Issues for U.S. Expats Filing a Form I-130, Immigrant Petition for Alien Relative

ExpatHere’s a reader’s question:

I am a U.S. citizen and have been living outside the U.S. for almost four years for study. I got married a year ago and would like to apply for my husband to immigrate. My question is, can I apply for him while I am outside the U.S.? I have not finished my study, and it is hard for me to go back to the U.S. just to file the forms.

Great question. This article will discuss the most typical (but not the only) path for a U.S. citizen living abroad to sponsor a spouse for permanent residence. The first step is to file the Form I-130, Petition for Alien Relative, with U.S. Citizenship and Immigration Services. The good news is that, no, you don’t need to fly back to the U.S. just to file. The second step is for your spouse to apply for an immigrant visa. This will involve an appointment at a U.S. Consulate abroad. As part of the application, you will typically need to file a Form I-864, Affidavit of Support, proving that you are “domiciled” in the U.S.

Where to File the I-130

For I-130s filed by a U.S. citizen (“petitioner”) on behalf of a relative (“beneficiary”) who is not physically present in the U.S.:

  • Petitioners “residing” in the U.S. should mail their petition to either the Chicago Lockbox or the Phoenix Lockbox, depending on their state of residence. See Direct Filing Addresses for Form I-130.
  • Petitioners “residing” abroad may file with the Chicago Lockbox. In the alternative, petitioners residing in a country with a USCIS office may choose to file and have their case adjudicated there. (Here’s a list of USCIS offices abroad). China, for example, has two USCIS offices. The USCIS Beijing Field Office accepts I-130s for petitioners residing in Beijing, Shanghai, Tianjin, Hebei, Jilin, and the Northeast (Heilongjiang, Jilin, Liaoning, and Shanxi). The USCIS Guangzhou Field Office has jurisdiction over the remainder of China. For petitioners with this option, our firm usually strategizes with the client to determine where filing the I-130 will be fastest and have the highest odds of approval.
  • Petitioners “residing” in countries without USCIS offices should normally also file with the Chicago Lockbox.
  • In the past, U.S. Consulates abroad in jurisdictions without USCIS offices routinely accepted and adjudicated I-130s but that service has been discontinued. Now, a Consulate can only adjudicate an I-130 where it “requires immediate processing due to exceptional circumstances.” In that case, the Consulate will contact USCIS to ask whether the Consulate may accept the case. Examples of exceptional circumstances include cases involving U.S. armed service members, medical emergencies, threats to personal safety, cases close to aging out, certain adoption cases, cases where the U.S. citizen petitioner has been given short  notice related to transferring to the U.S. or taking a new job there, etc. The petitioner’s place of residence is no longer relevant.

Note for that this purpose the term “residence” means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.  The USCIS offices in China don’t tend to philosophize about whether a U.S. citizen “resides” in the country or is just temporarily present as a visitor, student, etc. Instead, these USCIS offices focus just on whether the U.S. citizen has a residence permit, work visa, student visa, or other long-term official authorization permitting residence in China.

Proving the U.S. Citizen Is “Domiciled” in the U.S.

An applicant for an immigrant visa based on an approved I-130 is required to prove that he or she is unlikely to become a “public charge” in the U.S. The term “public charge” means primarily dependent on the U.S. Government for subsistence in the form of public cash assistance for income maintenance or institutionalization for long-term care at U.S. Government expense. This usually requires the U.S. citizen to file a Form I-864, Affidavit of Support (although some exceptions apply). The affidavit is the petitioner’s contract with the U.S. Government to provide support to maintain the sponsored immigrant at an annual income not less than 125 percent of the Federal poverty income line. In the contract, the sponsor also agrees to reimburse any federal or state agency that provides a means-tested benefit to the sponsored immigrant.

A key issue for expats is that to file the Form I-864 the citizen must be “domiciled” in the U.S.  The concept of domicile is related to residence, as defined above. The key difference between residence and a domicile is that only the latter requires an intention to remain in the place for the “foreseeable future.” For example, a student who attends an out-of-state college is resident in the dorm, but she isn’t domiciled there if she intends to return to her home state after graduation.

There are several ways to prove you are domiciled in the U.S.:

Arguing That You Are Temporarily Abroad but Domiciled in the U.S.

Here’s the State Department’s guidance to its officers about determining that an applicant is temporarily abroad but “domiciled” in the U.S.:

Some petitioners have remained abroad for extended periods but still maintain a principal residence in the United States (i.e., students, contract workers, and non-governmental organization (NGO) volunteers). To establish that one is also maintaining a domicile in the United States, the petitioner must satisfy you that he or she:

(1) Departed the United States for a limited, and not indefinite, period of time;

(2) Intended to maintain a U.S. domicile at the time of departure; and,

(3) Can present convincing evidence of continued ties to the United States.

Evidence that a trip abroad is temporary may include, for example, proof of your voting record in the U.S., proof of paying U.S. state or local taxes, proof of having property in the U.S., proof of maintaining bank or investment accounts in the U.S., proof of having a permanent mailing address in the U.S., proof that you are a student studying abroad, or evidence that a foreign government has authorized merely a temporary stay abroad.

There are also two specific situations where persons abroad temporarily count as domiciled in the U.S.:

Domicile for Permanent Resident with Approved Form N-470, Application to Preserve Residence for Naturalization Purposes

A permanent resident living abroad temporarily pursuant to the terms of an approved Form N-470, Application to Preserve Residence for Naturalization Purposes, is considered to be domiciled in the U.S. To file a Form N-470, a person must be physically present in the U.S. for one continuous year after being granted permanent resident status and must contemplate being abroad for more than one year for purposes of employment for certain U.S. employers, public international organizations, or religious organizations.

Domicile for U.S. Citizen Working Abroad for a U.S. Employer

A U.S. citizen living abroad qualifies as “domiciled” in the U.S. if his or her employment abroad meets the following requirements:

1. The citizen is employed by one of the following types of entities:

  • the U.S. Government;
  • an American institution of research recognized as such by the Attorney General
  • “an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof”;
  • a public international organization in which the United States participates by treaty or statute; or
  • is a minister, priest, or missionary; and

2. The citizen is “regularly stationed abroad,” meaning that he or she “proceeds abroad, for a period of not less than one year, pursuant to an employment contract or orders, and assumes the duties of employment.”

3. The citizen is living abroad “temporarily.” (This is a circular argument, isn’t it?)

Reestablishment of Domicile

If the sponsor is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the government by a preponderance of the evidence, i.e., providing “concrete evidence,” that the sponsor will establish a domicile in the United States on or before the date of the intending immigrant’s admission or adjustment of status.

USCIS and the State Department list several factors that may show an intention to reestablish domicile in the U.S.:

  • Accepting a job or “seeking employment” in the U.S.
  • Signing a lease, purchasing a residence, or making arrangements to stay in another’s home. (Just beginning a house search is not mentioned but may be relevant too).
  • Registering children in U.S. schools.
  • Opening a bank account or transferring funds to the U.S. or investing in the U.S.
  • Voting in U.S. elections.
  • Getting a U.S. driver’s license is not mentioned but the U.S. Consulate in Guangzhou has found it to be relevant in some cases.
  • This list of factors is not meant to be exclusive. A sponsor may have other relevant evidence of plans to reestablish domicile in the U.S.

In addition, evidence that you are severing similar ties abroad may bolster your claim that you are moving back to the U.S.

A sponsor’s stated intention to re-establish U.S. domicile must be judged by the consular officer to be credible. Credibility may be easier to establish in some cases than others. For example, if a spouse is immigrating, the officer may believe it’s natural for the sponsor to move to the U.S. to stay together. But a consular officer may doubt that a sponsor would necessarily move to the U.S. when a sibling or adult son or daughter immigrates. Where credibility is an issue, the officer may require more corroborating evidence. Here’s a sample request for additional evidence from a sponsor:

The petitioner must show that she/he spends a preponderance of time in the U.S. This time spent in the U.S. needs to be over a period of time. In other words, the petitioner must show that the petitioner is truly maintaining a residence in the United States, not just traveling for a couple of months at a time and then returning [abroad]. Although there is no time frame [required] to establish residence, it must be convincing evidence of continued ties to the United States and that the petitioner has, in fact, taken up residence in the United States. Evidence that the sponsor has established a domicile in the United States and is either physically residing there or intends to do so before or concurrently with the applicant includes, but is not limited to, the following: (1) opening a bank account; (2) transferring funds to the United States; (3) making investments in the United States; (4) seeking employment in the United States; (5) registering children in U.S. schools; (6) applying for a social security number; (7) voting in local, state or federal elections (8) leases, mortgages, utility bills, telephone bills, etc. established in the petitioner’s name. Provide a photo of the petitioner holding a current newspaper with the date clearly visible standing in front of a U.S. post office and color copies of all pages of the petitioner’s international passport[ ] with page numbers clearly visible.

Note that an immigration officer must later deny the intending immigrant’s application for admission to the U.S. or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision.

Closing Thoughts

For more information about the Form I-864, Affidavit of Support, please see the Affidavit of Support Help Center.

Good luck, always hire a competent immigration lawyer, and feel free to add follow-up questions in the comments.

138 Replies to “Issues for U.S. Expats Filing a Form I-130, Immigrant Petition for Alien Relative”

  1. My brother is a US citizen living and working in Korea. He still maintains US bank account and pays US tax each year. Does this “safely” satisfy the domicile element for him to file I-130 petition on my behalf? The issue for me is whether my brother can indeed file the petition on my behalf while he is in Korea.

    An added wrinkle is that while USCIS does have an office inside US embassy it does not accept mail application. I think this means that I-130 will need to be mailed to Chicago lockbox, and my brother will need make an appointment with US embassy with USCIS case number. I hope my understanding here is correct. Thank you.

  2. Jay:

    1. The USCIS Office in Seoul’s website states that it accepts I-130s only for “immediate relatives” (i.e., the spouse, parent, or minor child of a U.S. citizen). See here. So your brother can file a Form I-130 for you by mail through the USCIS Chicago Lockbox. He needn’t visit the U.S. Embassy in Seoul.

