If you decide to file an affidavit of support for an immigrant, you must prove your intent to establish domiciliary status, or be domiciled in the U.S.
DEMONSTRATING INTENT TO ESTABLISH DOMICILIARY STATUS
If you intend to help your spouse or relative who lives overseas immigrate into the U.S., then you may need to file an affidavit of support. To do this, you have to be domiciled in the U.S. or demonstrate your intent to establish domiciliary status.
What Is Domiciliary Status?
People commonly use the words residence and domicile to refer to their home. Adding to the confusion is that the terms can mean different things in different areas of law. However, they mean different things, and what they mean depends strictly on time. Knowing the difference will save you a lot of stress, and of course, money.
While a residence refers to a home in which you may be temporarily staying, your domicile is a home that you intend to live in permanently. Your domicile can be your residence but your residence may not necessarily be your domicile.
Naturally, you will come across two variants of domicile law:
- Domicile of origin – Also known as domicile by birth, everyone acquires this at their birth. A child born to parents in a marital relationship will have the same domicile as the father, while one born out of wedlock will take its mother’s domicile.
- Domicile by choice is presumed by the law when you change residence, intending to make the new residence permanent.
You are a domiciliary of a place if you reside there, and have the intention of making it your permanent place of abode. Your domicile determines which state will have access to your income and inheritance taxes, and where divorce proceedings can begin.
It is not your nationality.
Domiciliary intent must be proven in order to become a permanent resident. Your intention to make where you reside your domicile is called the domiciliary intent.
As an aspiring American, you’ll need to provide evidence that you will not be a public charge to the U.S. government when you become domiciled. So, in processing your application, you may need to have Form I-864 filed on your behalf. Your sponsor has to be a U.S. citizen, a permanent resident, and also a domiciliary of the United States (or at least intending to establish domicile in the United States.)
Form I-864, the “Affidavit of Support,” is a form of the U.S. Citizenship and Immigration Services (USCIS). You, the immigrant, are the beneficiary, while your sponsor (who files the form on your behalf) is the petitioner. Through this form, the petitioner agrees to provide financial assistance, if necessary, for you when you become a resident (Domiciliary).
Your spouse, relative (or perhaps a friend) who intends to help you by filing an affidavit of support and help you move into the U.S. must be domiciled in the United States or their domiciliary intent should be established clearly.
Factors Used to Determine Domiciliary Intent
Demonstrating your intent to establish domiciliary status and filing a Form I-864 can tend to be a tedious task, but a lawyer can help. Note: a petitioner who normally resides outside the US will be asked about domiciliary intent at the visa interview (usually through the immigrant.)
Many factors play a role in determining your domiciliary intent. The U.S. must know whether your intent to demonstrate your domiciliary status is legitimate.
Some of the conditions to determine domiciliary intent and file an affidavit of support include the following:
- If you’re staying abroad, you (the sponsor) must provide evidence that the U.S. remains or will be your domicile.
- If you’re currently not domiciled in the U.S., the sponsor-petitioner must still submit Form I-864, with evidence of intent to establish domiciliary status in the United States.
- You may need to provide evidence of your continuous residence in the United States.
- Showing proof of any real property owned or current employment may be necessary.
- Provide evidence of income taxes filed and paid. Note: filing taxes as a nonresident (Form 1040NR) will result in the consular officer concluding lack of domiciliary intent. However, filing as a resident but taking the Foreign Earned Income Exclusion (FEIE) on Form 2555 will ordinarily not result in such a finding.
- Show any record of military service (if available).
- Having a voter’s registration (if a US citizen. CAUTION: Do not register to vote if you are a permanent resident! You will lose your green card.)
- You may need to show your possession of a driver’s license (but not necessarily).
- Proof of seeking a job, finding a place to live such as a real estate agent contract, emails, dated communications with family/friends about relocating back to the US, enrollment of your children in school in the US
It’s no surprise that you may be unable to win approval of the immigrant visa because of your domiciliary status. Rightfully so, because it’s easy to misinterpret your residency for domiciliary, and you may find certain conditions confusing.
That being said, if you’ve read to this point, then you have solved half the riddle.
Whether or not you know the specifics of your problem, contact us for further assistance. Knowing your problem is the first step to solve it, and taking action is the next. So, call us now, or fill our contact form to access our professional legal services at The HMA Law Firm.
A refusal of a visa is extraordinarily difficult to overcome. A lawyer can help you get it right the first time. The process takes long enough: don’t delay it even further.
Our attorneys will pinpoint the problem obstructing your Form I-864, follow through the case from start to finish, whilst providing guidance, information, and a targeted solution for your particular case.
Reach out to us by jumping on a call, or filling our contact form!