DOS Cable on Issue of Domicile
This cable addresses the issue of domicile. INA Sec. 213A requires the petitioner, or relative with significant ownership interest in the case of an employ-bsd pet., be domiciled in the U.S. or its territories and possessions. In some instances, the definition of domicile will disqualify American citizens and LPR aliens residing abroad from serving as sponsors, with the end result that the applicant will not be able to qualify for an IV. The definition of domicile is quite complex. This message provides guidance on the subject.
R 171907Z DEC 97FM SECSTATE WASHDC
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: I-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/VO/L/A 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 (I-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). 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 219(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 recognized 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 denomination 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 & 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/VO/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/VO/L/A for an advisory opinion.
Pickering