England, domicile, affidavit, immigrant, non-resident

Most family-based immigrant cases, and a few employment-based ones as well, require the sponsor to provide an Affidavit of Support—generally either an I-864 or an I-864EZ. The purpose of the Affidavit goes beyond simply reassuring the consular officer that the alien applicant is not likely to become a ‘public charge,’ thereby avoiding inadmissibility under Immigration and Nationality Act (‘INA’) § 212(a)(4). The I-864 is also a legally enforceable contract in which the sponsor and any joint sponsor agree that during the enforceability period of the contract they will:

Provide support to maintain the alien at 125% of the Federal poverty level;
Reimburse the provider of any means-tested public benefit received by the alien; and
Submit to the jurisdiction of federal or state courts for actions for reimbursement.

A sponsor must be (1) at least 18 years old; (2) a US citizen, national or lawful permanent resident; and (3) domiciled in the United States, or a territory or possession. The US Citizenship and Immigration Service (‘USCIS’) defines ‘domicile’ as ‘the place where a sponsor has his or her principal residence…with the intention to maintain that residence for the foreseeable future.’

This domicile requirement would seem to prevent US citizens and lawful permanent residents living abroad from filing Affidavits of Support, at least unless their employment satisfies the requirements of INA § 319(b)(1) However, there are two escape hatches.

First, sponsors living temporarily abroad may file Affidavits of Support if they can show, by a preponderance of the evidence, that they still have a domicile in the United States. This ‘clarification,’ as it was called by the USCIS in the comments to the Final Rule, is not incorporated into the definition of ‘domicile,’ but was added as a new section of the Final Rule ‘to avoid confusion.’

In the case of would-be sponsors who maintain residences both in the US and abroad consular officers are required to first determine which one is the ‘principal abode.’ If the US residence is the principal abode the consular officer then must evaluate the question of domicile. This puts the burden on the would-be sponsor to prove that he or she

Departed the US for a limited, not indefinite, period of time;
Intended at the time of departure to maintain a US domicile; and
Can present ‘convincing evidence of continued ties to the United States.’

The requirement of ‘convincing evidence’ is more stringent than the USCIS regulation that requires only a ‘preponderance of the evidence.’

Re-establishing ‘Domicile’
The other escape hatch creates a single exception, under which a sponsor who is not domiciled in the United States (i.e., cannot show his or her residence abroad has been only temporary) may submit a Form I-864. The exception: ‘The sponsor satisfies the Department of State officer…by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission.’ The sponsor is therefore required to arrive in the United States before, or at the same time as, the intending immigrant, and the sponsor must intend to establish his or her domicile in the United States.

The Department of State’s Foreign Affairs Manual, at 9 FAM 302.8-2(B)(5), gives some examples of activities that will serve as evidence that the sponsor is establishing a US domicile and intends to establish residence before or concurrently with the IV applicant. They include opening a US bank account, seeking employment in the US, and applying for a Social Security Number.

Whether the I-864 is filed with the National Visa Center or is reviewed in the first instance by the consular officer at the post, would-be sponsors who live outside the US must be prepared to submit evidence of their residence and domicile. In such cases it is wise not to rely solely upon the completed I-864 (which asks for the residence and domicile of the sponsor) but to provide additional documentary proof on those key issues. If the Affidavit of Support is found to be insufficient because the sponsor does not satisfy the residence and domicile requirements the immigrant visa will not be issued. Obtaining a joint sponsor who is domiciled in the US does not solve the problem.

This short article does not purport to cover all permutations of this complex issue and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.