    2. The petitioner needs to be domiciled in the U.S. not later than when the beneficiary immigrates. In your case, you’ll be subject to a long wait to immigrate as the brother of a U.S. citizen–likely over 10 years. See the State Department’s Visa Bulletin here. So it’s irrelevant where your brother is domiciled now. Assuming that in about 10 years the law is the same as now, your brother will need to be “domiciled” in the U.S. at that time. Domicile means “residence” (principal, actual dwelling place in fact; i.e., where a person sleeps most nights) plus intent to maintain that place as a residence for the foreseeable future. So just keeping a U.S. bank account and paying taxes won’t be enough.

    Hope that’s helpful.

  3. I am a US citizen living and working freelance in a foreign country for the last 8 years. I married over 2 years ago my wife and we have a child together. I have a residence permit for the foreign country through marriage to my wife for the last 2 years. But now, I wish to move back to the US. I have already filed and gotten approval for my I-130, now I just need to get the paperwork together for my wife for the interview.

    in regards to the domicile question, i will attempt to argue “temporarily abroad”. I have the following documentation:

    state and local tax returns
    multiple bank accounts maintain with substantial cash assets
    “Doing Business As” official state business certificate
    US health insurance coverage letter for the entire time I was abroad
    Cable and Internet bill
    credit card bills
    driver’s license
    and a letter from father allowing my wife and child to live with them.

    all these documents addressed to the same address

    Is that enough?

  4. Paul N.,

    Just a few impressions. First, living abroad for 8 years seems awfully long to be “temporary.” There’s no hard and fast rule for how many years is temporary, but think about it this way:

    1. Did you have a specific, limited purpose for being abroad? The above-cited State Department rule looks for one’s purpose in being abroad (e.g., student, temporary employment, etc.). If you were temporarily employed abroad, this may be evidenced, for example, by an employment contract for a temporary period, or a letter from a U.S. employer assigning you abroad for a temporary period. It can also help if your salary is direct deposited to a U.S. account. In contrast, if you are treated by a foreign company as a regular employee, the job doesn’t seem so temporary.

    2. Do you have proof that throughout the time you were abroad you intended to return to the U.S. on a particular date or upon completion of a particular goal? For example, a letter by a U.S. employer temporarily assigning you abroad, stating that you would be transferred back to the U.S. on a particular date or on completion of a particular project. As the State Department rule says, to be “temporary” your purpose abroad must not be “indefinite.”

    3. Continued ties to the U.S.: You mention various ties to the U.S. Such ties are most convincing if they tend to show you will be returning to live in the U.S. For example, you mention that you have a “doing business as” business certificate. That would be most convincing if you have evidence that you have an active, ongoing business in the U.S. you intend to manage personally. You mention that you have cable and internet bills. That would be most convincing if you have a home in the U.S. where you’ve allowed someone else to live temporarily with the understanding that you will return to the U.S. to occupy the house on a particular date.

    In the end, you may find that instead of looking backwards to prove your stay abroad has been temporary, it’s easier to look forwards to prove that you will be reestablishing U.S. domicile. That will require, as mentioned above, “concrete evidence,” that the sponsor will establish a domicile in the United States on or before the date of the intending immigrant’s admission or adjustment of status. The most common evidence is a U.S. job you intend to take or a U.S. home you intend to occupy.

    Good luck.

  5. Thanks Gary for you reply.

    I’m self employed. So would all my previously mention evidence work if I were to just change my wording by saying I intend to reestablish domicile?

  6. My question is about proving I am domiciled in the U.S. for purposes of being an I-864 sponsor for my husband.

    I am in India on a 1-yr entry (X) visa. I’ve been here 5 months so far. Does the fact that my visa is only for 1 yr proof that my my stay abroad is merely temporary?

    Besides that, I have maintained my U.S. driver’s license, voter registration status showing “active”, US cell phone account, and checking account.

    I also have a notarized letter from my parents stating that I’ll be living there with my husband upon our arrival. (I lived on my own for 8 years, but with my parents for the last 2 years before filing the papers for my husband and then coming overseas, so I’m afraid that the consular officer won’t accept their letter. Do you think that would be the case?)

    Thanks for your advice.

    1. Jill,

      The Department of Homeland Security say an I-864 sponsor you can prove U.S. domicile either by showing that her stay abroad is temporary or by showing that she’ll re-establish U.S. domicile not later than when the sponsored immigrant enters the U.S.

      In practice, these distinctions often meld together. A simple way to look at it is, what arrangements do you have in the U.S. for a job (or school or as a homemaker) and a home. If those arrangements are credible, the consular officer will find that you meet the U.S. domicile requirement. You’ve mentioned that you have a letter from your parents stating that you and your husband will live with them. It really doesn’t matter where you lived before you went abroad, so long as the officer believes that you will live with your parents upon returning to the U.S.

      So I think you’ve got the U.S. home covered. You need to focus on what evidence you’ll submit about what you’ll do for a job (or school or as a homemaker). Then the other stuff (driver’s license, voter registration, cell phone, checking account) is just extra evidence to make sure the consular evidence is convinced.

      1. Thank you for the quick reply and clarifying for me!

        If I am unable to secure a job prior to leaving, will correspondence confirming interview dates and times in the US be the next best thing? Or evidence of Skype interviews having already taken place?

        Thank you!

    1. Are you referring to a petitioner (U.S. citizen or permanent resident) or the beneficiary (foreign national seeking to immigrate) being on probation, and for what crime?

  7. “…cases where the U.S. citizen petitioner has been given short notice related to transferring to the U.S. or taking a new job there, etc.”

    Tried to explain to the consulate that I have pending job offers, but I cannot accept work back home due to the backlog. Their response:

    Dear Sir,
    While we can certainly understand your frustration and concern, however, we regret that no action can be taken here until we are in receipt of an approved I-130 or I-129F for your wife.
    Regards,
    Immigrant Visa Unit
    Consular Section

    Scratch that one right off the list! They did not contact USCIS, because they responded within an hour.

  8. I am a US citizen by birth who has not lived in the US for five years. I am married to a non-US citizen and we reside and work overseas and I probably won’t be moving to the US permanently in the near future. I have a six-month old baby. (I haven’t transmitted citizenship to our baby because I don’t have 5 years of physical presence in the U.S. and don’t have U.S. citizen parents.) Can I apply for a green card or citizenship for her?

    1. Sounds like your saying your child didn’t acquire citizenship automatically at birth because you hadn’t previously spent 5 years in the U.S, at least two of which were after age 14.

      Then, for your child to get a green card, the challenge I see is that you don’t meet the requirement of being “domiciled” in the U.S. To be domiciled in the U.S., you generally need to (a) have your main home–the place where you sleep most nights–in the U.S., and (b) intend to keep your home in the U.S. for the foreseeable future. How do you plan on dealing with the domicile issue?

      As to citizenship for your child:

      1. The child can meet the regular requirements for naturalization once reaching age 18;

      2. If you move back to the U.S. permanently, then under the Child Citizenship Act, the child qualifies for citizenship as a child with (1) citizen parent, (2) who is under age 18, and (3) is currently residing permanently in the U.S. in the legal and physical custody of the U.S. citizen parent; or

      3. If you finish your 5 years of physical presence in the U.S. now–yes, after the child is born–then move abroad again, under the Child Citizenship Act, the child may qualify for naturalization because (1) the child will be residing abroad in your legal and physical custody; (2) has 1 citizen parent, (3) the citizen parent has been physically present in the U.S. for at least 5 years, at least 2 of which were after the age of 14; (4) the child is under age 18; and (5) the child can enter the U.S. temporarily for the naturalization interview and oath–note that this doesn’t work if the child is a permanent resident.

      For more about citizenship options, see our Quick Reference to Citizenship.

  9. Hi Gary,
    I want to file I-130s for my parents. However as luck would have it my husband and I are moving to Singapore for 2+ years (his job). I would like to start the I-130 application but am not sure whether to file for it here in the USA with 1.5 months to go or to file it in Singapore.

    Our household income is sufficient to support my parents. Here is my situation:

    1) I am self-employed working on a startup that is registered here in Philly.
    2) I will be filing taxes every year, although my husband will not have to given he is an Indian citizen (currently no green card).
    3) We have no residence here in the US. We have been renting up until now.
    4) We will move back in two years however there is a possibility that the stay may be extended for a few more years.

    Here are my concerns:
    1) Will I be able to prove that I am domiciled in the US?
    2) What would be needed to prove that I am domiciled besides paying taxes, bank accounts, a Philly registered company ?
    3) Should I file while I am in the US or in Singapore.

    Any insights and help on this matter is greatly appreciated!
    Divya

    1. Hi Divya,

      What are your goals related to timing? In particular, are you planning to have your parents move to the U.S. when you move back in 2+ years?

      You can file now with the appropriate USCIS lockbox. USCIS has no office in Singapore where you could file, and you could only file with the U.S. Embassy in Singapore in “exceptional circumstances,” as explained above.

      As to the requirement to prove you are “domiciled” in the U.S., you need to prove that only at the time of your parents’ immigrant visa interview and entry to the U.S., not when you file the I-130. To prove domicile, you can prove either that you are in Singapore only “temporarily” (the nature of your husband’s employment contact or international assignment may be help prove “temporariness”) or that you intend to re-establish U.S. domicile not later than when your parents immigrate.

      1. Hi Gary,

        Sorry about the delay in responding to you! I really appreciate your quick feedback. I had a clarification. Please bear with me.
        So as per your response it seems I can file the I-130 (under the special circumstances in Singapore). My parents do not plan to move immediately however if I do file the 1-140 and all goes well, won’t an interview be scheduled? It seems the process is fairly quickly and so I would expect the interview to be scheduled before I move back. It is at that point that I would have to prove my ” temporary residence” in Singapore correct? I guess the next question would be how to make sure it is airtight that there is no case for rejection.

        Thanks again!
        Divya

        1. Divya:

          Yes, as stated above, at the time of your parents’ immigrant visa interview, you’ll need to prove you are “domiciled” in the U.S. To prove domicile, you can prove either that you are in Singapore only “temporarily”or that you intend to re-establish U.S. domicile not later than when your parents immigrate.

          These are very fact-specific issues, so there’s no one-size-fits-all answer. An example of a case where a person can prove he left the U.S. just “temporarily” would be if he had a temporary employment assignment abroad, the terms of the assignment include transfer back to the U.S. at the end, and he kept his U.S. house while abroad. An example of “re-establishing” U.S. domicile would be, for example, evidence submitted at the time of the interview that the applicant is selling her house abroad and buying a house in the U.S. and/or quitting a job abroad and taking a job in the U.S.

