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DOS Rule on Affidavits of Support: Meaning of Domicile


   R 171907Z DEC 97
   FMSECSTATEWASHDC
   TO ALL DIPLOMATIC AND CONSULAR
   POSTS
   SPECIAL EMBASSY PROGRAM
   AMEMBASSY BUJUMBURA
   AMEMBASSY SARAJEVO
   AMEMBASSY PARAMARIBO
   UNCLAS STATE 235619
   VISAS INFORM CONSULS
   E.O. 12958: N/A
   TAGS: CVIS, CMGT

   Subject: 1-864 Affidavit of Support Update
            No. 4 - Domicile

   Ref..    (A) State 228862 (B) State 211673

   1. Summary.  This is the fourth in a series of cables
   regarding the new affidavit of support I-864, and
   related regulations.  This cable addresses the issue
   of domicile.  INA Section 213A requires that the
   petitioner, or relative with significant ownership
   interest in the case of employment-based petition,
   be domiciled in the United States or its territories
   and possessions.  In some instances, the definition
   of domicile will disqualify American citizens and
   legal permanent resident aliens residing abroad
   from serving as sponsors, with the end result that
   the applicant will not be able to qualify for an 
   immigrant visa.  The definition of domicile is quite
   complex.  This message provides general guidance
   on the subject.  Posts are encouraged to submit 
   difficult cases to CA/V0/UA for an advisory opinion.  
   End summary.

   Petitioner Must Be a Sponsor

   2. INA Section 212(a)(4) as amended requires
   that the petitioner file a section 213A affidavit of
   support (1-864) in all family-based cases.  In cases
   where the petitioner is a relative or if a relative
   has a significant ownership interest (defined in
   the regulations as 5 percent or greater) in the
   petitioning entity, that relative must file an I-864.  
   INA section 213A (f) lists the requirements
   to be a sponsor (see para 3 below).  Any petitioner 
   who does not meet the requirements may
   not be a sponsor (with the exception that if the
   petitioner's income is not sufficient he or she
   must still submit an affidavit of support, but a
   joint sponsor may also submit an affidavit of
   support).  If the petitioner in the specified immigrant 
   visa categories does not qualify as a sponsor, 
   the applicant cannot qualify for an immigrant visa.

   Sponsor Defined - INA Section 213A (f)

   3. Section 213A(f) (1) In General. - For purposes
   of this section the term "sponsor" in relation to
   a sponsored alien means an individual who executes an 
   affidavit of support with respect to the sponsored alien 
   and who -

   (a) is a citizen or national of the United States or
   an alien who is lawfully admitted to the United
   States for permanent residence;

   (b) is at least 18 years of age;

   (c) is domiciled in any of the several States of
   the United States, the District of Columbia, or
   any territory or possession of the United States;

   (d) is petitioning for the admission of the alien
   under section 204; and

   (e) demonstrates (as provided in Paragraph (6))
   the means to maintain an annual income equal
   to at least 125 percent of the federal poverty line.

   Domicile Defined

   4. The new regulations define domicile as follows:
   'Domicile means the place where a sponsor has a
   residence, as defined in section 101(a)(33) of the
   Act in the United States, with the intention to maintain 
   that residence for the foreseeable future, provided, 
   that a permanent resident who is living abroad 
   temporarily shall be considered to be domiciled in the 
   United States if the permanent resident has applied for 
   and obtained the preservation of residence benefit under 
   section 316(b) or section 217 of the Act and provided further, 
   that a citizen who is living abroad temporarily shall be 
   considered to be domiciled in the United States if the
   citizen's employment abroad meets the requirements of section 
   319(b)(1) of the Act." (Note: "The Act' refers to the INA.)

   Residence Defined - INA Section 101 (a) (33)

   5. Section 101(a)(33): The term "residence" means the 
   place of general abode; the place of general abode of 
   a person means his principal, actual dwelling place in 
   fact, without regard to intent.

   6. To be considered as having a principal residence 
   in the United States, individuals must demonstrate 
   that their sojourn abroad is temporary and that they 
   have maintained ties to the United States.  They 
   can demonstrate compelling ties through a convincing 
   combination of the following types of actions: 
   voting in U.S. State or Federal elections, paying 
   U.S. income taxes, maintaining property, a residence 
   or a permanent mailing address in the U.S., maintaining
   bank accounts or investments in the U.S., etc.

