"Birth certificate" versus Notarial birth certificate

[mungbeans]

My wife was born at home and not in a hospital and thus never had a birth certificate, however she has recently obtained a Notarial birth certificate.

 

Her green card application to the US is being handled by a US immigration lawyer who says the Notarial birth certificate is not enough and she must also get an unavailability statement.

 

Is this correct, I thought the unavailability statement is required is a notarial birth certificate can't be obtained?

 

If its correct then where can an unavailability statement be obtained from?

 

Thanks

[dnoblett]

Is the lawyer really familiar with the US Consulate in Guangzhou???

 

I have yet to see any posts where USCIS, NVC or the Consulate reject the Notarial Certificate of birth, it is based on the parent's household book, and is accepted by the consulate.

 

The only time they would need an unavailable statement would be if there is no way to get a Notarial Certificate, for example: http://candleforlove.com/forums/topic/46423-birth-certificate-unobtainable/

[mungbeans]

Is the lawyer really familiar with the US Consulate in Guangzhou???

 

I have yet to see any posts where USCIS, NVC or the Consulate reject the Notarial Certificate of birth, it is based on the parent's household book, and is accepted by the consulate.

 

The only time they would need an unavailable statement would be if there is no way to get a Notarial Certificate, for example: http://candleforlove.com/forums/topic/46423-birth-certificate-unobtainable/

 

 

Thanks. Do you know of any official US government link stating under what circumstances an unavailability certificate is needed and when its not needed?

 

Otherwise its difficult for me to argue with the lawyer when she has the background and I don't, I can't send her links on forums as a way saying to her one isn't necessary, its not authoratative.

 

Assuming one is necessary, or even if its not necessary in order get one to be safe, where can an unavailability statement be obtained from?

[mungbeans]

There's a quote taken from a US web site in that link you posted that says this:

 

 

If your birth record is not obtainable for any reason, a certified statement must be obtained from the appropriate government authority explaining why your birth record is unavailable. You must also submit secondary evidence such as:

• A baptismal certificate that contains the date and place of birth, as well as both parents names (providing the baptism took place shortly after birth)
• An adoption decree for an adopted child
• An affidavit from a close relative, preferably your mother, stating the date and place of birth, both parents names, and your mother’s maiden name.

Note: An affidavit executed before an official authorized to take oaths or affirmations must also be provided.

So what is the definition of "birth record"? If its a birth certificate issued at birth then isn't the lawyer correct in saying the non availability certificate is required?

[dnoblett]

 

Is the lawyer really familiar with the US Consulate in Guangzhou???

 

I have yet to see any posts where USCIS, NVC or the Consulate reject the Notarial Certificate of birth, it is based on the parent's household book, and is accepted by the consulate.

 

The only time they would need an unavailable statement would be if there is no way to get a Notarial Certificate, for example: http://candleforlove.com/forums/topic/46423-birth-certificate-unobtainable/

 

 

Thanks. Do you know of any official US government link stating under what circumstances an unavailability certificate is needed and when its not needed?

 

Otherwise its difficult for me to argue with the lawyer when she has the background and I don't, I can't send her links on forums as a way saying to her one isn't necessary, its not authoratative.

 

Assuming one is necessary, or even if its not necessary in order get one to be safe, where can an unavailability statement be obtained from?

 

Department of state:

 

 

Birth Certificates:

 

Available in the form of notarial certificates, which are secondary evidence. Notarial certificates of birth (Chu Sheng Gong Zheng Shu or Chu Sheng Zheng Ming Shu) for persons living in or recently departed from China are generally reliable, but are best used in conjunction with other evidence. They are most often based upon an AHHR, (Household Record) which is easily susceptible to fraud, especially in villages. Notarial birth certificates for persons long departed from China are most likely based merely upon the testimony of interested parties.

 

While some notarial birth certificates will list stepparents or adoptive parents along with natural parents, this is not always the case. In some cases, the certificates will list only the natural parents, covering up an adoption.

