Domicile Requirement

US Domicile

Domicile

Domicile is the place where a person has his or her principal residence. The person must intend to keep that residence for the foreseeable future. The sponsor (or Petitioner) of an immigrant must have a domicile in the United States before the visa can be issued. This generally means that the sponsor must be living in the United States.  In certain circumstances, however, one can be considered to have a domicile while temporarily living overseas.

Domicile is a complex concept and must be evaluated on a case-by-case basis. The burden of proving domicile lies with the petitioner, who must offer enough evidence for the officer reviewing his/her application.

To qualify as a sponsor, a petitioner residing abroad must have a principal residence in the U.S. and intend to maintain it indefinitely. Lawful resident (LPR) sponsors must show they are maintaining their LPR status.

Many U.S. citizens and lawful permanent residents reside outside the United States on a temporary basis. “Temporary” many cover an extended period of residence abroad. The sponsor living abroad must establish the following in order to be considered domiciled in the United States:

 

  • He/she left the United States for a limited and not indefinite period.
  • He/she intended to maintain a domicile in the United States, and
  • He/she has evidence of continued ties to the United States.

 

The Immigration and Naturalization Act of the United States of America requires that a sponsor of an alien for legal permanent resident status in the United States must be domiciled in the United States.

Domicile means the place where a sponsor has his or her principal residence, with the intention to maintain that residence for the foreseeable future.

 

Establishing Domicile

To prove, establish or reestablish domicile, a sponsor must set up and maintain a principal residence in the United States. An individual must demonstrate ties to a house or apartment in the United States that are consistent with ties that a resident with legal domicile would possess. There is no minimum time required to establish residence, but a credible demonstration of an actual residence in the United States is required.

A convincing combination of the following types of action might be considered evidence of domicile:

 

  • Establishing an address in the United States that corresponds with your place of residence
  • Working or seeking employment in the United States
  • Voting in local, state or federal elections
  • Paying U.S. income taxes
  • Enrolling children in schools
  • Taking steps to relinquish residency in a foreign country
  • Applying for a social security number
  • Setting up and maintaining bank accounts in the United States
  • Transferring funds to the United States
  • Making and maintaining investments in the United States

 

Proof of Maintenance of Current Legal Domicile During Period of Residence Abroad

An individual who resides abroad may be considered to have maintained legal domicile in the United States if he or she has maintained sufficient ties for a finding that the individual would be subject to the jurisdiction of a court in the United States. Absent such a finding, consular officers must review the evidence of ties presented by a sponsor to determine whether the individual has maintained sufficient ties for domicile or appears to have abandoned any prior principal residence in the United States.

A convincing combination of the following types of action might be considered evidence of domicile:

  • Maintaining an address in the United States that corresponds with a place of residence to which you have a right to return and could return easily to take up residence
  • Receiving mail, especially from governmental entities, at the residential address
  • Working or seeking employment in the United States
  • Voting in local, state or federal elections, using the residential address
  • Paying U.S. income taxes using the residential address
  • Maintaining a spouse or minor children in the US residence during the sponsor’s time abroad
  • Maintaining active usage financial accounts in the United States using the residential address
  • Maintaining active professional licensure, where applicable, in one’s career field in the jurisdiction of principal residence

Additional information explaining the distinction between residence and domicile is available. Re-Establishing Domicile:

A sponsor who previously maintained a domicile in the United States but has been determined to have abandoned it must reestablish domicile anew. The sponsor may have evidence of prior but not current domicile at the time of an initial interview. Sponsors must submit evidence of reestablishment of domicile in the United States that indicates a clear intention to reside primarily in the United States along with an intention to abandon a foreign domicile.

A convincing combination of the following types of action might be considered evidence of domicile:

  • Establishing an address in the United States that corresponds with your place of residence
  • Working or seeking employment in the United States
  • Taking steps to relinquish residency in a foreign country
  • Voting in local, state or federal elections, with a United States mailing address
  • Paying U.S. income taxes
  • Enrolling children in schools in the United States
  • Opening and/or maintaining active usage financial accounts in the United States

In analyzing whether a sponsor has abandoned a foreign domicile or intends to abandon the foreign domicile concurrent with the establishment of a domicile in the United States, Consular Officers will consider that evidence of continuing and prospective employment or residence in a foreign country would indicate that the sponsor has not established his or her principal residence in the United States.

 

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.

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