  10. Thank you very much for this page, Gary — it is hard to find this information elsewhere.

    My wife and I are US citizens living in Saudi Arabia. We claim residence in Saudi Arabia on our tax forms, and have for the past 4 years. We don’t currently plan to move back to the US in the immediate future.

    We would like to file a petition for my wife’s mother to immigrate to the US. Is it possible to do so? The I-864 instructions seem to say that it’s not since (a) my wife (the petitioner) must be a sponsor; and (b) the sponsor must be domiciled in the US.

    Would it be enough if someone who resides in the US were to be a joint sponsor?

    Since we still pay taxes to the US government, it seems that we ought to have the right to file a petition.

    1. David:

      I’m going to give you a lazy answer–in other words, this is just speculation, and I haven’t researched the legislative history to understand the intent of the drafters of the “domicile” requirement. First, the overarching purpose of family-sponsored immigration is family unity, so there’s no widespread support for the idea that foreign nationals should be allowed to immigrate when their U.S. citizen or permanent resident sponsors are abroad. But second, and more importantly, the idea behind the Form I-864, Affidavit of Support, is that it’s a binding contract that the sponsor will provide support to the immigrant as necessary, and that both the immigrant and the government have the right to sue if the sponsor doesn’t provide needed support. If the sponsor is abroad, it would be tough to sue (even the first step of service of the summons and complaint outside the U.S. can be tough) and to enforce a judgment. We’d learn more by researching the legislative history, but that’s my guess.

  11. Hello Gary,

    Thanks for keeping us informed. Very resourceful website. Appreciate it.

    Residing in foreign country with family for last 5 years. Spouse of a US Citizen. Green Card (10 yrs) expired 3 yrs ago. Been out of country since 2009. Tried for SB-1 (returning resident immigrant visa) at local embassy but rejected on the grounds of “reason not beyond control”.

    Can my Wife reapply for I-130 from foreign country or does she need to be back in US and domiciled there. Will I be able to travel with her and if so on which visa. Can I apply for a visitor visa after surrendering GC? Would appreciate your feedback.

    Regards.

    1. A,

      As to whether your U.S. citizen wife can file a Form I-130 for you when she lives in a foreign country, the above article addresses that specific point. A U.S. expat can file a Form I-130 for a spouse–sometimes by mail to the U.S., sometimes with a USCIS office overseas, and sometimes with a U.S. Consulate or Embassy overseas.

      The “domicile” requirement kicks in later. You can’t get a green card–which is for purposes of residing in the U.S.–unless your spouse takes up domicile in the U.S. not later than you. This too is detailed above.

      Now, I may confuse you: If you’ve been abroad for 1 year straight, your permanent resident card (I-551) is not a valid entry document to return to the U.S. The consular officer refused to give you the SB1 returning resident visa as an alternative entry document. However, if you can get to a U.S. port of entry, a Customs and Border Protection (CBP) officer may be willing to waive the entry document requirement if there is “good cause” to do so and you haven’t abandoned your LPR status by making a non-temporary trip abroad. For details about this option, see “Green Card Holders Who Stay Abroad Over 6 Months Risk Abandonment” at http://lawandborder.com/risk-abandoning-green-card-abroad-6-months/.

      And, yes, filing a Form I-407, Abandonment of Lawful Permanent Residence, may be a good option for you since you can re-immigrate later when your husband is ready to move back to the U.S. with you. We assist clients in filing the Form I-407 and then applying for a U.S. B1/B2 (visitor for business or pleasure) visa, unless they qualify under the visa waiver program for nationals of certain countries. A key question about B1/B2 visa eligibility is whether your can prove strong ties abroad that will compel your return after a brief stay in the U.S. This issue is discussed in our article, Proving Nonimmigrant Intent for a U.S. Visa.

      Regards,
      Gary

  12. Ati,

    A sponsor who wants to prove she is “reestablishing” U.S. domicile needs to do so not later than the intending immigrant’s admission or adjustment of status.

    Or, if you have evidence that your stay abroad has been “temporary,” then you don’t need to “reestablish” U.S. domicile because you never lost it.

    Generally I advise clients to choose whichever argument is strongest and easiest to prove based on their evidence.

    1. Hi Gary-

      I have several questions:

      1. Should I hire a lawyer to help?
      2. Should I have received a decision from USCIS on the I-130 I’ve filed?
      3. Should my spouse file a Form I-765, Application for Work Authorization?
      4. How can I meet the “domicile” requirement as a Form I-864 sponsor?

      I am a US Citizen who, until July 2012, resided in the US. Just before that, my British/South African significant other’s student visa ran out so she left the country to Canada, which gave us the ability to live and work. It was never our intention to stay there–but we wanted to be close to my aging parents who resided in the US.

      We legally married in Nov., 2013 in Washington state, and I filed an I-130 in January 2014. We enter the US fairly regularly with our US-approved Nexus cards.

      Last month, I sold my home in the US but had started the sales process before I left the US (because it was sitting empty) but have all my 401Ks, Savings and investments in the US. I also have a car there, my parents live there and I continue to file US taxes and vote. I only left because I wanted to be with my spouse. I have every intention of returning.

      Lala

      1. Lala,

        I do suggest you consult with our firm or another competent immigration lawyer.

        Your question about whether your spouse should file a Form I-765, Application for Work Authorization, suggests that you may not have resolved a threshold question that needs to be answered before beginning the immigration process. Specifically, assuming approval of the I-130, should your spouse (a) apply to a U.S. consulate abroad for an immigrant visa or (b) file a Form I-485, Application to Adjust Status. (The I-765 can only be filed in the latter situation, but not all applicants qualify to use that option). Your I-130 should have identified your choice in this matter, and if it was filled in wrong, remedial steps may be necessary.

        So why not consult with an attorney about that threshhold issue? The attorney can also address your other questions.

  13. I married a Canadian and moved to Canada 9 years ago. My husband had children from a previous marriage; thus the reason that we decided to reside in Canada. I have gained permanent residence in Canada. As the children are growing older, we’d like to move back to the USA in the next 2 to 3 years. As I’m considering my options, my main question is, do I need to move back to the US, get a job and provide confirmation that I’m “domiciled?”

    I’d prefer to stay in Canada with him and file from outside the USA. It would be preferable to remain together, get approved and then sell our home here, etc.

    As for getting re-established in the States, we are both employable and my parents would help us out by giving a place to stay until we purchased something back home.

    1. Jen: No, you don’t need to move back to the U.S. before your husband immigrates. The sponsor just needs to prove that she will re-establish domicile not later than when her husband immigrates. It’s common for spouses to travel the U.S. together. We have had a number of cases where consular officers were satisfied by just a letter from the sponsor’s relatives that the couple would be living with them. Of course, if additional helpful evidence of intent to reestablish domicile is available, that should be submitted as well.

  14. Hi Gary

    First, thanks for this blog, it clarifies many things.

    I intend to immigrate ‘again’ on CR-1. Previously I immigrated 5 years ago but did not live in the US permanently and relinquished my Green Card. However, now we would like to move permanently and my petition has already been approved.

    Our plan is that I (as immigrant) should go to the US first and then my family should follow in a couple of months after I have secured a job and a house.

    My question is whether I can travel to the US while my wife stays abroad for a while?

    1. Riz,

      Whether the immigrant can go to the U.S. before the sponsor depends on how the sponsor proved domicile. As mentioned above, there are 4 ways:

      (1) Sponsor is temporarily abroad but domiciled in the U.S.;
      (2) Sponsor has approved N-470;
      (3) Sponsor works abroad for U.S. employer; and
      (4) Sponsor is reestablishing U.S. domicile.

      Only in the 4th way is the timing of the sponsor returning to the U.S. important. The sponsor must return to the U.S. to reestablish domicile not later than when the sponsored immigrant enters for the first time.

  15. Hello Gary, my husband is a us citizen and we have been married for 8 months. He is currently filling for the I-130. My question is can I file for a tourist visa or a permit to be in the US while waiting for a approval? I am currently over seas. What other options do I have??

  16. Hello Gary I am so grateful for this forum. My wife and I have been trying to find info but nothing really useful. We are a same-sex couple married for 2yrs and 6mths. My wife is a U.S. citizen. After we got married in 2011 (in N.Y) she gave up her job and apt to come be with me in the Bahamas. She does not have residency here and cannot work. She is basically here with me on extended visits of a maximum 3 months before she has to return to the U.S. in order to not over stay her time permitted here in the Bahamas. She would go home to her mom’s or sister’s house in the U.S. for a few weeks to a few months then return to the Bahamas and do it all over again. When we got married I could not benefit from immigration sponsorship so this seemed like the best way to spend most of our time together. Now that I am able to she wants to file a petition for me. We would like to know how best to go about doing this (a. outside the U.S. and (b. while in the U.S. What will be the pros and cons of each? Does she need to prove domicile even though she is not even eligible for work or residency here (she’s basically on long visits)? If so by what point during the process will she need to prove this? Shes still maintains a bank account, driver’s licence and credit card. Will it be a problem because there is not much money in the account? She also has all her stuff in storage which she pays for every month. We would like to file the I-130 pretty soon as we would like to settle and live a normal life in the U.S. Any help you can offer us will be greatly appreciated. Thanks in advance.

    1. Hi,

      The default path is for your U.S. citizen wife to file a Form I-130 on your behalf, after which you can apply for an immigrant visa at the local U.S. embassy or consulate.

      Typically, it’s not an answer for you to get a U.S. visitor’s visa then enter the U.S. for purposes of applying for your green card there. See our article, Proving Nonimmigrant Intent for a U.S. Visa.

      Given the evidence you cite, it seems pretty clear that your wife can prove U.S. domicile on the basis that her absence has been temporary (because of DOMA, which has now been ruled unconstitutional). Her U.S. domicile just needs to be proven near the end of the process, when the Form I-864, Affidavit of Support, is filed.

      You may want to consult with an attorney to decide whether this “default” path I’ve laid out here makes sense for you or whether some other strategy is a better fit for your situation and goals.

      1. Thank you very much Gary. Your response to the various questions here has proven to be most helpful and informative.

        1. Her wife can prove US domicile then she doesnt need to go back to us to file but she doesnt have any income from job. How can she can sponsor her girl friend come to us?