 

Some applicants will present notarial certificates of relationship (Guan Xi Gong Zheng [or Zheng Ming] Shu) in lieu of notarial birth certificates. These certificates of relationship are unreliable and tend to be based solely upon the testimony of interested parties. Notarial birth certificates should be required. Care should be taken with any certificate that lists step relationships. These relationships are as of the date of issuance of the certificate only. Marriage certificates should also be required.

 

http://travel.state.gov/content/visas/english/fees/reciprocity-by-country/CH.html

 

In China, the notary office is much like, county records office, the Notarial Birth Cert IS the Birth Cert.

[mungbeans]

Would you believe the lawyer sent me that very same link before we obtained the notarial birth certificate. Yet is still saying the certificate of non availability is needed.

[dnoblett]

Your lawyer is wrong, the Notarial cert is what my wife, and every one else on this board got for their spouse, children, fiancées, etc, it IS the standard birth cert, throughout China.

 

It is the same thing as me going toy county health department, and getting a certified copy of my birth cert. The notary offices in China serve this function.

 

If your lawyer does not understand this, what else do the not understand? I for one would be considering ditching the lawyer and doing the petition on my own. This is not hard, you have vested interest in this, the lawyer is just filling in forms, getting evidence and documents from you and sending to USCIS for you, there is nothing a lawyer can do to make the process faster, or guarantee sucess.

[mungbeans]

The lawyer is used by the company that I am an employee of and they deal with all the immigration issues for the company's employees that need visas etc. (the lawyer is not an employee of my company, she is just hired by them but she has been doing it for them for several years).

 

Therefore I can't simply ditch the lawyer as its not me who has hired her to deal with my wife's green card application.

 

So I'm trying to educate myself as much as possible, and find good definitive *official* sources of information to show to the lawyer in a diplomatic way in order for her to realize she is wrong.

 

This forum and your and other people's input is very valuable, and though it might be 100% accurate, I can't go to the lawyer and say "You're wrong because some people in an internet forum say so". Can you see the sort of a predicament I'm in?

Edited February 21, 2014 by mungbeans (see edit history)

[Randy W]

The lawyer is used by the company that I am an employee of and they deal with all the immigration issues for the company's employees that need visas etc. (the lawyer is not an employee of my company, she is just hired by them but she has been doing it for them for several years).

 

Therefore I can't simply ditch the lawyer as its not me who has hired her to deal with my wife's green card application.

 

So I'm trying to educate myself as much as possible, and find good definitive *official* sources of information to show to the lawyer in a diplomatic way in order for her to realize she is wrong.

 

This forum and your and other people's input is very valuable, and though it might be 100% accurate, I can't go to the lawyer and say "You're wrong because some people in an internet forum say so". Can you see the sort of a predicament I'm in?

 

 

Yes, you're in a predicament. The Dept. of State link specifies EXACTLY what is needed - the birth certificate in the form of the notarial certificate of birth.

 

No unavailability certificate is possible, since the birth certificate IS available

 

I would try to subtly talk about potential legal action against the lawyer if she fails to follow through with her duties.

 

On the other hand, why wouldn't you ditch the lawyer? Seems like that's WAY too much of price to pay for her services.

 

Like Dan said, this is NOT a question of an "original certificate" not being available - this IS the birth certificate which is issued by the Chinese authorities for use abroad.

Edited February 21, 2014 by Randy W (see edit history)

[mungbeans]

Thank you for the reply.

 

What sort of birth documentation do people get who are born in China nowadays?

 

In the dept of state web site it says:

 

"Birth certificate ...available in the form of notarial certificates, which are secondary evidence." and "...The certificates can be based upon primary evidence"

 

If notarial birth certificates are secondary evidence, I was therefore curious what is primary evidence?

[mungbeans]

Thanks for people's replies, but I'm still confused by something.

