My wife was born in the U.S. and remains a U.S. citizen. Her family moved to Canada when she was 13, in 1972, and she has lived there since. I am a Canadian citizen and I have two children. My wife started the process of sponsoring us and our case has been forwarded to the National Visa Center. My understanding of the new rules are that we MUST be sponsored, and she MUST reside in the U.S. to do so. Hence, she must move to the U.S. without us, so we can join her later. Is this correct?

This has a very controversial issue. The position taken by the Department of State ("DOS") and the Immigration and Naturalization Service ("INS") was not clear until recently. Even now, it is the subject to debate.

The domicile requirement was apparently imposed by Congress to ensure that sponsors would be subject to enforcement actions in the event that the beneficiary subsequently received means tested benefits. It was originally believed that a petitioner residing abroad would be able to petition a relative, provided that a joint sponsor in the United States could be found. This is because joint sponsors are jointly and severally liable under the affidavit of support.

However, the Department of State has stated in a recent cable that the petitioner is required to be a sponsor under the affidavit. Joint sponsors are only permitted where the petitioner is unable to meet the income requirement. They are not permitted where the petitioner is unable to meet the domicile requirement. In other words, if the petitioner is not domiciled in the United States, the alien will not be permitted to immigrate. The Immigration and Naturalization Service has taken a similar view.

In my opinion, this is an overly restrictive view. However, it will probably take Congressional action or a lawsuit to change it.

I am a U.S. citizen seeking to petition my Canadian fiance. I will need to file a joint affidavit of support when he enters the United States, marries me, and applies for adjustment of status. I understand that the form required at this point will be the I-864. I also understand that the affadavit of support required for a non-immigrant K-visa is the I-134 form. 1) Since the I-864 will be required eventually, can it be sent along with the initial petition either in addition to or in lieu of the I-134? 2) Is there a different form required for the joint sponsor, or do we (myself and the joint sponsor) both fill one out and submit them both? 3) If the joint sponsor lives in a different city/state from me, can he or she fill in the form there, have it notarized, and return it to me to send with the petition?

I mentioned in last month's bulletin that a K-1 fiance does not require Form I-864 since it is technically a nonimmigrant category. The old Form I-134 is used instead. I don't believe that Form I-864 will be accepted in lieu of Form I-134. Although there is nothing to stop you from submitting Form I-864 in addition to Form I-134, there is no reason why you should; you will not save any processing time.

Final processing of the K-1 is done at a consulate abroad. When the fiance enters the United States and marries you, the adjustment of status is handled by the local INS District Office. If you submit Form I-864 with the K-1 case, a duplicate Form I-864 will still have to be submitted with the adjustment of status filing.

The Form I-864 is the same for the joint sponsor. You and your joint sponsor will each complete Form I-864. The joint sponsor can complete Form I-864 by himself or herself, have it sworn locally, and then send it to you for submission to the INS.

I am a Canadian citizen working in US with a TN. I will be switching to an H-1B visa soon because my company will be applying for my green card. If I want to get married to my fiancee in China, should I go back now with my TN or go back later with H-1B Visa. Which one (TN or H-4) is easier to apply for in China? If the H-4 is easier, can she apply for it right after the marriage?

The H-4 will preferable for several reasons. First, Chinese citizens are probably subjected to greater scrutiny when consular officers consider their immigrant intent. The H-1B category recognizes the concept of dual intent, which also extends to dependents of H-1B's entering the United States under the H-4 category. Therefore, if your spouse enters as an H-4 dependent, immigrant intent will not be a significant problem. Dual intent is not specifically recognized for the TN category. Second, a U.S. consulate in China will not be as familiar with the TN category for Canadians. Although they will have the authority to issue a TN visa to your wife, their lack of familiarity with the category may make them reluctant to issue a TN visa.

The phrase "Admitted Until: D/S" appears on my I-94. What does this mean? does it mean that I am allowed to stay in the US until the expiration date on my F-1 Visa or until the date on my I-20? I received my practical training authorization in July 1997 but my I-20 expired in May 1997. Do I need to reinstate my I-20 or F-1 visa, even though my employment authorization expires in July 1998?

The answer to your question appears in my F-1 article in the "U.S. Immigration Handbook" section of our web site. However, I will briefly answer it again here. "D/S" means duration of status. According to 8 CFR §214.2(f)(5)(i), the term "duration of status" is defined as the time necessary to pursue a full course of study at any educational level (e.g., bachelor's, master's, doctoral, or post-doctoral) in the same school, and any authorized practical training, plus 60 days thereafter within which to depart from the United States.

The expiry date of your visa is generally not relevant unless you leave the United States. The date stated on your I-20 is relevant but your status continues past this date in certain circumstances. You mentioned that you did not receive your employment authorization document ("EAD") for optional practical training until approximately 60 days after the expiry date on your I-20. However, you are entitled to 60 additional days after the completion of studies to depart. If the time between the expiration date on your I-20 and the date you received your EAD was less than 60 day, you did not fall out of status. If you are currently working in optional practical training pursuant to an EAD, you will be in status until the expiration of your employment authorization, plus an additional 60 days.