  17. Hi there,

    I am a dual citizen of Canada and USA, having been born in the US by Canadian parents, moved to Canada 2 days after birth.

    I would like to petition to move to the US with my Canadian husband and 2 young children. My question is, can I file the I-130 forms for them while living in Canada? I have never lived the US, but intend to make this our “forever home.” Is there a way to prove domicile when not in the US AND having never lived / worked there??

    Feeling confused and discouraged that this move is even possible 🙁

    Thank you so much!

    Lianna

    1. Lianna,

      Read the above section on “Reestablishment of Domicile.” If the sponsor (you) is not domiciled in the United States, the sponsor can still sign and submit a Form I-864 so long as the sponsor satisfies the government by a preponderance of the evidence, i.e., providing “concrete evidence,” that the sponsor will establish a domicile in the United States on or before the date of the intending immigrant’s admission or adjustment of status.

  18. Hi Gary,

    Thank you so much for your most insightful blog. I have a question regarding the I-864 that I filed recently.

    Both my husband and I are U.S. citizens, who currently live in the U.S. I recently filed I-130 and I-485 concurrently to adjust my alien father’s status in the U.S. Along with it, I filed I-864 as the main sponsor and my husband filed I-864A as my household member to sponsor for my dad’s AOS, because I myself don’t meet the income requirement as a homemaker.

    My husband just got an excellent job offer from overseas, which will pay him more than his current salary in the States. We are thinking of taking the offer. It means that my husband will start working overseas in a few months.

    How would this move affect my pending I-130 and my father’s pending I-485? We would like to convince the USCIS that our domicile remains in the U.S. regardless of my husband’s employment abroad. We own a rental property in the U.S., which we don’t intend to sell any time soon. We’ll continue to pay U.S. taxes in the future years. We could keep a permanent U.S. address by extending our lease or keeping our rental property for our own use to strengthen the evidence for our U.S. domicile, if it is necessary to do so. We have checking, savings and investment accounts in the U.S. We will do our best to keep our driver’s licenses valid in the States.

    Will all the above evidence be sufficient to prove our American domicile, or at least my own domicile in the U.S., during an interview for my father’s AOS, if an interview is required? Or would the sheer fact that my husband will be employed overseas disqualify us as sponsors due to the U.S. domicile requirement? If my husband’s foreign employment disqualifies him as a joint sponsor, is there any way for me to convince the USCIS that I myself still lives in the U.S. and am able to sponsor my dad singlehandedly with my own assets to supplement my insufficient income? What kind of evidence would I need to provide if things get to that point? Will I have to live in the U.S. most of the time and be separated from my husband while he’s working overseas?

    Also, if my father’s AOS is approved in a few months, and then my husband and I move overseas, will my dad run the risks of losing his permanent residence because his sponsors will no longer be living in the States? It’s worth noting that my dad plans to continue to live in the U.S. by himself, and that my husband’s income abroad will in fact go up instead of down compared to what it is now. Alternatively, would the USCIS leave green card holders alone once they issue them the green cards?

    Thank you so much for your time! I truly enjoyed reading your blog!

    Best regards,
    Cindy

    1. Cindy:

      Great question, but it doesn’t lend itself to answer on a blog because the answer will rely on the totality of the facts, more than we can review here–you may individualized legal advice to decide on a strategy. For example, you mention that your husband may take a job overseas, but without knowing more about the terms of the job and your plans, that’s not enough for me to predict whether USCIS will see your home overseas as a “domicile” (in that you plan to remain there for the foreseeable future) or just a temporary residence.

      Your idea of delaying your move overseas may be worth consideration. The fact that your husband has moved overseas wouldn’t terminate your domicile in the U.S. Under the law, you don’t establish a new domicile until the moment you arrive in the new place with the intent to keep that place as your residence for the foreseeable future.

      And no, if your father is granted LPR status then you move overseas, that won’t put him at risk of losing LPR status. In other words, the I-864 sponsor doesn’t have an ongoing obligation to be domiciled in the U.S. after the sponsored immigrant’s case is approved. (But note that if you have moved overseas and then USCIS grants the LPR status in error, USCIS could in theory revoke his LPR status at any point in the future on the basis that it was granted in error).

      1. Thank you so much, Gary! As always, your insights are extremely helpful for the readers of your blog, myself included!

        Best,
        Cindy

  19. My dad is a US citizen but hasn’t been to the US for decades. Can he still fill the I-130 form for me? He doesn’t have a house or address in the US.

    1. Edward: The requirement is that the petitioner must re-establish domicile not later than when the sponsored immigrant is granted permanent resident status. So it’s fine if the petitioner isn’t currently domiciled in the U.S.

  20. I have dual citizenship in the U.S. and Saudi Arabia. Now, I’m a student in Canada, but I plan to move to US once I finish my master degree with my husband. How can I prove domicile for purposes of his immigration?

    1. See the above discussion of “re-establishment” of U.S. domicile. Don’t let the title mislead you: it’s not necessary to prove you were previously domiciled in the U.S.

  21. Hello Mr. Chodorow,

    My wife, with dual citizenship for US and Belarus, adopted a child in Belarus as a Belarusian. She is near completion of the two-year legal/physical custody rule period. We recently heard of the nightmare time period for the I-130 visa process. You mentioned that the I-130 may be filed for certain adoption cases in U.S. Consulates abroad in jurisdictions without USCIS offices. Would this be the case in our situation?

    Thank you,
    Mike

    1. Mike: I frankly don’t know the answer. The USCIS Moscow Field Office has jurisdiction over U.S. immigration matters in Belarus (as well as Armenia, Azerbaijan, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Russian Federation, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan). But they say that they only accept I-130s from U.S. citizens living in Russia. http://www.uscis.gov/about-us/find-uscis-office/international-offices/russia-moscow-field-office. The U.S. Embassy in Minsk states that “Petitioners who do not have a residence in the U.S. should contact the embassy at ConsularMinsk@state.gov for guidance” about where to file the I-130.http://minsk.usembassy.gov/immigrant-visas.html.

  22. Hi Gary,

    Thank you so much for your advice on this blog.

    I’m confused on which is applicable to my case:
    – Whether I’m living abroad temporarily, or
    – Whether I intend to reestablish domicile in the US.

    I’ve lived outside the US since 2008, first because of an international study program, and then to live with my parents who are expats living in the middle east. This is where I met my husband. We got married a year ago and I still live in the middle east with him. We are both expats in the country in which we reside. I am here on a non-immigrant visa that does not allow me to work.

    We both intend to move to the US once his immigration comes through.

    All the while I’ve been abroad, I’ve maintained:
    – a valid drivers license
    – an active voter registration
    – a US bank account
    – permanent and mailing address in the US

    I also currently have:
    – a car title in my name
    – active car insurance
    – a letter from my sister stating that my husband and i will be staying with her in the US (at the same address listed on my drivers license, voter registration, and bank account)

    Do you suggest that I put the US as ‘country of domicile’ and try to prove how I’ve maintained that Domicile, or that I put the Middle Eastern country in which I reside as the ‘country of domicile’ and give supporting evidence of how I plan to re-establish domicile?

    Thanks!

    1. Farrah,

      You say you’ve “lived” abroad since 2008. As a result, you may well “reside” abroad. For this purpose, the term “residence” means the place of general abode … [your] principal, actual dwelling place in fact.” In other words, most nights when you lie your head down, it’s on a pillow outside the U.S. There’s some room–but not a lot–for arguing about where your residence is. Residence address is listede in the I-864 at Part 4, item 3.

      Your foreign residence abroad becomes a “domicile” if at any point you intend to remain in that place “foreseeable future.” Country of domicile is listed in Part 4, item 5.

      You may argue that you never intended your foreign residence to become a “domicile,” but it may be extremely hard to prove that over the years you have been abroad as a student, living with your parents, and then living with your husband you never for a moment intended to remain abroad for the “foreseeable future.”

      Luckily, you don’t have to prove that difficult point. You can concede that your domicile is abroad and then prove that you intend to reestablish domicile in the U.S. not later than your husband. Discuss this strategy with your immigration lawyer to be sure you understand its implications.

  23. Hey Gary,

    I am a US Citizen and will be moving to Canada on a 2-year assignment. My offer letter clearly states I will be moving back to Minnesota in 2016 upon completion of the assignment, and my payroll will be based in Minnesota for these 2 years. My spouse is an Indian citizen. My plan is to file an I-130 once she arrives in Canada. Where should the I-130 be filed? Is there any way she could visit the US after the I-130 has been filed but before the immigrant visa is approved?

    1. Barring “exceptional circumstances” mentioned above, the I-130 should be filed through the Chicago Lockbox if you reside in Canada. You can file the I-130 at any time, regardless of whether your wife has arrived in Canada. A more interesting question to discuss with your attorney is whether the strategy should be for the I-130 to specify that she’ll apply for the immigrant visa at a U.S. Consulate in Canada or India. This will turn on several factors, such as costs for travel and odds of success given the specific facts of your case.

      As to whether she can obtain an B visa to visit the U.S., see the discussion of “dual intent” in Proving Nonimmigrant Intent for a U.S. Visa

  24. Hi, I am a British citizen and my husband American we have both been teaching in China for the last five years. We are preparing documents for the affidavit of support. However we are finding it difficult to find evidence of re- establishing domicile. So far we have:
    -A letter from my spouse’s parents saying we will live temporarily at their house whilst we organize permanent accommodation,
    -Emails from real estate agents asking about apartment availability,
    -Evidence of actively seeking employment- daily job alerts from monster.com, interview offers, emails to potential employers.
    -My husband’s valid driving licence.

    Is this evidence sufficient? (We tried to open a bank account online and over the phone this evening but were told that we can’t as my husband isn’t physically in the US.)

    Thanks
    Lindsey

    1. Lindsey: There’s no magic number of pieces of evidence required for an I-864 sponsor to prove he intends to re-establish U.S. domicile not later than when the sponsored immigrant enters the U.S. with the immigrant visa.

      By analogy, there’s no magic number of witnesses for a criminal defendant to prove an alibi. One may be persuasive, or ten may be perceived by the jury as liars.

      The officer may well be persuaded by the evidence you list if the evidence is clear, persuasive, and there is no countervailing evidence.