 

On here and other forums people say the Notarial Birth Certificate IS the birth certificate, yet there are also many posting on other web sites talking about an original birth certificate AND a notarial birth certificate as two separate things (here's just on example http://www.thebeijinger.com/forum/2008/12/01/where-get-certified-copy-chinese-birth-certificate

 

This is contradictory - a NBC cannot BE the birth certificate on one hand and yet separate from the original birth certificate on the other? That's why I'm confused. Why do other forums mention an original birth certificate AND an notarial birth certificate?

Edited February 21, 2014 by Randy W
fixed link (see edit history)

[Randy W]

Thanks for people's replies, but I'm still confused by something.

 

On here and other forums people say the Notarial Birth Certificate IS the birth certificate, yet there are also many posting on other web sites talking about an original birth certificate AND a notarial birth certificate as two separate things (here's just on example http://www.thebeijinger.com/forum/2008/12/01/where-get-certified-copy-chinese-birth-certificate

 

This is contradictory - a NBC cannot BE the birth certificate on one hand and yet separate from the original birth certificate on the other? That's why I'm confused. Why do other forums mention an original birth certificate AND an notarial birth certificate?

 

 

What is referred to as the "original birth certificate" may be 'the piece of paper issued at the time of birth in the form of the "medical certificate of birth or the verification record"'. This is NOT valid for use as a certified birth certificate. An "original birth certificate" may be helpful, in some cases, in obtaining the notarial birth certificate, but would NOT be acceptable for a visa application.

 

Determining what piece of paper someone else may have in their possession is an exercise in futility. Suffice to say that a CURRENT notarial birth certificate issued by the Gong Zheng Chu is EXACTLY the documentation that you need for your visa application.

 

The official records are kept both at the Gong Zheng Chu and in the hukou booklet. There is no such thing as "THE birth certificate", or, in most cases, even an "original birth certificate".

 

The link you gave didn't work, but I believe I found it here - http://www.thebeijinger.com/forum/2008/12/01/where-get-certified-copy-chinese-birth-certificate (you had included ")." on your link). Anyway, by one of your own links -

The green official birth certificate was introduced country-wide in 1996 based on the Law of the Peoples Republic of China on Maternal and Infant Health Care. It is the official birth [certificate] accepted by the Public Security Bureau as medical evidence for household registration for [a] new-born baby, and as the medical evidence for a new-born baby to be granted nationality.

 

but that applies ONLY to those born after 1996.

Edited February 21, 2014 by Randy W
fix link (see edit history)

[Randy W]

Thank you for the reply.

 

What sort of birth documentation do people get who are born in China nowadays?

 

In the dept of state web site it says:

 

"Birth certificate ...available in the form of notarial certificates, which are secondary evidence." and "...The certificates can be based upon primary evidence"

 

If notarial birth certificates are secondary evidence, I was therefore curious what is primary evidence?

 

 

 

 

from http://www.lib.umd.edu/tl/guides/primary-sources

Primary sources are original materials. They are from the time period involved and have not been filtered through interpretation or evaluation. Primary sources are original materials on which other research is based

 

These, for most of our spouses, DON'T EXIST. Even where they DO exist, they are unlikely to be useful as legal documentation for anyone born before 1996, and are DEFINITELY not useful for immigration purposes.

 

You may find that it will be easier to simply put together your Petition for an Immediate Relative yourself, rather than to continue trying to educate your lawyer on the birth certificate practices in China.

 

The State Dept and, in particular, the visa officers at the consulate in Guangzhou, are well aware of what to expect from a Chinese applicant.

[Randy W]

Neither you, your lawyer, or the State Dept can dictate to the Chinese authorities what form the "birth certificate" can take.

 

The Chinese authorities issue a "notarial certification of birth for use abroad" according to their own interpretation of international standards. The Dept. of State recognizes this for what it is.

[Randy W]

If you are REALLY, REALLY determined to work with the lawyer, perhaps you can get her to draft some sort of statement to the effect that "this was the best I could do - please let us know if anything further is required". DO NOT sign anything which states that the birth certificate is "unavailable".