28 USC 1746: Unsworn Declarations Under Penalty of Perjury

To substitute an unsworn declaration for a notarized affidavit under federal law, 28 U.S.C. 1746 sets out a short list of requirements for an unsworn declaration: it must be in writing, signed, dated, and contain a statement in substantially the statutory form that the declarant is signing under penalty of perjury. Get any of those pieces wrong and a federal court or agency can refuse to consider what you filed.

The Four Required Elements

The statute replaces notarization with a written promise backed by criminal penalties. To carry that weight, the document has to contain four things.

A written statement. The declaration must be in writing so that a court or agency has a reviewable record to evaluate. The statement should identify who is making it, the facts being asserted, and the basis for the declarant’s knowledge of those facts. Vague or conclusory statements that don’t lay out specific facts are routinely disregarded even when the formatting is correct.

The perjury clause in substantially the statutory form. This is the element that gives the document its legal force, and the statute prescribes specific language depending on where you sign. The wording is covered in the next section.

A signature. Your signature confirms that you personally are making the statement. No notary or other third party verifies your identity, so the signature alone carries the weight. A USCIS administrative decision put the point bluntly: a declaration signed by someone other than the declarant is “completely robbed of any evidentiary force.”¹

A date. The date establishes when you committed to the truthfulness of the statement. A missing date can render the document defective. Courts sometimes allow corrections for minor oversights, but a pattern of noncompliance invites sanctions.²

The statute itself does not address electronic signatures and predates modern electronic filing by decades. In federal courts using CM/ECF, an attorney’s login credentials are treated as a signature for documents filed through the system. If you are filing electronically, check the local court rules for how signatures are handled.

The Exact Perjury Language

Section 1746 gives two versions of the closing statement. Which one you use depends on where you sign the document.

If you sign inside the United States, its territories, possessions, or commonwealths, the closing reads:

“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”²

If you sign outside the United States, you must add a reference to U.S. law:

“I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).”²

The extra phrase in the foreign version establishes which country’s perjury laws apply when the document is signed on foreign soil. The statute says the wording must be “substantially” in the prescribed form, which gives some flexibility. You do not need to match the language word for word. But the closer you stick to the statutory text, the less exposure you have to a technical challenge. Omitting the perjury language entirely, or replacing it with something generic like “I swear this is true,” will not satisfy the statute.

Where 28 U.S.C. 1746 Does Not Apply

The statute carves out three situations where an unsworn declaration cannot substitute for a sworn statement:

Depositions. Testimony taken during a deposition must still be given under oath, administered by the officer conducting it.
Oaths of office. When a government official takes an oath upon assuming a position, an unsworn declaration is not an acceptable substitute.
Oaths before a specified official other than a notary. If a law requires you to take an oath before a particular type of official, a written declaration does not satisfy that requirement.²

One further limit is worth flagging because it is easy to assume otherwise: by its own terms, section 1746 applies only to matters governed by federal law or federal rules and regulations. It does not automatically make unsworn declarations acceptable in state courts. Many states have adopted the Uniform Unsworn Declarations Act or enacted similar legislation, but the requirements vary and some state filings still call for a notarized affidavit. Confirm the rule for the specific state court before filing.²

Formatting Is Not Enough: The Content Standard

A declaration with a perfect perjury clause can still fail if the substance is thin. Federal Rule of Civil Procedure 56(c)(4) sets the quality bar for declarations used to support or oppose summary judgment: the declaration must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the declarant is competent to testify on the matters stated.³

This is where most declarations fall apart. A statement that asserts legal conclusions, repeats hearsay, or describes matters the declarant could not actually have observed will not survive a challenge, no matter how carefully the perjury clause is worded. When you draft, spell out how the declarant knows what they know.

Declarations on Behalf of Organizations

A corporation or other organization cannot personally sign anything. When a business needs to submit a declaration, an authorized officer or employee signs it. The statute does not prescribe special language for this situation, but the person signing should identify their role and explain the basis for their knowledge of the facts. The declaration binds the individual who signs it, and that individual faces personal perjury liability if the statements are false.

What Happens If Your Declaration Is Defective

If your declaration lacks the perjury language, a valid signature, or a date, a court can reject it outright. In time-sensitive filings like summary judgment motions or administrative appeals, losing the declaration often means losing the motion, because the facts you intended to put before the court are simply not in the record.

Even when a court does not immediately strike a defective declaration, the opposing party will challenge it, and that triggers delays and the risk that the court will eventually strike it. Arguments built on the declaration collapse with it. Judges sometimes permit corrections for minor defects, but significant omissions or repeated sloppy filings can lead to sanctions or adverse rulings.

Penalties for a False Declaration

Signing under penalty of perjury is not a formality. The general perjury statute, 18 U.S.C. 1621, explicitly covers any “declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28.” A knowingly false declaration exposes you to a fine, up to five years in prison, or both.⁴

A separate statute, 18 U.S.C. 1623, targets false declarations made in proceedings before a federal court or grand jury, with the same maximum penalty in most cases and up to ten years where the proceeding involves the Foreign Intelligence Surveillance Court. Section 1623 also allows a narrow recantation defense if the declarant corrects the false statement during the same proceeding before it has affected the outcome or been exposed, but that defense does not exist under section 1621, and prosecutors choose which statute to charge.⁵

1
USCIS. Administrative Appeals Office Decision, Apr 13, 2012
2
Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury
3
LII / Legal Information Institute. Federal Rules of Civil Procedure Rule 56 – Summary Judgment
4
Office of the Law Revision Counsel. 18 USC 1621 – Perjury Generally
5
Office of the Law Revision Counsel. 18 USC 1623 – False Declarations Before Grand Jury or Court