Is U.S. Residency Required to Immigrate my Family?

By: Attorneys Robert L. Reeves and Flomy J. Diza

U.S. citizens who reside abroad frequently encounter problems when immigrating their foreign spouse and children to the United States. To initiate the visa process, a U.S. citizen may file a visa petition with the U.S. Citizenship and Immigration Services (USCIS) in the regional office having jurisdiction over the place where they intend to reside or with the USCIS office connected with the U.S. Consulate or Embassy having jurisdiction over the area he or she is now living. The petitioning process is only the first step. Some overseas offices have refused to accept family immigrant visa petitions or have discouraged overseas filings. However, one can always file in one of the four regional service centers in the United States by mail.

After the visa petition has been approved, the U.S. citizen petitioner commonly experiences difficulties with the affidavit of support domicile requirement. U.S. residency or domicile is necessary to complete the immigrant visa processing. The petitioner must accept legal responsibility for financially supporting his family members. The law requires that he sponsor them by completing and signing a document called an affidavit of support. If the primary sponsor does not have sufficient income, a second sponsor will be required to execute an affidavit of support. The secondary sponsor can be anybody with adequate income who is a U.S. citizen or permanent resident, at least 18 years old and domiciled in the United States or one of its territories. The petitioner will still need to file the affidavit of support and meet the domicile requirement.

U.S. domicile is defined as the place where the petitioner has a residency in the U.S. Many U.S. citizens temporarily reside outside the U.S. for employment purposes. Petitioners who can show that they have a domicile in the U.S., but who are now living temporarily abroad because of certain types of employment shall be considered to have retained their domicile in the U.S. The following are the qualifying types of employment: employment by the U. S. government, an American institution of research, an American firm or corporation engaged in the development of foreign trade with the U.S., a public international organization in which the U.S. participates by treaty or statute; and authorization to perform ministerial or priestly functions or being engaged solely as a missionary of a religious denomination having a bona fide organization in the U.S. and is stationed abroad pursuant to that calling. Usually, these categories do not encounter substantial problems establishing domicile in the U.S.

The problem occurs when the petitioner is residing abroad and is not in one of the above referenced categories. He or she must then establish residency in the U.S. in order to satisfy the affidavit of support requirements. There are several ways to establish residency or to meet the domicile requirement. Of course, one can move back to the U.S. and establish residency. Other ways to establish residency include: (1) establishing an address in the U.S.; (2) applying for a social security number; (3) applying for a driver license; (4) setting up a bank account and transferring funds to the U.S.; (5) finding employment in the U.S.; (6) voting in a local, state or national election; (7) registering ones children in U.S. schools; and (8) making investments, etc. It is not necessary for the petitioner to travel to the U.S. ahead of his/her family to establish residency or domicile. There is no requirement that residency has been established for any length of time, only that some of the above referenced steps have been taken. Of course, the more steps taken, the more likely the affidavit of support requirement will be met.

This is a problematic area of law in which many U.S. citizens living abroad experience difficulties, as there are many unforeseen obstacles. We urge U.S. citizens living abroad to seek a knowledgeable immigration attorney to guide them in this complex process.