  25. My wife’s immigrant visa has been denied by a Consul at Embassy of USA, Bogota, Colombia, because according to him I do not have a domicile in the USA. He said that during the year beginning March 5, 2013, my domicile was abroad. It’s true that I’ve been working abroad. But I showed the consular officer my ties to the U.S. like a voter ID card, driver’s license, concealed weapon or firearm license, and evidence I was a juror in a Florida trial.

    If I am not wrong, the Law says that I can decide which place is my domicile and what time I choose to abandon it, so I do not understand why the Consul insists to impose on me his presumption that I abandoned it and I must to re-establish it in USA. Also, the Consul is acting against USA Constitution and Law because of my domicile is a first amendment choice of political affiliation (our choice of domicile is a strictly political and not legal matter).

    Why my wife’s resident visa was denied? What am I to do?

    1. Lucho,

      I’ve heard individuals claim that it’s unconstitutional for the federal government to collect income tax from individuals without their consent. The underlying idea seems to be that only persons “domiciled” in the U.S. are subject to tax and that domicile requires “consent” of the individual. Such claims seem to be outside the political mainstream, but more importantly for our purposes, such claims have not found support in the Federal courts.

      The Congressional statute that requires the Form I-864, Affidavit of Support, is INA 213A. It requires that the sponsor be “domiciled” in the U.S. The concept of domicile is related to residence, which is defined by the Immigration and Nationality Act as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” INA 101(a)(32). You can think of your residence as the place where you sleep most nights.

      The key difference between residence and a domicile is that the latter requires an intention to remain for the “foreseeable future.” 8 CFR 213a.1. For example, a student who attends an out-of-state college is resident in the dorm, but she isn’t domiciled there if she intends to return to her home state after graduation.

      If you work abroad on other than a temporary basis–especially if your not working abroad for a U.S. employer–then you may well count as domiciled abroad.

      So, if the officer determined that you are domiciled outside the U.S., it’s possible to challenge that determination if it’s erroneous, or you can prove to the Consulate that you intend to “reestablish” domicile in the U.S. not later than when your wife immigrates, as discussed above.

  26. Also, you should know that I’m employed by UNESCO and my wife showed the consular officer my UNESCO international professor identity card.

    1. Lucho: Based on your employment for UNESCO (a qualifying public international organization), you may have an argument that you retain U.S. domicile if you can prove you are “regularly stationed abroad” and living abroad “temporarily.” The latter may be difficult to prove, in which case you may need to fall back on the approach of proving that you intend to re-establish U.S. domicile not later than when your wife immigrates.

  27. Hi Gary,
    Thanks for all the great information so far. I have a question about re-establishing domicile. Would it be better or worse to have applied for/been accepted to a school in the US at the time of my repatrioting to the US with my wife, for whom I am the sponsor. We will be living with my mother and her husband for a few months until the beginning of the school year. At least, that’s the plan. Would that pose problems?

    1. JWhite: Sure, documentation showing that you have registered for school in the U.S. and/or paid tuition could serve as evidence that you are re-establishing U.S. domicile. Notice that above the State Department says that registering one’s child in U.S. schools is such evidence. But registering yourself is too.

  28. Hi Gary,
    I have U.S. citizenship. I am from Ireland and have never lived in the States. My son, who is 20, wants to apply for a green card. I am aware that I will have to re-establish domicile in order to petition for him. My cousin in New Jersey will provide me with a letter stating i can reside with her. Will this be acceptable?

    1. J Tobin,

      Like most matters before a U.S. Consulate, proving that you intend to re-establish domicile has to be done to the consular officer’s satisfaction. A consular officer reviewing a letter from your cousin stating that you intend to live there may wonder, (a) where will your son live? (b) does the cousin have enough room in the house for both of you? (c) if you were working abroad, will you quit that job? (d) what do you plan to do in the U.S.? Etc. The totality of the facts need to persuade the consular officer that you intend to re-establish domicile. There’s no one-size-fits-all answer since the specific facts of your life are relevant.

  29. Mr. Gary, as you know, my wife’s immigrant visa was denied by the U.S. Embassy at Bogota, Colombia. I want to sue. What’s my next step?

    1. Lucho: Hire a knowledgable immigration lawyer. (There may be other solutions with higher chances of quicker success than a lawsuit. The lawyer can help you strategize).

  30. Hi Gary,

    I am a U.S. Citizen working at a school in Quito, Ecuador. My husband and I married in March of 2013, and he is an Ecuadorian citizen. In a few years, we plan on moving back to the States. What’s the timeframe for him to immigrate? For example, when should I file the I-130? If he is issued an immigrant visa, how long is it valid for entry to the U.S.? Is there anything we can do now to begin preparing? Sorry for all the questions, and thank you so much for your help!

    1. Sarah,

      I always recommend at least consulting with an immigration lawyer, and sooner rather than later. Ideally, that consultation should take place before marriage, in order to determine whether the foreign spouse will be eligible for a green card to settle in the U.S. in the future.

      There’s no harm in filing an I-130 several years in advance of the proposed date for moving to the U.S. An approved I-130 doesn’t expire. One issue to watch is that having filed an I-130 is evidence of immigrant intent that sometimes (but not always) can lead to denial of a nonimmigrant visa for purposes of visiting the U.S. See Proving Nonimmigrant Intent for a U.S. Visa.

      Further, there’s usually no harm to using the approved I-130 to apply for an immigrant visa well in advance of the proposed date for moving to the U.S. The immigrant visa is valid for up to 6 months, depending on the validity of the your documents (passport, medical exam, police clearance letter, etc.) Plus, it’s common to get the immigrant visa, go to the U.S to establish permanent resident status, and then return to one’s home country for purposes of wrapping up one’s affairs (selling a house or business, terminating employment, completing the school year, etc.)

      One reason to begin the process well in advance is that some applicants are subject to prolonged “administrative processing” before issuance of the visa. See Administrative Processing: A Black Hole for U.S. Visa Applicants.

      Hope that’s helpful.

      1. Hi Gary,

        Thank you very much for your great tips!

        I am a US citizen currently living abroad and my wife is a foreign national. We are considering moving to the US sometime in the future, but we are not certain of the date yet. You mentioned to Sarah above that there is generally no harm in filing an I-130 years in advance, so we are considering doing just that. We have read that after the I-130 is approved, the application is forwarded by USCIS to the NVC in 90 days. How can we delay the process further? Is it possible to ask USCIS not to forward the petition? Or do we need to speak with NVC so that they don’t proceed with it? Is there another point where the process can be temporarily stalled without negative consequences?

        We are afraid to start the process and have it finish before we are ready to make the move.

        Thank you very much!
        Daniel

        1. The NVC won’t process your case until you pay the required fees and submit the required documents. Besides, even if you complete NVC processing, you can schedule and reschedule the immigrant visa appointment at the Consulate, making sure not to unintentially abandon the immigrant visa application by falling out of touch with the Consulate for over 1 year straight.

  31. Hi Gary– My wife’s I-130 has been approved. The NVC will be sending us a package for further instructions. My wife and I both live in Canada, but will be re-establishing domicile in the US once she gets approval at her interview in Montreal. Any recommendations for us to when a good time is to sell our Canadian home and buy our American one? I have already gotten pre-approval for a mortagage, got a real estate agent, and know exactly what area we are going to live in the US.

    1. Conservative advice is to not quit a job, sell a house, or liquidate a business abroad until your wife has actually been admitted to the U.S. as a permanent resident. (Similarly, defer starting a job, buying a house, or establishing a business in the U.S.) That’s because there’s always some level of risk that permanent resident status won’t be granted.

      If you’re worried about proving that you intend to re-establish domicile in the U.S., it sounds like you’ve already got good evidence with the pre-approval for a mortagage and real estate agent.

  32. Hello Gary,

    I am a U.S. citizen filing an I-130 petition for my son who is under age 21, who is applying to go college in the US. We currently live overseas. I understand that in order to qualify as a sponsor to file the Form I-864, Affidavit of Support, I need to reestablish domicile in the US. I’ve taken some steps to do so, such as opening a U.S. bank account. My plant is to live at my brother’s house. When do I need to travel to live in the US? Can I travel with my son after his visa is issued? Also, after he obtains his permanent resident status, can I move back abroad again while my son studies in the US?

    Thank you.

    1. Mohammed,

      Your “domicile” for I-864 purposes is your “principal, actual dwelling place in fact” where you intend to remain for the “foreseeable future.”

      As mentioned above, to meet the domicile requirement for I-864 purposes you have the option of showing that you will establish a domicile in the United States on or before the date of the intending immigrant’s admission. So, yes, you can wait to enter the U.S. together with your son, so long as you have sufficient evidence to prove you intend to re-establish domicile in the U.S. at that time.

      But you also ask a tougher question: can you move back abroad again while your son studies in the U.S.? One possible reading of your question is that you intend to keep your “domicile” abroad, only temporarily residing in the U.S. in order to help your son immigrate, then returningto your main home abroad for the forseeable future. If this is the case, you don’t meet the requirement of re-establishing domicile in the U.S., so you don’t qualify as a sponsor for I-864 purposes.

      You can imagine that there are sometimes close calls as to where one’s “domicile” is located. But if you want to take an aggressive interpretation of the law as applied to the facts, you may want to seek legal advice in order to maximize the odds that your son’s visa will be approved and to minimize potential vulnerability to civil and criminal charges that you’ve made a misrepresentation to the federal government.

      If you really don’t intend to re-establish domicile in the U.S., you may also want to seek legal advice about your son’s eligibility for an F-1 student visa.

      1. In such a case it seems difficult to establish domicile in the U.S.

        May I ask then about the case of a child (son of a US citizen) expecting to attend university in the United States next fall who has a dormant application for an immigrant visa (green card) that was made about three years ago (the application was first made when the child was 14) and has been renewed annually. Would that affect the child’s ability to obtain a student visa, since the applicant is to show an intent to return to his home country? Should the dormant application for an immigrant visa be withdrawn by letter before the application for the student visa is made?

  33. Dear Mr. Gary,

    Thank you for this insightful blog.

    My wife is a US citizen working abroad for an American Instituation of Research (AIR) recognized by the Attorney General.

    For me to become a Lawful Permanent Resident I understand that she should file I-130 on my behalf. However, since we both live together abroad and she works for an AIR, does she need to file form I-864?

