Affidavits as Tertiary Evidence at USCIS

The August 5, 2026 policy alert that let officers deny filings without an RFE carried a second change that has drawn far less attention and will reshape more filings. USCIS now describes affidavits as tertiary evidence. Not an alternative form of proof sitting beside documents, but a third tier below them, reached only after the first two have been exhausted and that exhaustion has been documented.

For practices built on declarations, and most humanitarian and family-based work is, this reorders the package before it reorders the argument.

What Tertiary Actually Means Here

The revised Chapter 6 of the USCIS Policy Manual sets out a ladder, and each rung has to be cleared before you reach the next:

• Primary evidence is the civil document that directly establishes the fact: the birth certificate, the marriage certificate, the divorce decree.
• Secondary evidence becomes available only once you have shown the primary document cannot be obtained. Church records, school records, medical records, and similar contemporaneous documents pertaining to the same fact.
• Affidavits come last, and only once you have shown that both primary and secondary evidence are unavailable. Where you reach that rung, the guidance calls for at least two sworn statements on the fact at issue, not one.

The rung that gets skipped is the second one. Firms routinely go from a missing birth certificate straight to a declaration from a relative, because that is faster and because the RFE used to absorb the shortcut. Under the current guidance that jump is a gap in the record, and there may be no request to close it.

The Unavailability Showing You Now Make Up Front

This is the mechanical work that has moved from the RFE response into the initial filing.

The Certificate of Non-Existence

To establish that a required primary document is unavailable, the filing should include a certification of non-existence from the appropriate civil authority. It has to be an original written statement, on official government letterhead, that establishes the document does not exist or cannot be obtained, states the reason, and indicates whether similar records for that time and place are available. A generic letter that says only that the record was not found does not do the job.

When the Reciprocity Schedule Does the Work for You

You do not always need that certificate. Where the Department of State's Visa Reciprocity and Civil Documents by Country schedule indicates that the document type generally does not exist in that country, certification is not required. Officers are directed to consult the schedule before issuing a request for a missing document. Check it before you chase a certificate that no authority will issue, and cite it in the filing so the officer does not have to go looking.

When the Certificate Cannot Be Obtained

Where the civil authority will not produce a letter, the filing can instead document repeated good faith attempts to obtain the record. Good faith here means a paper trail: dated requests, the channels used, the responses or the silence. An assertion in a cover letter that the family tried is not a paper trail.

How Officers Now Weigh a Declaration

Reaching the affidavit rung legitimately is only half of it. The guidance also directs officers to assess each sworn statement on its credibility, reliability, authenticity, level of detail, internal consistency, plausibility, and consistency with other information available to DHS.

Read that list as a drafting brief, because that is what it is. Four of the seven factors are about the text itself and are entirely within your control. The other three are about how the declaration sits against the rest of the record, which is within your control too, as long as someone actually reads the package as a whole before it goes out.

What a Declaration That Survives This Looks Like

• Specific facts, not characterizations. A statement that the couple built a life together is a conclusion. Dates, addresses, who was present, what was said, what it cost, who else can confirm it: those are facts. Conclusory declarations were merely weak before. Now they are the thing an officer points at.
• Explain the gap inside the declaration. The declarant should say why the primary record does not exist and how they know the fact firsthand. A declaration that does not account for its own necessity reads as a substitute rather than a supplement.
• Corroborate every claim you can. Objective records pulled toward the declaration make it heavier: medical records, police reports, school files, employment records, contemporaneous photographs with verifiable context. The declaration should point to them by exhibit number.
• Reconcile across the whole package. Dates, names, addresses, employment periods, and travel history have to match across every declaration and every exhibit. A single contradiction between two family declarations gives an officer a documented, defensible basis to deny without asking a question.
• Fewer, stronger statements. A stack of short, similar letters signals that the record could not be built any other way. Two detailed declarations from people with genuine firsthand knowledge outperform six thin ones.
• Keep the declarant's voice. Declarations that read as though one hand wrote all of them invite questions about authenticity, which is now an express weighing factor.

The Parallel in Removal Proceedings

USCIS is not moving alone. In Matter of G-C-I-, 29 I&N Dec. 176 (BIA 2025), the Board held that an applicant carries the burden to corroborate the material elements of a claim regardless of whether the applicant is found credible, and that a lack of corroboration can independently defeat the burden of proof.

Different adjudicator, different posture, same direction: testimony and sworn statements are no longer sufficient on their own where corroboration could reasonably be expected. If your practice spans both benefits and removal work, the drafting discipline is now the same on both sides.

Where AI Helps, and Where It Does Not

Nothing above is intellectually difficult. It is dense, repetitive, cross-referential work, and it now has to happen on every matter before filing rather than on the subset that draws a request. That is a volume problem.

The judgment stays with you: whether a fact is material, whether a declarant is credible, whether the record is strong enough to file. What can be compressed is the mechanical layer. Drafting a detailed first-pass declaration from case facts and the client's own account. Reading a full document set to find which facts still rest only on sworn statements. Checking dates, names, and addresses for contradictions across a dozen declarations and exhibits, which is exactly the kind of cross-checking a tired human reader misses at 11pm.

This is also where the tool class matters. A consumer chatbot does not know the evidence ladder, cannot see your whole document set at once, and creates a confidentiality problem the moment client facts go into it. Our guides to the best AI tools for immigration lawyers and whether AI is safe for immigration law firms cover the questions to put to any vendor.

Drafty AI was built for this work specifically. Expert Statements drafts declarations that hold the declarant's voice and the level of detail the guidance now demands, the Evidence Analyzer reads an uploaded document set against what the case type requires and surfaces what is still resting on affidavits, and Case Package Prep assembles the filing with the exhibits indexed. It stays attorney-directed throughout, and your data is not used to train models.

The Short Version

Affidavits still work. They just no longer work first. Climb the ladder in order, document each rung you could not reach, and draft declarations specific enough to survive a factor-by-factor read. Firms that keep treating declarations as a shortcut around missing documents will learn the difference through denials rather than requests.

Start with our companion piece on what the no-RFE policy changed about pre-filing review. Then see pricing, or start a free trial and run your next declaration set through a consistency check before it is signed.