Petitioner must be domiciled in the US, even if there are co-sponsors - IMMIGRATION CORNER by Michael J. Gurfinkel

Dear Atty. Gurfinkel:

I was petitioned by my US citizen father in 1987. The priority date is now current, and I am about to be processed at the US Embassy for my visa. I know that one of the requirements is the affidavit of support. My father is already retired, has no income, and is now living in the Philippines. My brothers and sisters, who are well-established in the US, are willing to give affidavits of support for me, in place of my father. Do you think there will be any problems in my case because my father is now living in the Philippines?

Very truly yours,

LG



Dear LG:

New immigration laws require that the petitioner must give an affidavit of support in all family-based petitions, even if there will be co-sponsors or joint sponsors. Therefore, your father, as petitioner, must give an affidavit of support, even if he is retired, has little or no money, and your brothers and sisters are willing to act as joint sponsors.

The law also requires that the petitioner (in this case, your father) must be "DOMICILED" (or living) in the US. If your father is living in the Philippines, he is not "domiciled" in the U.S. Therefore, he cannot give an affidavit of support, and your visa could not be issued.

In various US government cables, memorandum, regulations and laws relating to "domicile" the following points are made about "domicile" and affidavit of support:

If the petitioner is not domiciled in the US, can a joint sponsor file an affidavit of support in place of petitioner? No. Joint sponsors are not authorized to submit affidavits of support, if the petitioner is not domiciled in the U.S. (Even though your brothers and sisters are willing to give affidavits of support, they cannot submit affidavits of support, or act as co/joint sponsors, if your father is not domiciled in the US)

How is domicile determined? Domicile is determined on a case-by-case basis. The petitioner must have "a principal residence in the U.S. with the intent to maintain that residence for the foreseeable future". (If the petitioner is living outside the U.S., he cannot comply with the "domicile" requirement of the new affidavit of support laws.)

How can the petitioner establish domicile? According to the US State Department in Washington, D.C. (which oversees Embassies):

"The sponsors must have taken a credible combination of steps to make the US his immediate principal place of abode. Such steps might include finding US employment, locating a place to live, registering children in US schools and other indices of residence. The sponsor should also have made other arrangements to relinquish residence in the third country. It is not necessary for the sponsor to 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."

The bottom line is that, under new laws, your father will have to move back to the US, and establish his domicile in the US, in order for you to complete your Consular processing for your visa. If he is unwilling to do so, you will have problems getting your visa issued. It is not the Embassy’s fault if you get denied your visa. They are just following the laws set by Congress.

This "domicile" issue would also apply with other types of family petitions, such as husbands and wives, parents and small children, etc., where the petitioner would have to be domiciled in the US in connection with visa processing. Even if you try to argue that you cannot be apart from your spouse or child, or your parent likes it in the Philippines, the law still requires that the petitioner be domiciled in the US. The domicile requirement also applies if a person is already in the US seeking to adjust status. If the petitioner is living outside the US, the person would not be eligible for a green card.

Michael J. Gurfinkel has been an attorney for 20 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also a member of the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com.

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)