    Thank you in advance for your time.

    1. A.H.,

      The U.S. citizen petitioner’s type of employer doesn’t impact the analysis of whether an I-864 needs to be filed. However, as mentioned above, work for certain employer types abroad (such as an AIR or U.S. corporation) does facilitate proving that the petitioner remains “domiciled” in the U.S. despite living abroad.

      By the way, you may want to look into whether you qualify for expeditious naturalization as the spouse of a U.S. citizen working abroad for an AIR. More info is here: Naturalization for Spouses of U.S. Citizens Employed Abroad

  34. Hello Gary,

    I am a U.S. citizen. I am currently in the United States and have petitioned for my brother who is in Saudi Arabia. I expect him to get his immigrant visa soon.

    However, I am getting impatient with the fact that I have to be in the United States from the time he gets the visa until when he actually enters the U.S. I have other personal obligations and issues to take care of in Saudi Arabia.

    I greatly appreciate this forum and your time. I look forward to hearing your response.

    Thanks

    1. SB,

      As mentioned above, for your brother to be issued an immigrant visa by the Consulate and admitted at the airport by Customs and Border Protection (CBP), you as the I-864 sponsor need to be “domiciled” in the U.S. not later than when he is admitted. The definition of domicile is discussed above. Your question seems to make the assumption, which is not correct, that you need to be physically present in the U.S. You can be temporarily absent from the U.S. However, the Consulate and CBP may seek evidence that your absence is temporary. Hope that’s helpful.

      Gary

  35. Hi!

    I have been married to a Chinese woman for over a year. We both live in China where I have a good job. Is it possible for her to work towards getting her Green Card in the USA while I continue to work in China? I can earn much more money for my family while working in China vs working in the USA. I would hate to have to give this up to help my wife get a Green Card.

    I have property in the USA that she would live in while getting her Green Card. We both plan to move to the USA in a few years when her son goes to school. I know we can do this then, but it would be easier for us to begin this process now. Is this possible?

    Thank you!

    1. John,

      Two options come to mind to start the LPR process although you won’t move to the U.S. for a few years: (a) file the I-130 and get it approved, then wait to do the visa processing later; or (b) if any above argument is available that you are “domiciled” in the U.S. or will re-establish U.S. domicile not later than when your wife immigrates, complete the visa processing and become a permanent resident now. An example would be if your job in China is arguably “temporary” or if you are working in China for a U.S. corporation or its subsidiary.

  36. Dear Mr. Chodorow,

    I have lived overseas with my non-US citizen husband for our entire marriage (10 years). We are planning to move to the US, and I am filing the I-130 petition for him. My question is, if I put my address as my current foreign one, will this be grounds to reject my petition?

    1. SH,

      No. An I-130 won’t be rejected just because the petitioner lists a foreign address. For petitioners domiciled abroad, the requirement is to re-establish that domicile not later than when the beneficiary enters with the immigrant visa.

      However, I’d encourage you (or your attorney) to list a U.S. address because USCIS correspondence can easily be lost in international mail. Note that the required “address” in Part B2 of the petition is used by USCIS as your mailing address. Your residence address is not required there.

  37. Hi Gary

    I am working in France – have a French hubby and a six-month old daughter (dual citizen). I have just been offered a great job back in the States that I would love to take, but can’t see splitting up the family for 10+ months. I’d have to relocate in the next three months.

    Is there any significant gain in time to petition to apply at the U.S. Consulate in Paris instead of by mail to USCIS Chicago? You mention above “cases where the U.S. citizen petitioner has been given short notice related to transferring to the U.S. or taking a new job there, etc”…. How likely is it to have this argument accepted, and how much will it help us? Otherwise is there any other option, such as an L-1 visa?

    Thanks,
    Cynthia

    1. Cynthia,

      This type of request can be made to the U.S. Embassy in Paris, and it’s referred to the USCIS District Office in Rome. USCIS has approved direct consular filing of the I-130 where the U.S. citizen petitioner has been offered a U.S. job to start on short notice. The I-130 and immigrant visa can be adjudicated quickly. Other options will depend on the facts of your case. Why not schedule a consultation with our law firm?

  38. For the affidavit of support, am I truly expected to prove that I have been filing US taxes when I haven’t lived or worked in the US in 4 1/2 years? I am an American who has been living and teaching English in Moscow since May of 2010.

    1. Your affidavit of support questions is really beyond the scope of this article.

      Usually, one of the following must be proven to satisfy the affidavit of support obligation: (a) petitioner filed tax returns for last 3 years; (b) if no tax return was filed during one of those years, under the tax laws the petitioner was not required to do so; or (c) the I-864W can be filed instead of the I-864. For more, see the I-864 instructions at http://www.uscis.gov/I-864.

      U.S. citizens and permanent residents have U.S. tax obligations even if they live outside the U.S., although certain exemptions may apply.

  39. Hello,

    I’m a US citizen living in Helsinki. I just got married to a finnish citizen and would like to petition for her spouse visa but am worried about the whole domicile thing. It’s been 3 years since I’ve been in the States and don’t have really any concrete proof I’m coming back. I do have a significant Australian bank account that I could transfer into an American account. Is that worth anything? Could it be possible to just put my mothers address? Do I really need to quit my job here, leave my home here, and get a lease and job in the U.S. before she arrives?

    1. Chris,

      You aren’t required to re-establish U.S. domicile before the date your wife immigrates (i.e., enters with an immigrant visa). You are allowed to reestablish domicile either ON OR BEFORE that date. If you plan to move back to the U.S. on that date, then you need to prove your intent to the consular officer. So, yes, moving your assets back to the U.S. can be helpful to establish intent, as can proof you and your wife intend to live with your mother. That’s often sufficient. If the officer doesn’t believe you and, on that basis, refuses to grant the immigrant visa, at that point you can actually move to the U.S. and ask the officer to reconsider his or her decision based on the new evidence.

  40. Hello Mr. Chodorow,

    I am a U.S. citizen living in Japan married to a Japanese citizen. My wife has a chance at a great job in Guam that could continue indefinitely. She would like to get a green card so it would be easier for her to move and work. However, I recently bought a house in Japan, like my job here, and have no plans to move immediately. Would it be difficult or unlikely for her to get a green card if we lived separately for a couple of years but remained married?

    1. Brian,

      Check if your wife is eligible to file a Form I-864W or if she has other suitable U.S. visa options.

      You may have problems sponsoring her with the Form I-864. Check to see if under any of the above rules you can count as “domiciled” in the U.S. In particular, are you really “domiciled” in Japan, meaning that you plan to reside there for the “foreseeable future”? If you aren’t “domiciled” in Japan, where are you domiciled?

  41. Hi Mr. Chodorow,
    I am Iraqi married to an American citizen and we are currently working and living in Singapore. Is it ok if we apply for green card now even if we intend to go back to the States after 3 years from now? We want to apply now, so that we can have the option to move to the US any time if our circumstances change, and also it will be easier for me to go back for visits once I have a greencard.

    1. Great question: When is it best to begin the process? You’ll need to take into account several factors.

      1. It’s best to begin early: Depending on various factors, such as where you file the I-130 and where the immigrant visa application will be processed, it can take from about 4 months to about 2 years to finish the process. An additional factor that can delay visa issuance is administrative processing.

      2. Ability to prove nonimmigrant intent: Filing the I-130 or applying for the immigrant visa is evidence that your spouse intends to immigrate to the U.S. (obviously). However, if your spouse intends to enter the U.S. in the meantime with certain statuses such as B1/B2 (visitor for business or pleasure), your spouse must prove nonimmigrant intent, meaning that on the trips your spouse makes in such status, he or she doesn’t intend to immigrate. Some individuals are unable to convince U.S. immigration officials, resulting in denial of the visa or being refused entry to the U.S. For more, see Proving Nonimmigrant Intent for a U.S. Visa.

      3. U.S. Citizen Spouse’s Ability to Prove Domicile: As discussed in the above article, you need to prove that you are domiciled in the U.S. or that you will re-establish domicile in the U.S. not later than when your spouse enters the U.S. for the first time with the immigrant visa. Some people are unable to prove this, in which case the immigrant visa can’t be approved.

      4. Temporary absence after immigrating: Once your spouse immigrates to the U.S., your spouse may return abroad for a temporary period. If the period will be substantial (e.g., more than 1 year straight or more than 6 months for two years in a row), your spouse should consider applying for a reentry permit. See Guide to Reentry Permits.

      Finally, it’s worth mentioning that in the immigrant visa application process there is no requirement that your spouse at any time intent to reside or to reside permanently in the U.S.

      So, talk with your immigration lawyer to take these factors into account and make the decision that best matches your situation and goals.

  42. Hi Gary,

    I’m currently in the process of applying for my British wife to come to the US and have gotten to the point of filing my affidavit of support.

    I’ve been living abroad since 2007, working as an English teacher. I met my wife the same year I first went abroad and we’ve lived and worked together ever since. In this time, we’ve lived in 4 different countries, as well as spending time studying in a 5th country, and frequent stints of 3-6 months in each others respective countries as tourist or to get married (We married in England in 2012).

    I understand that it may be hard to prove that I have domicile in the US as I haven’t really lived there since 2007. Is there any argument for saying that as I’ve moved so frequently, I clearly don’t have domicile anywhere else?

    Honestly, the sole purpose that I have remained abroad so long is to remain “domiciled” with my wife, as we knew we couldn’t just easily move to one of our home countries. We’ve remained in the same country for the past year in a half, and came here in order to apply for her greencard, as we knew we could not remain together in either of our countries while the process was happening. Will the argument of remaining abroad to stay together hold any water?

    What would you recommend as the better route in our case: living abroad temporarily, or, intending to re-establish domicile?

    Also, how could I apply for and accept a job offer in the states if I have no idea when her greencard may possibly be ready? Obviously I have no intention of heading back without her.

    1. Sam,

      We could analogize your case to that of a person who leaves his U.S. home for 10 years, backpacking around the world, never staying in one place more than a night. Domicile clearly remains in the U.S. because he never intended to stay in any other place for the “foreseeable future”–just for the night.

      Similarly, you could try to prove that you never intended to stay in any of those 5 countries for the foreseeable future. For example, you could show that you just had a temporary employment contract and short-term apartment rental in each country, all the while perhaps keeping some ties in the U.S.

