Domicile requirement

[ciao]

I'm about to start the process of getting US visas for my wife and
daughter. I've been reading about the requirements for an IR1 visa, and
I'm getting nervous about this "domicile" thing.

Seems like I need to have a fairly permanent place of residence in the
US. I don't have one, since my family and I have been living overseas
for the last 4 years.

We have a hefty pile of cash, and plan to buy a house when we get
back to the US. It should be clear from our financial records that we
can support ourselves for decades to come (which is the real point
of the requirement, I assume).

So, what to do ???
(1) Hope that cash will serve as a substitute for a domicile (risky)
(2) Ask a friend to be the "sponsor" (embarrassing; possible ??)
(3) Quickly buy some house I've never seen (stupid)
(4) Get a K3 visa instead (no domicile requirement ??)

Any suggestions ?

thanks

[Randy W]

The K3 option is certainly valid and something to consider.

 

However, the domicile issue doesn't come up until the interview, so you may want to look into just how much time you have to buy (or lease) a residence. Another CR-1 person might give you more accurate information there. Many have filed DCF while living in China, and then gone back to the US to establish a domicile.

 

Personally, I don't like the idea of a co-sponsor. That's too much of a financial obligation to place on someone else on your behalf. Just my own feeling there - of course, if you can easily line one up, there's no problem at all with doing that. But I think the domicile issue will do the most to shore up your case.

[chilton747]

What exactly are your plans for a domicile in the US? This is what the VO has to know......your plans and what you have already done to establish this.

[ciao]

> What exactly are your plans for a domicile in the US?

> This is what the VO has to know......your plans and what

> you have already done to establish this.

 

The plan is ...

(1) Move back to the US with wife and daughter.

(2) Live someplace temporary for a few months

(3) Look for and purchase a house

 

I could go do #3 alone, but I'll get in a lot of trouble with my wife

if I buy a place she doesn't like Joking aside -- obviously better to

do this together.

 

Anyway, I just read the I-864 regulations, and "domicile" is not quite

the same thing as "residence".

 

They say (and I quote):

If your mailing address and/or place of residence is not in the United

States, but your country of domicile is theUnited States, you must

attach a written explanation and documentary evidence indicating how

you meet the domicile requirement. If you are not currently living in

the United States, you may meet the domicile requirement if you can

submit evidence to establish blah, blah, blah

 

I have US bank accounts, drivers license, tax returns, job,

property in storage in the US (including two cars).

I guess I could vote, if it would help.

I guess I could sign some sort of rental agreement.

I have evidence from the Chinese government and my employer

that my stay in China is only temporary.

 

It all sounds reasonable to me, but I'm not an

immigration agent, and "reasonable" is highly variable.

[ciao]

In the original post, I suggested the option to

(2) Ask a friend to be the "sponsor"

 

What I really meant was that the friend would be the joint

sponsor, or co-sponsor, not the primary sponsor, and that this

would resolve the domicile problem.

 

Anyway, I have now read in a couple of places that this won't work.

For example, at ...

 

http://www.usvisa.com/affidavit_of_support.shtml

 

they say

 

a joint sponsor cannot be authorized in cases where the petitioner

cannot be a sponsor by virtue of domicile

[Randy W]

In the original post, I suggested the option to

(2) Ask a friend to be the "sponsor"

 

What I really meant was that the friend would be the joint

sponsor, or co-sponsor, not the primary sponsor, and that this

would resolve the domicile problem.

 

Anyway, I have now read in a couple of places that this won't work.

For example, at ...

 

http://www.usvisa.com/affidavit_of_support.shtml

 

they say

 

a joint sponsor cannot be authorized in cases where the petitioner

cannot be a sponsor by virtue of domicile

 

Read and understand this

Form I-864 is a legally enforceable agreement wherein the sponsor commits to providing support to the foreign national.

Although in actual practice, this is not carried out, except as a piece of paper to wave in front of the judge in OTHER legal proceedings (such as divorce).

sponsors residing temporarily abroad must have a principal residence in the United States with the intent to maintain that residence for the foreseeable future.

You WILL need to establish DOMICILE

[dnoblett]

Randy mentioned K-3.

 

Since you are living overseas you should consider CR-1 or IR-1 and file the I-130 at the consulate, this requires at least 6 months residency in the consulate jurisdiction.

 

K-3 involves filing I-130 and then later I-129F to USCIS in the USA. What then happens is the I-130 AND I-129F get tied together and APPROVED then SENT to NVC together. What happens next you can see in this quote:

 

How will the Department of State process my K-3 visa petition?

