The U.S. Domicile Requirement for Petitioners

In order for an application for an immigrant visa to be approved, the petitioner, whether a United States citizen or a permanent resident, must be domiciled in the United States. That is, while a petitioner may spend a significant amount of time abroad, he or she must demonstrate that his or her life is based primarily in the United States and will be for the foreseeable future. 

The reason for this requirement is simple: immigrant visas are intended to reunite families. There is no reunification to be accomplished - and therefore no reason to issue an immigrant visa - if the petitioner is not residing in the country to which the applicants intend to move.

The following information may help you determine how to demonstrate the petitioner's domicile: 

Q: How is domicile determined?

Domicile is a complex issue determined on a case-by-case basis. Many U.S. citizens and Legal Permanent Residents live outside the U.S. on a temporary basis, usually for work or family considerations. A petitioner can be considered domiciled in the U.S. if he or she can demonstrate to the consular officer's satisfaction an intention to return to a permanent residence in the United States. 

Petitioners who can show that they had a domicile in the U.S., but are now living temporarily abroad because of certain types of employment, shall be considered to have retained their domicile in the United States. The following are the qualifying types of employment:

• Employment by the U. S. government; an American institution of research recognized by the Attorney General; an American firm or corporation engaged in whole or in part in the 05/11/2009erce with the U. S. or a subsidiary thereof; a public international organization in which the U. S. participates by treaty or statute. 
• Authorization to perform ministerial or priestly functions of a religious denomination or by an inter-denominational organization. Representing a bona fide organization in the United States. Stationed abroad pursuant to that calling.

There may be other circumstances in which a petitioner can show that his or her stay abroad is clearly of a temporary nature, so that he or she can be found still to have a domicile in the United States. For example, persons who are abroad temporarily to study, teach or engage in other activities that do not meet the requirements of Section 316(b), 317 or 319(b) of the Immigration and Nationality Act (those listed above) may nevertheless be considered to have a domicile in the United States if they can satisfy the consular officer that they did not, in fact, give up their domicile in the United States and establish a domicile abroad.

Q: How can the petitioner establish a domicile?

If the petitioner travels to the United States and sets up a principal residence where he or she intends to reside, he or she may qualify to petition an immigrant. Establishing a principal residence would entail obtaining an address (a house, apartment, etc.) and taking up physical residence. There is no minimum time to establish residence, but a credible demonstration of an actual residence in the United States is required. If the officer is convinced that the petitioner has in fact taken up residence in the U.S., the applicant will be able to receive his or her immigrant visa. A convincing combination of several of the following types of action might be considered as an indication of U.S. domicile: 

• Establishing an address in the United States 
• Setting up a bank account and transferring funds to the U.S. 
• Making investments 
• Seeking employment 
• Applying for a Social Security number 
• Voting in local, state or federal elections 

Q: If the petitioner does not have a domicile in the United States, can a joint sponsor file an I-864 (Affidavit of Support)?

No. The USCIS Office of the General Counsel has determined that under the act and regulations, a joint sponsor is not a substitute for a petitioner who does not maintain a domicile in the United States. Although a petitioner may arrange for somebody to serve as a joint sponsor for an immigrant if the petitioner does not have the income to qualify as a sponsor, the petitioner must still meet all other requirements for being a sponsor (age, domicile, and citizenship).

Q: Our petitioner has lived in the Philippines for the past few years, but plans to go back with us to the United States when we immigrate. Does this satisfy the domicile requirement?

This will depend on the overall circumstances of the case, but in most instances this will not satisfy the requirement. If the petitioner has chosen to make the Philippines his or her home in recent years, he or she may need to re-establish residence in the United States before the applicant(s) can be issued a visa. 

Q: In a "follow-to-join" case, can the applicant still immigrate to the United States if the petitioner has relinquished Legal Immigrant status?

No. The petitioner must qualify as a sponsor in order to file an I-864. A petitioner who has given up his or her legal permanent resident status cannot qualify as a sponsor, and therefore the applicant is ineligible to immigrate to the United States.