      But, frankly, producing that voluminous evidence would be hard work for you and only a rare USCIS or consular officer would be interested in reviewing and evaluating it to see what it means. Besides, it can be hard to prove the negative (that you never intended to live in another country indefinitely). You can reduce the burden greatly by just providing evidence that you intend to re-establish U.S. domicile. The article lists several factors which you may show as evidence of your intent to move back to the U.S. You don’t need to have a U.S. job lined up. For example, you could provide evidence that you are “seeking employment” in the U.S. and evidence that you’ve made arrangements for where you and your wife will live.

  43. Hi Gary,

    Thank you for providing this insightful blog.

    I am American and my wife is from the Czech Republic. I lived in Czech for three years. After this we then moved to the UK where I lived for 9 years with her and where I established permanent residency. I then got a job in the middle east with a large American firm. My wife went back to Czech and I have been working for the American firm for over two years in order to save money and buy us a house in the US. (I work in a rugged non-female friendly area of the middle east which is why my wife has decide to wait in Czech). I have had my i-130 approved. I need to re-establish domicile in the USA, correct? My tax advisor has said I am definitely domiciled abroad for tax purposes because of the UK residency and current middle eastern country I am now resident of. I have had all paychecks from the last two years deposited in my US bank account which I have had for over 20 years. Does working for an large well-known American firm in the middle east automatically qualify me as domiciled in the USA for the purposes of the i-864?

    Thank you!

    1. No, working for one of the qualifying types of U.S. employers isn’t enough to prove you are domiciled in the U.S. You also need to prove your stay abroad is “temporary,” which as mentioned above is an odd requirement becuase proving “temporariness” alone is sufficient to qualify as domiciled in the U.S.

      In any case, given that your last stop was for 9 years and you became a permanent resident there, it would seem to be an uphill battle to prove your stay abroad has been temporary.

      You should consider proving the other option, which is that you intendent to reestablish your U.S. domicile not later than when your wife immigrates.

  44. Hi Gary

    My US citizen husband and I got married, and I went through the immigration process in the States and got my permanent residency. I then surrendered it as we decided to move back to New Zealand, where I was born. However recently we have discussed moving back but there is no consulate in NZ that accepts the adjustment status form for a spouse. Could you please explain how we go through the process while staying in NZ togeather so that we can immgrate as a family (we have 3 children who are all registered US citizens). Where do I need to file the forms? what do we need to fill out and what will the process be, how long does it usually take?

    Thanks

    1. Alex,

      There is no USCIS international office that will accept a Form I-130, Petition for Alien Relative. http://www.uscis.gov/about-us/find-uscis-office/international-immigration-offices.

      So that means normally the I-130 must be filed by mail with the USCIS lockbox in Chicago, as mentioned above. In “exceptional circumstances,” as described above, you can file the I-130 with the U.S. Embassy in Aukland.

      After the I-130 is approved by USCIS in the States or by the U.S. Embassy in Aukland, you can apply for an immigrant visa at the U.S. Consulate in Aukland. Note that this is a slightly different process than the Form I-485, Application to Adjust Status, which you filed with USCIS the first time you immigrated. The key difference is that the I-485 is filed by persons physically present in the U.S., while an immigrant visa application is filed by an applicant abroad.

  45. Gary,

    I’m a U.S. citizen by birth, but I’ve been living in Brazil the past 15 years as a correspondent for U.S. news organizations (including a famous one.)

    My Brazilian wife and I are planning to move to the U.S. in about 18 months. I was thinking of filing an I-130 for her now, since I’ve been told the process can take 12-14 months, but might we get turned down since I’m not currently domiciled in the U.S.? (I do have a mailing address in the U.S., my mother’s, where I have received mail for years.)

    In that case, would it be preferable for us to first move to the U.S. together (she has a tourist visa), then apply for adjustment of status with the I-485 once I have an apartment etc in my name?

    Thanks!

    1. Dan,

      As mentioned above, broadly speaking, there are two steps to the immigration process for a foreign national who is not physically present in the U.S. First, get a Form I-130 approved by USCIS, and second get an immigrant visa approved by a U.S. consulate. Part of that second step is to file a Form I-864, Affidavit of Support.

      For the I-130 to be approved, there is no requirement that the petitioner must be “domiciled” in the U.S. That requirement is instead part of what is required during the immigrant visa application for a petitioner to be a qualified “sponsor” for the I-864. My point is that the I-130 can be filed and approved even if you are domiciled in Brazil.

      And there sare significant risks to your wife trying to enter the U.S. with a visitor (B1/B2) visa with the intent to immigrate. The first risk is that at the airport the officer will very likely ask what is the purpose of her visit and how long she intends to stay. If she answers that she intends to move to the U.S. to complete the Form I-485, Application to Adjust, process, then she will be denied because a visitor must have nonimmigrant intent and an unabandoned foreign residence. See generally Proving Nonimmigrant Intent for a U.S. Nonimmigrant Visa. If she lies and the government later uncovers the lie, she could become subject to deportation and ineligible for visas in the future. If she manages to enter without lying, USCIS still has the power as a matter of discretion to deny her I-485 on the basis that she had the preconceived intent to immigrate when she entered with the visitor visa.

      In sum, I’ve emphasized in response to a couple questions here that one option to for a petitioner to prove domicile in the U.S. is to prove an intention to re-establish U.S. domicile not later than when the sponsored immigrant enters the first time with the immigrant visa. So you don’t have to move to the U.S. before your wife. You can move there at the same time. I’ve also emphasized that it’s generally a good idea to begin the immigration process early but that one potential risk is that once an I-130 is filed the beneficiary may be unable to prove to the satisfaction of immigration officials the nonimmigrant intent required to get a new visa or be admitted to the U.S. This is discussed in more detail in the Proving Nonimmigrant Intent article.

      Best of luck with your move.

      1. Thanks so much for this detailed and helpful answer. I very much appreciate your time and I wish you the very best of luck in all things.

        Best
        Dan

        1. Hi Dan, I am in this same situation. Our plan was to move for Christmas because my family lives in the US. I requested an expedite to see if we can get our interview date faster. After reading this, I will change my tickets if I can’t finish the process. It really should be an option for Americans to take their spouse to the U.S. then finish the process there. :/

  46. Hi Gary,

    I am a US citizen and have been working in China for 6 years. I am preparing an I-864 AOS for my wife’s CR-1 application. I am planning to return to the US and re-establish domicile. At my current job (and from last year’s tax return), I meet the income requirements to file the Affidavit of Support, but upon returning to the US I will need to relinquish this job. I don’t have enough assets to qualify independent of salary.

    Do I need a joint-sponsor in this case?

    Thanks!
    Sam

  47. I’m a U.S. citizen. I’ve been in Thailand for 4 years. My wife has applied for an immigrant visa but the consular officer refuses to issue the visa until I prove I am “domiciled” in the United States.

    I’m planning to move back to America next summer. How can I prove domicile?

    * Can I show that I’ve transferred funds to a family or friend’s bank account?
    * Is my U.S. driver’s license helpful?
    * Is it helpful that I have a U.S. mailing address?
    * What about the fact that my Thailand visa is just temporary?

    1. Brian,

      All those things seem helpful, except that I’m not sure how you transfering money to a third person proves you plan to move to the U.S.

      More importantly than any of those factors are:
      (a) what proof do you have of where you will live in the U.S. Do you own a house? Will you rent or stay with friends?
      (b) what proof do you have of what work you will do in the U.S.? Or where you will study? Or spend your retirement?

      Most cases can be resolved by focusing on those two issues. In the end, the consular officer has to be satisfied based on the totality of the facts that you will move back to the U.S. not later than when your wife enters the U.S. with the immigrant visa.

  48. Hello Mr. Chodorow

    My name is Alvin, my wife is US Citizen. She moved to Tanzania three and half years ago. She is a housewife and she depends on me on her staying here (Dependent pass visa). She has filed for our immigration and on the domicile part she has indicated that she has been getting correspondence letters from school loans to an address (our friend’s house) where we will be moving in with them and they actually wrote a letter to the uscis to invite us to stay with them until we get a place of our own. And another thing, she put her bank statement showing the same address. She had also put her US valid driving license and a dependent pass to show that she lives here in Tanzania temporarily

    Do you think she qualifies with showing domicile?

    Our papers are on the uscis now for processing. or do you think we should move our money to her account in US now (which we want to do soon anyway) and how should we send that confirmation of our transaction while we already sent the I 130 and I 864 together?

    Thank you so much sir, looking forward to hear from you

    Regards
    Alvin Enoch

  49. Gary,
    Wonderful Blog! I am planning on returning to US after living 11 years in East Africa (Uganda). I went as a PhD student and after receiving my PhD taught at a University in Uganda for the last 8 years. My wife is a Ugandan citizen (married for 8 years) and we have a 7 year old son who is an American Citizen. We have traveled back to to US every few years to visit friends and family. We are planning on moving back permanently and I want to file for an immigrant visa for my spouse. A few questions:

    1. Our domicile over the past decade has clearly been Uganda. But upon return to US on day one, our intent is to live there permanently – buy a house, enroll kid in school, gets jobs, etc. What evidence will be sufficient to prove intent for domicile? Especially since most of the events listed above will happen AFTER we apply?

    2. I know that for the I-864 I have to prove that I can support my wife — my salary in Uganda is sufficient to meet the requirements, as will any teaching job I am able to land in the US. However, on the day we land in US, I may not have a job yet. Would a letter (If I land a job ahead of time) suffice? Can I use the salary that I currently have in Uganda??

    Sorry for the long questions! Really appreciate any advice

    P.J

  50. I will like to know how long will it take for someone to interview after doing D N A test for the USCIS filing programme cause my brother file for me and I have done my D N A since and until now no date has been scheduled for my interview at any embassy how long should I wait?

  51. Hi Gary,
    I am a American citzen by naturalization, my parents lived in the US for 13 years with tourist visa, they moved back to Brazil 5 years ago, now I want to apply for I-130, can they be dennied because they lived illegally here?
    your guidence will be much appreciated
    QP

  52. I have lived in Korea for three years and am getting married. I have no plans to move back to the US. However, I will have a 13 year-old step child that we would like to send to high school in the US. Is that even possible?