 

Important Notice: Effective February 1st, 2010, when both the I-129F petition for a nonimmigrant K visa and the I-130 petition for an IR-1 (or CR-1) spouse of a U.S. citizen visa have been approved by USCIS and sent to the National Visa Center (NVC), the availability as well as the need for a nonimmigrant K-3 visa ends. If the NVC receives both petitions:

• The nonimmigrant K visa will be administratively closed.
   
  
• The application process explained below will not be applicable and cannot be used.
   
  
• The NVC will contact the petitioner and you with instructions for processing your IR-1 (or CR-1) immigrant visa. For more information on the immigrant visa process review the Immigrant Visa for a Spouse webpage.
  

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition. Then NVC will send the petition to the embassy or consulate in the country where the marriage took place. If your marriage took place in the U.S., the NVC will send the petition to the embassy or consulate that issues visas in your country of nationality.

http://travel.state.gov/visa/immigrants/ty...pes_2993.html#4

 

Over the past year or so USCIS has been tying the two petitions together and approving them at the same time, and sending both to NVC at the same time.

 

The above statement by DOS makes sense, the whole reason the "Life-ACT" K-3 was developed was for the Spouse of US citizen to be able to enter the USA and WAIT for I-130 approval, at the time K-3 was developed the I-130 was taking a VERY long time to process through USCIS to approval, and the I-129F for non-immigrant fiance visa was fairly quick, so it was setup so that a spouse waiting for approval of their visa petition can be treated like a fiancee and come to the USA in about the same time as a fiancee.

 

About domicile, many living overseas will first file the petition, and then US Citizen heads to the USA and starts re-establishing it, perhaps starting bu renting an apartment, and then looking for work, etc.

 

A joint sponsor having domicile will also help if you do not have an income that will continue after moving to the USA.

[Kyle]

These are the suggestions that I received while attending ACH:

 

The VO gave me a copy of the the domicile criteria they use:

 

http://www.state.gov/documents/organization/86988.pdf

 

basically it lists these things (I'm sure it's not conclusive, but he may of been specifically speaking from a DCF viewpoint:

 

1. Opening a bank account

2. Transferring funds to the US

3. Making investments in the US

4. Seeking employment in the US

5. Registering children in US schools

6. Applying for a social security number; and

7. Voting in local, state, or federal elections.

 

http://uschinak1.com/forums/index.php?s=&a...st&p=526766

 

This is what we did:

 

1. I had several job interviews scheduled prior to my return. I did this by opening an account on monster.com.

 

2. My wife was a joint on my U.S. checking account. (submitted one statement per year that we were married and held the account jointly- total of 3 statements 07, 08, and 09)

 

3. On all of my American investments my wife was listed as the primary beneficiary.

 

4. We submitted pictures of the apartment where we are now staying.

 

5. Jingjing's joint sponsor submitted a very detailed letter outlining his financial situation and willingness to help. He also included his most recent bank statement. They took this at her interview and added it to her file.

 

6. I submitted my voter's registration card.

 

7. I gave three monthly statements (Capital One credit card) - one per year - 07, 08, and 09. I used the statements that showed our airline purchases - to and from China. I also included our past travel itineraries for those visits.

Edited May 11, 2010 by Kyle (see edit history)

[dnoblett]

Thanks Kyle! I was waiting for you to pipe in.

 

Kyle is THE one I was thinking of for this one.

[Randy W]

Sorry, Dan! K3 is alive and well, and unlikely to be altered by Congress in any way. It IS a viable option if domicile is an overly difficult issue for them. The I-130 can be throttled by simply not responding (or taking a long time to respond) to the goings on NVC. The I-130 is NOT forwarded to Guangzhou until the requirements there are fulfilled. In the meantime, the beneficiary can acquire a K-3 issue, and solve the domicile issue by simply moving to the states. More expensive, since you're paying for an extra visa, but they MAY wish to consider the possibility.

 

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition.

 

I'm not sure how you can make sure that the I-129F stays alive, but it's time we stop promoting one visa over another, and start presenting options. This one MAY just have a reason to go K-3 £¨then again maybe not, but why not present options, instead of trying to limit them?).

[shenzhen]

Sorry, Dan! K3 is alive and well, and unlikely to be altered by Congress in any way. It IS a viable option if domicile is an overly difficult issue for them. The I-130 can be throttled by simply not responding (or taking a long time to respond) to the goings on NVC. The I-130 is NOT forwarded to Guangzhou until the requirements there are fulfilled. In the meantime, the beneficiary can acquire a K-3 issue, and solve the domicile issue by simply moving to the states. More expensive, since you're paying for an extra visa, but they MAY wish to consider the possibility.

 

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition.

 

I'm not sure how you can make sure that the I-129F stays alive, but it's time we stop promoting one visa over another, and start presenting options. This one MAY just have a reason to go K-3 £¨then again maybe not, but why not present options, instead of trying to limit them?).

