Our office, as well as some of our attorney colleagues, have recently received USCIS Requests for Evidence that ask for evidence beyond the scope of what is required. This is happening particularly with respect to I-130 family cases, specifically USC children filing for their parents. In general, for a US Citizen to sponsor his/her parent, he/she must establish that they are biologically related (unless there is a step-parent relationship or adoption situation). In cases where children are born out of wedlock and filing for their fathers, additional documentation is required: that is, either evidence that the child was legitimated under the law of the child’s or parent’s residence or domicile, before the age of eighteen; or proof that a bona-fide relationship between the parties existed before the child’s reaching the age of twenty-one. This may include but is not limited to proof that the parent lived with the child, supported him/her, or otherwise demonstrated a continuing parental interest in the child’s welfare.
But note that this applies in the case where a USC Child petitioner, born out of wedlock, is petitioning for his/her father. USCIS either appears to be misinterpreting or plainly disregarding the caselaw by issuing requests for evidence for this type of evidence even when the child was born to parents who were married prior to the birth. In such cases, a birth certificate evidencing parentage and the parents’ marriage certificate should normally establish the requisite relationship. Absent reason to suspect that the parties are not related, USCIS should not be requiring additional evidence of this nature. Such a practice is ultra vires and contrary to established caselaw as well as the agency’s own I-130 instructions. This inappropriate practice not only hinders case processing but places an unnecessary, onerous responsibility on the petitioner to furnish something that should not be required in the first place.
If you have received a Request for Evidence for this type of evidence, our office may be able to assist you in replying. The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.