THE PETITIONER MUST BE DOMICILED IN THE U.S., EVEN IF THERE ARE CO-SPONSORS
by Michael J. Gurfinkel

Dear Atty. Gurfinkel:
I was petitioned by my U.S. citizen father in 1992. The priority date is now current, and I am about to be processed at the U.S. Embassy for my visa. My father is elderly, and 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. Will there be any problems in my case if my father is now living in the Philippines?

Very truly yours,
LG

Dear LG:
U.S. immigration laws require that the petitioner (the person who filed the petition), 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 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 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.

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