(1) (U) In General: For the purposes of INA 213A, "domicile" means:
(a) (U) The place where a sponsor has his or her principal "residence" or (as defined in INA 101(a)(33)) in the United States, with the intention to maintain that residence for the foreseeable future.
(b) (U) A legal permanent resident alien (LPR) living abroad temporarily is considered to have a domicile in the United States, if he or she has applied for and obtained the preservation of residence benefit under INA 316(b) or INA 317.
(c) (U) A U.S. citizen living abroad whose employment meets the requirements of INA 319(b)(1) is considered to be domiciled in the United States.
(2) (U) Maintaining U.S. Domicile:
(a) (U) Unless the petitioner meets the conditions outlined in paragraph (3) below, a petitioner who is maintaining a principal residence outside the United States could not normally claim a U.S. domicile and would be ineligible to submit Form I-864. In order to provide an AOS for his or her relative, such a petitioner would have to reestablish a domicile in the United States. (See paragraph (4) below.)
(b) (U) However, in a situation in which the petitioner has maintained both a U.S. residence and a residence abroad, you must determine which the principal abode is. Some petitioners have remained abroad for extended periods but still maintain a principal residence in the United States (i.e., students, contract workers, and non-governmental organization (NGO) volunteers). To establish that one is also maintaining a domicile in the United States, the petitioner must satisfy you that he or she:
(i) (U) Departed the United States for a limited, and not indefinite, period of time;
(ii) (U) Intended to maintain a U.S. domicile at the time of departure; and,
(iii) (U) Can present convincing evidence of continued ties to the United States.
(3) (U) Establishing U.S. Domicile:
(a) (U) A petitioner living abroad not meeting the criteria in 9 FAM 302.8-2(B)(5) paragraph a(2) who wishes to qualify as a sponsor must satisfy you:
(i) (U) That he or she has taken steps to establish a domicile in the United States;
(ii) (U) That he or she has either already taken up physical residence in the United States or will do so concurrently with the applicant;
(iii) (U) The sponsor does not have to precede the applicant to the United States but, if he or she does not do so, he or she must at least arrive in the United States concurrently with the applicant;
(iv) (U) The sponsor must establish an address (a house, an apartment, or arrangements for accommodations with family or friend) and either must have already taken up physical residence in the United States; or
(v) (U) Must at a minimum to satisfy you that he or she intends to take up residence there no later than the time of the applicant’s immigration to the United States.
(b) (U) Although there is no time frame for the resident to establish residence, you must be satisfied that the sponsor has, in fact, taken up principal residence in the United States. Evidence that the sponsor has established a domicile in the United States and is either physically residing there or intends to do so before or concurrently with the applicant may include the following:
(i) (U) Opening a bank account;
(ii) (U) Transferring funds to the United States;
(iii) (U) Making investments in the United States;
(iv) (U) Seeking employment in the United States;
(v) (U) Registering children in U.S. schools;
(vi) (U) Applying for a Social Security number; and
(vii) (U) Voting in local, State, or Federal elections.
(c) (U) If a petitioner cannot satisfy the domicile requirement, the petitioner fails to qualify as a “sponsor” for the purposes of submitting Form I-864, and a joint sponsor cannot be accepted and the applicant must be refused pursuant to INA 212(a)(4). Without a properly executed I-864, signed by a sponsor (the petitioner) who is “domiciled” in the United States, in visa cases which require an I-864, then an immigrant visa cannot be approved.
(4) (U) U.S. Domicile for Employment-Based Preference Applicants: Employment-based beneficiaries who are petitioned for by U.S. citizen or permanent resident alien relatives or by entities in which such a relative has a significant ownership interest are required to submit a Form I-864. However, the DHS/USCIS has determined that Congress did not intend to impose this requirement on a petitioning relative, or a relative with a substantial interest in a business enterprise who is not a U.S. citizen or a lawful permanent resident (LPR) and is not domiciled in the United States. In these cases only, the lack of Form I-864 will not be an impediment to admissibility. We concur with this finding; therefore, in these cases, lack of a Form I-864 would not be an impediment to visa issuance.
b. (U) Employment Abroad Meeting Requirements of INA 319(b)(1) :
(1) (U) A U.S. citizen who is living abroad temporarily is considered to be domiciled in the United States if the citizen's employment meets the requirements of INA 319(b)(1). That section requires, for qualifying “employment abroad,” that the citizen be in the employ of:
(a) (U) The U.S. Government;
(b) (U) A U.S. institution of research recognized as such by the Secretary of Homeland Security (DHS) (see 8 CFR 316.20 for the list of institutions);
(c) (U) A U.S. 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;
(d) (U) A public international organization in which the United States participates by treaty or statute;
(e) (U) A religious denomination having a bona fide organization in the United States, if the individual concerned is authorized to perform the ministerial or priestly functions thereof; and
(f) (U) A religious denomination or an interdenominational mission organization having a bona fide organization in the United States, if the person concerned is engaged solely as a missionary.
(2) (U) See INA 316 and INA 317 regarding continuous residence requirements for LPRs.
JQK LAW CORPORATION is a Calfornia Law Firm and Corporation
Disclaimer: None of the Information provided here serves as Legal Advice. The information here or communications with JQK Law do not create Attorney-Client Relationships (unless a specific retainer agreement is signed and attorney fees are paid). This website is an advertisement. Please Consult an Attorney.