   Qualifying Overseas Employment - INA
   Section 319(b)(1)

   7. Section 319(b) (1) defines qualifying employment abroad 
   as follows:

   In the employment of:

     -   The Government of the United States;

     -   An American institution of research recog-
         nized as such by the Attorney General;

     -   An American firm or corporation engaged
         in whole or in part in the development of
         foreign trade and commerce with the United
         States or a subsidiary thereof;

     -   A public international organization in which
         the United States participates by treaty or
         statute;
     or

     -   Is authorized to perform the ministerial or
         priestly functions of a religious denomina-
         tion having a bona fide organization within
         the United States;

     or

     - Is engaged solely as a missionary by a religious 
       denomination or by an interdenominational mission 
       organization having a bona fide organization within 
       the United States.

   What Does it Mean?

   8. To qualify as a sponsor, a petitioner who is
   residing temporarily abroad must have a principal 
   residence in the U.S. (i.e. a place in the U.S.
   to which he or she intends to return - the definition 
   of domicile in para 4 includes the issue of
   intent) and/or work in one of the categories listed
   in para 7. Legal permanent resident sponsors
   must further demonstrate that they have maintained 
   their LPR status.  A U.S. citizen or legal
   permanent resident spouse or dependent who has
   maintained a residence in the U.S. and/or whose
   spouse/parent works in one of the categories listed
   in para 7 would also qualify as a sponsor.

   9. Many U.S. citizens and legal permanent residents 
   reside outside the United States on a temporary basis, 
   usually for work or family considerations.  Temporary 
   is a relative term and may actually cover an extended 
   period residing abroad.  As long as the sponsor has a 
   residence in the U.S., as defined in paras 5 and 6, to 
   which he or she intends to return, and/or if he or she is
   employed per para 7, the sponsor can be considered to be 
   domiciled in the U.S.

   Who Cannot Sponsor?

   10.  Some examples of unqualified sponsors:

   -    A U.S. citizen or LPR who resides overseas, who has 
        not maintained a U.S. residence and is not employed 
        (or his/her spouse is not employed) in one of the 
        categories listed in para 7.

   -    A U.S. citizen or LPR who has lived overseas for 
        an extended period and has never established a 
        domicile in the United States.

   -    A U.S. citizen who was born overseas and
        has never established a residence in the
        United States.

   -    A U.S. citizen whose employment falls
        within the categories listed in para 7, but
        who was born overseas and never established
        a residence in the United States.  Qualifying 
        employment cannot preserve a domicile or residence 
        that was never established.

   -    A U.S. citizen residing abroad who is not
        working in one of the categories listed in
        para 7 and who has no plans to return to the
        United States may not meet the definition
        of domicile for the purposes of section 213A.
        Thus, if ties, a temporary nature of stay and
        a credible intent to return to the United
        States are in question, the individual may
        no longer qualify as having a domicile in
        the U.S. When in doubt regarding domicile, 
        posts should request an advisory opinion 
        from CA/V0/L/A.

   Can a Joint Sponsor File an I-864?

   11. The INS Office of Legal Counsel has determined that 
   under the Act and regulations, a joint sponsor cannot be 
   authorized in cases where the petitioner cannot be a sponsor 
   by virtue of domicile.  The petitioner must first qualify as a
   sponsor before there can be a joint sponsor.

   How Can the Petitioner Establish a Domicile?

   12. If the petitioner travels to the United States
   and sets up a principal residence, where he or she
   intends to reside, he or she may then qualify as a
   sponsor.  Establishing a principal residence would
   entail obtaining an address (a house, apartment
   arrangements for accommodations with a family
   member or friend) and taking up permanent physical 
   residence.  There is no minimum time to establish 
   residence, but a credible demonstration of an
   actual residence in the United States is required.  If
   the officer is convinced the petitioner has in fact
   taken up residence in the U.S., the petitioner would
   then qualify as a sponsor.  A convincing combination 
   of several of the following types of action could
   be considered as an indication of residence: establishing 
   an address, setting up a bank account transferring funds 
   to the U.S., making investments, seeking employment 
   applying for a social security number, voting in local, 
   state or federal elections, etc.

   When in Doubt, Ask

   13. Domicile is a complex issue.  Posts should
   use this guidance to the extent possible to determine 
   whether a petitioner who resides overseas
   qualifies as a sponsor.  Difficult cases which may
   not appear to fall within the examples cited above
   should be referred to CA/V0/L/A for an advisory opinion.

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