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THE PETITIONER MUST BE DOMICILED IN THE
U.S., EVEN IF THERE ARE CO-SPONSORS
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I was petitioned by my U.S. citizen father in 1987. The priority
date is now current, and I am about to be processed at the U.S.
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 U.S., 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 U.S. 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 U.S. 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 U.S., 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 U.S.)
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 forseeable 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 U.S. State Department in Washington, D.C. (which
oversees Embassies):
"The sponsors must have taken a credible combination
of 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 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 U.S., and establish his domicile
in the U.S., 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 U.S. 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 U.S. The
domicile requirement also applies if a person is already in the
U.S. seeking to adjust status. If the petitioner is living outside
the U.S., the person would not be eligible for a green card.
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