DOS Cable on Domicile Issues for I-864
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMCONSUL GUANGZHOU
Unclas State 044767
E.O. 12958: N/A
Tags: CVIS, CMGT
Subject: I-864 Affidavit of Support: Update No. 8: Domicile Issues
Ref: (A) Guangzhou 0398 (B) Hong Kong 0880 (C) 97 State 235619 (D) 1/98 General Information Sheet and Previous
1. Department has received a number of queries from posts on how to interpret domicile in the context of the I-864 affidavit of support. Department wishes to clarify its current views on the most basic and commonly asked domicile questions: (a) when can a petitioner be considered to have maintained a U.S. domicile while living overseas and (b) what steps are necessary to re-establish domicile for those who have not maintained it. Several posts have also asked about employment-based immigrant visas when the relative required to file an I-864 is not domiciled in the U.S. Posts with complicated cases or questions not answered by this cable are encouraged to request advisory opinions from CA/VO/L/A attn: Ken Lyons. This cable has been cleared by INS HQ.
2. Per Ref C, domicile means the place where a sponsor has a residence as defined in Section 101(a)(33) of the INA, with the intention to maintain that domicile for the foreseeable future. 101(a)(33), in part, defines residence as the principal, actual dwelling place. The petitioner must be domiciled in the U.S. or its territories in order to qualify as a sponsor. If the petitioner is not domiciled in the U.S., a joint sponsorship cannot be accepted and the applicant should be refused pursuant to 212(a)(4).
3. Maintaining Domicile. Posts will want to reread Ref C, which explains how petitioners engaged in certain types of employment abroad (e.g., with the USG or a U.S. company engaged in trade with the U.S. or as a priest or missionary) may be deemed by regulation to be domiciled in the U.S. for I- 864 purposes, if they meet the requirements of INA 316(b), 317, or 319(b)(1) (relating to exceptions to the U.S. residence requirement for naturalization purposes). With the exception of cases falling within section 316(b), 317 or 319(b)(1), a petitioner who has had his or her principal dwelling place overseas for an extended and open-ended period of time could not normally claim U.S. domicile. Persons in these circumstances will generally have to re-establish domicile in the U.S. (See below). Questions may arise where individuals have maintained both U.S. and overseas dwelling places, and it is unclear which is the principal dwelling place. In those cases posts should weigh the various indices of residence such as the address used for tax purposes, place of employment, etc. to determine the principal place of abode.
4. There are nevertheless a large number of petitioners who may have been overseas for extended periods of time who can maintain domicile. This will usually be students, contract workers, NGO volunteers and others normally considered to be taking up a temporary position. The key findings that must be made are that the sponsor departed the U.S. for a limited and not indefinite period of time, intended to maintain a U.S. domicile and in fact can present evidence of continued ties to the U.S. If those findings are made, absent evidence to the contrary, posts should generally assume that domicile has been maintained.
In considering these cases, posts should bear in mind that under U.S. immigration law, an alien required to maintain a residence outside the U.S. may legitimately be in the U.S. studying and even working for a number of years without visiting the home country. We still consider the alien to be resident abroad because the stay is limited to a defined, albeit extensive, period of time. Department believes we can define residence in the U.S. of immigrant visa sponsors for I-864 purposes in a similar fashion.
5. Re-establishing Residence. In cases where the sponsor has clearly not maintained a domicile in the U.S., the question becomes when can the sponsor be deemed to have re-established U.S. residence. There is no requirement that the residence have been established for any length of time, only that the sponsor has it and intends to keep it for the foreseeable future. To do this the sponsor must have taken steps to make the U.S. his immediate principal place of abode. Such steps might include finding U.S. employment, locating a place to live, registering children in U.S. schools and other indices of residence. The sponsor should also have made arrangements to relinquish residence in the third country.
6. Department does not, repeat not, believe that the sponsor must precede the sponsored family members to the U.S. to re-establish residence and domicile provided that the sponsor has taken the type of concrete steps outlined above. As the affidavit of support takes effect upon the admission of the beneficiary, the sponsor could travel with the beneficiary, establishing domicile upon their joint arrival. The beneficiary could not arrive before the sponsor. Each case would require a factual finding by the consular officer on the issues of residency and intent. Department believes the primary focus should be on the sponsor’s intent to immediately take up U.S. residence on a definite date prior to or at the same time as the beneficiary and for the foreseeable future.
7. Who’s Left Out? Sponsors who reside overseas, are not in a qualifying employment and cannot demonstrate intent to take up immediate U.S. residence. Residence and domicile are common sense determinations of where a person lives, which can’t be papered over by opening a bank account or taking other steps short of actually establishing a principal place of dwelling in the U.S.
8. Employment-Based Petitions. Employment-based beneficiaries who are petitioned for by relatives or by entities in which a relative has a significant ownership interest are normally required to have an I-864. However, INS has informed the Department that if the petitioning relative in such cases is not an AMCIT or an LPR and is not domiciled in the U.S., then no I-864 will be required, and the petitioner’s lack of domicile will therefore not be an impediment to visa issuance.
9. Guangzhou minimized considered.
Madeleine Albright