The choice between 28 U.S.C. 1746(1) and (2) turns on one thing: where you are physically standing when you sign. Subsection (1) governs unsworn declarations executed outside the United States and requires the declarant to swear under penalty of perjury “under the laws of the United States of America.” Subsection (2) governs declarations executed inside the United States, its territories, possessions, or commonwealths, and drops that phrase.1Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury Both have the same legal force as a notarized affidavit. Pick the wrong one for your location and the filing can be rejected.
Location of Signing Is the Only Trigger
The statute does not care where the court sits, where the lawsuit was filed, or where the opposing party is located. It cares where the declarant physically signs.2Office of the Law Revision Counsel. 28 US Code 1746 – Unsworn Declarations Under Penalty of Perjury
So a U.S. citizen working overseas uses subsection (1). A military service member stationed abroad uses subsection (1). A foreign witness in an American case uses subsection (1). An immigrant filing paperwork from within the United States uses subsection (2). The typical mistake is grabbing whatever template is closest, usually the domestic version, and signing it in another country. The declaration then lacks the “under the laws of the United States of America” hook, and a court can strike it.
The Two Forms, Side by Side
The statute gives the exact wording for each subsection. For a declaration signed outside the United States under subsection (1):
“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).”1Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury
For a declaration signed inside the United States under subsection (2), the language is identical except that the words “under the laws of the United States of America” are removed. That single clause is the whole difference on the page.3Department of Justice Archives. 1760 Perjury Cases – 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury
The reason it matters: when you sign in a foreign jurisdiction, that clause is what anchors the declaration to U.S. perjury law. Without it, the document reads like a statement made under whatever law happens to govern where you are, which is not what the federal court needs.
How Closely the Wording Has to Match
The statute says a declaration must follow “substantially the following form.”2Office of the Law Revision Counsel. 28 US Code 1746 – Unsworn Declarations Under Penalty of Perjury That word “substantially” gives you a little room. Minor rewording will not automatically sink the declaration if the core elements are all there:
- A statement made under penalty of perjury
- The reference to U.S. law, if you are signing abroad
- A date of execution
- A signature
What goes beyond minor variation is leaving out the penalty-of-perjury language entirely, or omitting “under the laws of the United States of America” from a declaration signed abroad. Either of those is likely to get the filing disregarded.
Date and signature are not optional either. The date establishes when the declarant attested to the facts; the signature identifies who did the attesting. An undated or unsigned declaration is incomplete under the statute, and in many courts you will not get a chance to fix it after the filing deadline has passed.
When Neither Subsection Is Enough
Section 1746 has three carve-outs. In these situations, a written declaration under either subsection cannot substitute for a traditional sworn oath:
- Depositions. Deposition testimony must be taken under oath, typically administered by a court reporter or other authorized officer.
- Oaths of office. Swearing into a government position requires the formal oath and cannot be replaced by a written declaration.
- Oaths before a specified official other than a notary public. If a statute requires you to appear before a particular officer, such as a judge or a consul, and take an oath, a written declaration will not satisfy it.
Outside those three categories, an unsworn declaration under 28 U.S.C. 1746 stands in for a sworn affidavit across federal courts, administrative agencies, and regulatory bodies.1Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury
Who Uses Which
Subsection (1) tends to come up when a witness is overseas at the time a filing is due, when a client is traveling internationally, or when a service member abroad has to submit sworn testimony to a stateside proceeding. Attorneys reach for it whenever notarization abroad is impractical, which is often, since not every country has ready access to a U.S. consular notary.
Subsection (2) is the default for anyone signing inside the United States, including its territories, possessions, and commonwealths. Pro se litigants rely on it heavily because it lets them submit sworn statements without tracking down a notary for every filing that requires one.
The practical checkpoint is the same for both: at the moment you put ink or a conformed signature to the page, where are you physically located? That answer picks the subsection.
Common Mistakes That Get 1746 Declarations Rejected
A few errors show up repeatedly, and all of them are avoidable:
- Wrong subsection for the signing location. Using the domestic form abroad, or the foreign form at home, means the declaration does not comply with the statute.
- Missing the phrase “under the laws of the United States of America” on a foreign-signed declaration. That clause is the defining feature of subsection (1). Without it, the declaration is defective.
- No date or no signature. Both are statutory. A declaration missing either can be rejected without a chance to correct it if the deadline has passed.
- Treating “substantially the following form” as license to paraphrase. Small variations are tolerated; missing elements are not. The safe move is to copy the statutory language verbatim.
- Trying to use a declaration where the statute forbids it, meaning depositions, oaths of office, or oaths that must be taken before a specified official.
The simplest safeguard: copy the statutory language word for word, fill in the date, sign it, and confirm which country you are sitting in when you do.1Office of the Law Revision Counsel. 28 USC 1746 – Unsworn Declarations Under Penalty of Perjury