adopted child resided
with the petitioner, USCIS will look to evidence showing parent control as
well such as evidence the adoptive parent owns or maintains the property
where the adopted child resides, provides financial support, and day-to-day
supervision. If the adoptive parent, natural parent, and adopted child all live in
the same household the burden is on the petitioner to show that s/he exercised
primary parental control during that period of residence. 8 CFR
§204.2(d)(2)(vii)(B).
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