  53. i am a citizen, living in the US. i want to file form i- 130 for my brother who is in the US as student. can i file form i-485 for his at the same time

  54. Dear Paul N,

    My relative is a US Citizen, residing abroad for the last 17 years.He has now filed I-130 for his wife,who has never been to US before.Both live abroad.The immigration process is halfway through with NVC requiring I-864.While filing out I-864,he stopped where it says if he filed IRS tax returns for the past 3 years,which he has not.
    What does he have to do?

  55. Dear Mr.Chodorow,
    I do have a couple of questions and may need your services in couple of months. I am a US citizen moved to Turkey in second half of 2012, family business needed some help over here. So it was a temporary move.
    Now I would like to move my whole family back to US. This includes my mother and my father and his spouse and his 4 years old son.
    I will be moving to Houston in June 2015, would it be wiser to start petitioning there once I get there or Can I start filing I130s while Im here.
    Also, which route will be easier for us since my biological parents are divorced and my father is married, I’ve been reading about E2, EB5 visas or should I petition based on my US citizenship?
    I don’t own a house in US, however, my bank account is active (CCs being paid etc) I’ve also filed my taxes since I got here.
    ————————————
    About E2 visa, our family business is a cloud based software system for hotels and we have about 20 US customer hotels and we are sure it will grow rather quickly if we open up a branch in US. We can invest into this business and hire US personnel and grow the company, maybe.
    Our other option is Individual EB5 investment into my business which is salvage operations. We do have the capital of $1M, which I hate to donate to a company and never see it again like it happened in S. Dakota EB5 project.
    What would be our options at this point?

    Looking forward to your answers,
    Best regards,
    Seth

  56. We are two(man and woman) Lawful Permanent Residents(LPR or Green card Holders)of the United States. We have recently given birth to a child in our country. We want to return back with to the United States with our child.We Know, We will not require a visa for our child if: he is under two years of age; it is his first entry into the United States since birth; and he is being accompanied by us (the parent) who is applying for readmission as a permanent resident upon the parent’s first return to the United States after the child’s birth. Our child will require his own passport and his long form birth certificate, listing both parents’ names. Our question is if we bring our child(under 1 year old) to USA with us and without visa, how long does getting a visa for him take? how can we take care( SSN, Insurance, medical,……..) of our child while the visa is ready?
    thanks

  57. I just want to say how incredibly helpful this post was. Thanks for making this free resource available.

  58. Hi Gary,

    I’m a Canadian citizen who works abroad and my spouse works for an American Government entity in another country. We have been married for a year and I am registered as an eligible family member. My spouse is currently working an unaccompanied post and will complete this tour in approximately a year’s time. Would it be prudent for us to file for the I-130 now (I assume through the lockbox as the location does not have a USCIS office). If so, upon approval of the I-130, would I be able to visit the U.S. without my spouse. Or will that automatically raise a flag with border control as I’d be travelling in without my spouse on a visit visa. I ask because I would like to explore educational prospects in preparation for our eventual return to the U.S. in a year’s time.

    Thank you for your time.

    1. Dear C: For information about the nonimmigrant intent issues that arise when the spouse of a U.S. citizen with a pending or approved I-130 wishes to apply for a B1/B2 (visitor for business or pleasure) visa or enter the U.S. as a visitor, see here.

  59. Hello Gary,

    My wife and I are Canadian citizens. Many years ago, I lived and studied in the USA for my university degree, during which my two sons were born in the U.S. Now, they are ages 21 and 23. They are studying in Canada, and I support them. Can our sons submit Forms I-130 for my wife and I to immigrate to USA as immediate family members? Thanks so much.

    Regards,
    Shaw

    1. Shaw: Yes, you and your wife–as the parents of U.S. citizens over age 21–may well qualify to immigrate as “immediate relatives” of U.S. citizens. And your sons can meet the “domicile” requirement for filing an affidavit of support, so long as they can prove they plan to re-establish domicile in the U.S. not later than when you and your wife immigrate.

  60. Hi Gary,

    Just a few months ago, I moved to Argentina to be with my boyfriend of 5 years. We just got married. Now, we plan to return to the U.S. and are preparing an I-130. I have maintained a bank account and still have been using my parents address for many things in the States. I wanted to provide as much bona fide evidence for the marriage as possible but our apartment lease is under his fathers name since the owner is a family friend. I was thinking of providing our Argentine domicile certificates (which were available after the marriage here) as being the same address to show that we live together, but I’m not sure if that would work against us since I would be showing a foreign domicile certificate. What would you suggest?

    1. Wondering:

      You seem to be considering two issues at once: (1) how to prove you have a valid marriage for purposes of the I-130; and (1) how to prove U.S. domicile as the Form I-864 sponsor.

      Talk to your lawyer about going ahead and submitting the evidence you lived together in Argentina with the I-130. It may be helpful to prove a valid marriage. Later, at the I-864 stage, you should be able to prove your Argentina stay has been temporary or that you are moving back to the U.S.

      For info about proving a valid marriage, see here.

      For info about proving U.S. domicile, see the Affidavit of Support Help Center.

  61. Hi,

    I have lived abroad for over 5 years in two different countries wwithout filing U.S. taxes. The last three years I didn’t work. Will my lack of income tax history for the past 3 years give me a problem when filing the affidavit of support for my husband?

    Thank you for your help.

  62. Dear Gary,

    Thank you for this informative post. I have a follow-up question to the process you described above. I am a US citizen residing abroad and have petitioned for my spouse with the I-130. We are at the NVC stage. We both intend to move to the US as soon as my spouse completes his visa interview and receives a visa. My question: when my husband receives his visa, I understand that I need to enter the US with him for the first time or already there. However, I am required to give two months notice at my work abroad, and we would like to start the moving process as soon as we receive the visa. Can I quit, go the US with my spouse for his first entry on the new visa, stay a few weeks, and then come back to my job abroad to finish out the contract? If we have proof that I have quit, we have cancelled our housing, and I have a return ticket back to the US, will this be enough to assuage any concerns that I do indeed intent to reside with my spouse in the US? Many thanks for your consideration.

    1. Anna: In brief, a person can establish a new domicile on day 1 of arriving in a new place, so long as he or she intends to reside there for the foreseeable future. Further, a person doesn’t lose that domicile just by making temporary trips to othre places. So, if you move to the U.S. and intend to live there for the foreseeable future, it’s OK for you to then make a temporary trip back abroad for purposes of helping to transition to your new life in the U.S. (e.g., selling a house, closing a business, liquidating other assets, finishing an employment contract).

  63. Gary,
    I am a LPR, right now i am living outside the usa on a re-entry permit and have strong ties to the USA. I recently got married outside the USA. My question is can i apply for my wife’s
    I-130 while i am still living abroad and move back later on to the USA and sponsor her after her petition is approved.
    – Andrew.

  64. Dear Gary,

    I am a U.S. citizen. I live in France with my spouse, who is a French citizen. We honestly have no idea if or when we will ever move to the U.S. However, we would like the option should we choose to. Can we go through the green card process while living abroad without having the intention of returning on a specific date? As I said, we just want this option for the future should we decide to move back one day.

    -Todd

    1. Todd,

      An immigrant visa applicant is not required to have an intent to reside in the U.S. See here.

      But the U.S. citizen petitioner is required to file a Form I-864, Affidavit of Support, on behalf of the immigrant visa applicant. And to qualify as the I-864 “sponsor,” as explained above, a petitioner who has been living abroad on a non-temporary basis will generally need to prove that he will reestablish domicile in the U.S. not later than when the applicant enters the U.S. for the first time with her immigrant visa. (That visa will have a validity of a maximum of 6 months).

      So, no, it’s generally not possible for a U.S. citizen’s spouse to become a permanent resident if the citizen lives abroad on a non-temporary basis and lacks clear intent to re-establish U.S. domicile.

  65. Mr. Chodorow,

    I am a US citizen married to a Chinese citizen for more than 5 years. We are currently in the middle of her immigrant visa process, and only need to schedule an appointment in Guangzhou. My wife already has a 10-year visitor (B1-B2) visa. We are in a hurry to get to the US. Is it possible to go to the US on her visitor visa and then have our interview in the US? If so, are there any pitfalls to this approach? Thanks so much.

    Whitley

    1. Whitley,

      You haven’t specified the reasons your wife is in a hurry to get to the U.S., and I don’t have the facts to determine whether it’s possible to quickly schedule the Guangzhou appointment or apply for a different kind of visa (or other authorization) for your wife to enter the U.S.

      However, generally speaking, there may be significant risks to your wife trying to enter the U.S. with a visitor (B1/B2) visa with the intent to immigrate. The first risk is that at the airport the officer will very likely ask what is the purpose of her visit and how long she intends to stay. If she answers that she intends to move to the U.S. to complete the Form I-485, Application to Adjust, process, then she will be denied because a visitor must have nonimmigrant intent and an unabandoned foreign residence. See generally Proving Nonimmigrant Intent for a U.S. Nonimmigrant Visa. If she lies and the government later uncovers the lie, she could become subject to deportation and ineligible for visas in the future. If she manages to enter without lying, USCIS still has the power as a matter of discretion to deny her I-485 on the basis that she had the preconceived intent to immigrate when she entered with the visitor visa.

      So consider finishing up the immigrant visa process at Guangzhou and/or consulting with an experienced immigration lawyer (our firm, for example) about your other options.

  66. Dear Gary,
    I have both US and Russian citizenship and we are living in Russia with my wife together, she has the Russian citizenship. I’m living here as a Russian citizen.
    Can I apply the I-130 form for my wife through DCF option directly in the US Consulate in Russia, or I could do that only if I would live in Russia as a US citizen with visa?
    Thank you!

    1. Alex: Where you file the I-130 turns in part on your “residence”–your principal, actual dwelling place. In other words, where you sleep most nights. Your local immigration status (i.e., Russian citizen) isn’t determinative.

  67. Gary,

    I am a US citizen with a foreign wife and 2 young US citizen children. My wife got a green card on the basis of the marriage in 2000, and we moved overseas in 2003. Now, I’ve been offered a position as managing director of the new US subsidiary of a foreign company. The catch is I have to be in US by the end of August to start work. But I can’t leave my family behind. Crime in our current country is a great concern. Can my wife get a new visa in time?

    1. Riaan: More facts would be necessary to predict a timeline for visa issuance. Consider scheduling a consultation with our law firm or another competent immigration attorney.

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