Declaration Under Penalty of Perjury

A Declaration Under Penalty of Perjury in the United States confirms the declared information and the maker's responsibility for its accuracy.

The statutory authority for unsworn declarations is 28 U.S.C. § 1746, enacted as part of the Revised Statutes and codified in Title 28 of the United States Code. The statute requires specific certification language immediately before the declarant's signature: for declarations executed within the United States, the language must be "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on [date]." For declarations executed outside the United States, the statute requires the additional phrase "under the laws of the United States of America." Deviation from this language — even slight variations — can render the declaration legally insufficient.

The criminal penalties for making a false Declaration Under Penalty of Perjury are the same as for perjury under 18 U.S.C. § 1621. Federal perjury is a felony punishable by up to 5 years imprisonment. The penalties under 18 U.S.C. § 1621 expressly extend to false declarations made under 28 U.S.C. § 1746, because 18 U.S.C. § 1621 covers declarations "as permitted under section 1746 of title 28." Additionally, false statements in federal agency matters — including immigration forms, federal benefit applications, and tax filings — are separately criminalized under 18 U.S.C. § 1001, carrying penalties of up to 5 years imprisonment (8 years for terrorism-related matters).

The Declaration Under Penalty of Perjury differs from a notarized Affidavit in procedure but not in substantive legal effect for federal purposes. An Affidavit requires the declarant to appear before a notary public or other officer authorized to administer oaths, who verifies the declarant's identity, administers the oath, and certifies the signature. A Declaration Under Penalty of Perjury requires none of these formalities — the declarant signs the document with the statutory certification language, and the criminal penalties of perjury law serve as the equivalent of the oath. For state court proceedings, whether an unsworn declaration has the same effect as a notarized affidavit depends on whether the state has enacted an equivalent statute; many states have adopted provisions modeled on the Uniform Unsworn Foreign Declarations Act or analogous state statutes.

US Citizenship and Immigration Services (USCIS) accepts unsworn declarations under penalty of perjury on most immigration forms, including Form I-130 (Petition for Alien Relative), Form I-485 (Application to Register Permanent Residence), and Form I-864 (Affidavit of Support). The US Bankruptcy Court system requires debtors to sign their bankruptcy schedules, statements of financial affairs, and related documents under penalty of perjury under 28 U.S.C. § 1746 and 18 U.S.C. § 152.

A US Declaration Under Penalty of Perjury is needed any time a person must submit a sworn statement for a federal legal proceeding, federal agency matter, or any context where 28 U.S.C. § 1746 permits an unsworn declaration as a substitute for a notarized affidavit.

In federal civil litigation, Declarations Under Penalty of Perjury are the standard vehicle for submitting factual support for motions. Federal Rule of Civil Procedure 56(c)(4) requires that declarations submitted in support of or opposition to summary judgment motions be made on personal knowledge, set out facts admissible in evidence, and show the declarant's competence to testify. All US federal district courts — from the Southern District of New York to the Central District of California to the Northern District of Texas — accept declarations under 28 U.S.C. § 1746 in lieu of notarized affidavits for all motion practice.

In immigration proceedings before USCIS and the US Department of State, declarations are required on many petition and application forms. The Form I-864 Affidavit of Support — required for family-based and certain employment-based immigration petitions — is signed under penalty of perjury and creates a legally binding obligation on the sponsor to maintain the immigrant at 125% of the federal poverty level. Form I-9 (Employment Eligibility Verification) requires both the employee and the employer representative to attest to the accuracy of the information under penalty of perjury under 8 U.S.C. § 1324a.

In federal bankruptcy proceedings, the Official Forms promulgated by the Judicial Conference of the United States require debtors to verify their bankruptcy schedules, statements of financial affairs, and other filings under penalty of perjury. A false statement in a bankruptcy filing is a federal crime under 18 U.S.C. § 152, separate from the general perjury statute.

For self-represented (pro se) litigants in federal court, a Declaration Under Penalty of Perjury is often more practical than a notarized affidavit because it requires no appointment with a notary, no notarization fee, and can be signed at home. The Administrative Office of the US Courts provides guidance for pro se litigants on the proper use of declarations in civil proceedings.

In California state court proceedings, Code of Civil Procedure § 2015.5 provides that an unsworn declaration made under penalty of perjury, executed in California, has the same force and effect as a sworn affidavit — making California one of the most permissive states for unsworn declarations. Similar statutes exist in many other states, though the exact requirements vary.

A valid US Declaration Under Penalty of Perjury must contain specific elements required by 28 U.S.C. § 1746 and applicable federal court rules to be accepted by federal courts, agencies, and other recipients.

The caption and identification section, for declarations submitted in court proceedings, mirrors the caption of the underlying case: the court name, case name, case number, and the title of the declaration (e.g., "Declaration of Jane Smith in Support of Plaintiff's Motion for Summary Judgment"). For declarations submitted to federal agencies — USCIS, SSA, IRS, VA — the header identifies the form number, applicant or petitioner name, and file number.

The introductory paragraph identifies the declarant by full legal name, states their relationship to the case or matter (e.g., plaintiff, defendant, employee, expert witness, agent for the applicant), and states the basis for the declarant's knowledge of the facts set forth in the declaration. Federal Rule of Civil Procedure 56(c)(4) requires that summary judgment declarations be based on personal knowledge — meaning the declarant directly observed the facts or has firsthand information, not secondhand reports. Declarations based on "information and belief" (hearsay) are generally insufficient to support summary judgment.

The substantive statements section presents the facts the declarant is attesting to, organized in numbered paragraphs for easy reference by the court or agency. Each paragraph should contain one discrete factual assertion. Legal conclusions, arguments, and characterizations of law are inappropriate in a declaration — these belong in the brief or memorandum of law that the declaration supports. Exhibits referenced in the declaration (contracts, emails, photographs, business records) must be attached and identified as Exhibit A, B, C, etc., with each exhibit authenticated in the declaration by a statement that the declarant personally recognizes and can authenticate the exhibit.

The certification language is the critical element that distinguishes a Declaration Under Penalty of Perjury from an ordinary statement or letter. Under 28 U.S.C. § 1746(2), the certification for declarations executed within the United States must read: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct." Immediately following this language must appear: "Executed on [full date]." The declarant's original signature must follow. Federal courts in the Second Circuit (New York), Ninth Circuit (California, Washington), Fifth Circuit (Texas, Louisiana), and other circuits have consistently enforced the requirement for the statutory certification language and rejected declarations that omit or materially alter it.

The signature block includes the declarant's printed name, the date of execution, and the city and state where the declaration is executed. For declarations executed outside the United States, the additional phrase "under the laws of the United States of America" must be added to the certification language per 28 U.S.C. § 1746(1). Unlike notarized affidavits, no witness, notary, or acknowledgment block is required — the statutory certification language and the declarant's original signature complete the document.