I don't know how you do throttle the I-130 from being approved by USCIS after you get NOA-1. They mean that if both the I-129F and I-130 are approved and sent to NVC in the US that the I-129 is cancelled. I have not seen anyone in a long time that did not get NOA-2 at the same time and have both sent to NVC together.

[dnoblett]

Sorry, Dan! K3 is alive and well, and unlikely to be altered by Congress in any way. It IS a viable option if domicile is an overly difficult issue for them. The I-130 can be throttled by simply not responding (or taking a long time to respond) to the goings on NVC. The I-130 is NOT forwarded to Guangzhou until the requirements there are fulfilled. In the meantime, the beneficiary can acquire a K-3 issue, and solve the domicile issue by simply moving to the states. More expensive, since you're paying for an extra visa, but they MAY wish to consider the possibility.

 

If the NVC does not receive your I-130 petition and I-129F at the same time, the NVC will process your I-129F petition.

 

I'm not sure how you can make sure that the I-129F stays alive, but it's time we stop promoting one visa over another, and start presenting options. This one MAY just have a reason to go K-3 £¨then again maybe not, but why not present options, instead of trying to limit them?).

I don't know how you do throttle the I-130 from being approved by USCIS after you get NOA-1. They mean that if both the I-129F and I-130 are approved and sent to NVC in the US that the I-129 is cancelled. I have not seen anyone in a long time that did not get NOA-2 at the same time and have both sent to NVC together.

Yep this has been the case over on VJ for some time too.

Only case would be for some reason the I-130 gets cought in some snag at USCIS and they approves and sends the I-129F on to NVC.

 

Other situation I have seen recently was K-3, K-4 case here on CFL, the member was advised to contact NVC and make them aware of the possible K-4 case and no I-130 was filed for the step child, not sure how that one turned out.

[Randy W]

Yes, that's the catch to the current K-3 situation - hopefully, someone can figure out what needs to be done.

 

It seems to me that there needs to be a way for the petitioner to choose whether the I129F or I130 moves forward. Otherwise, there are going to be people who are deprived of a congress-mandated (at least as to availability) visa by an arbitrary administrative decision.

[ciao]

Thanks Kyle. Very helpful indeed.

 

1. Opening a bank account

Got one. Had it for decades. Wife has one, too.

2. Transferring funds to the US

Got plenty, by any standards.

3. Making investments in the US

Got lots of stocks, part owner of a company.

4. Seeking employment in the US

Got a job (I'm an ex-pat here in China)

5. Registering children in US schools

Can't do that until we decide where we'll live.

6. Applying for a social security number; and

Got one

7. Voting in local, state, or federal elections

I could do that, I suppose.

 

So, I have 5.5 out of those 7.

 

I also have

8. The last few years' US tax returns (filed

jointly with my wife)

9. Property (including two cars) stored in the US

10. A US drivers license

11. An employment letter from my company stating that my

assigment in China ends on a specific date.

 

Seems like that ought to be enough, to me.

But, you guys are the experts. Is my optimism justified ??

 

I could file for an IR-1 visa via DCF at Guangzhou.

The domicile requirement is the only reason I'm considering K3.

[Kyle]

Thanks Kyle. Very helpful indeed.

 

1. Opening a bank account

Got one. Had it for decades. Wife has one, too.

2. Transferring funds to the US

Got plenty, by any standards.

3. Making investments in the US

Got lots of stocks, part owner of a company.

4. Seeking employment in the US

Got a job (I'm an ex-pat here in China)

5. Registering children in US schools

Can't do that until we decide where we'll live.

6. Applying for a social security number; and

Got one

7. Voting in local, state, or federal elections

I could do that, I suppose.

 

So, I have 5.5 out of those 7.

 

I also have

8. The last few years' US tax returns (filed

jointly with my wife)

9. Property (including two cars) stored in the US

10. A US drivers license

11. An employment letter from my company stating that my

assigment in China ends on a specific date.

 

Seems like that ought to be enough, to me.

But, you guys are the experts. Is my optimism justified ??

 

I could file for an IR-1 visa via DCF at Guangzhou.

The domicile requirement is the only reason I'm considering K3.

 

You have more than we had at this point in the immigration process. If you have a job waiting for you in the U.S. then domicile especially with all of your assets are not an issue. If the subject of domicile was the only thing keeping you from moving forward with the IR-1, well. . . I'd move forward with the IR-1 because to me, it seems like you have it covered. If there are other reasons why you might want to do the K-3 over the IR-1, and there may be, then, that's your call. I'm speaking only from a "domicile" standpoint.

Edited May 12, 2010 by Kyle (see edit history)