Residence: Grappling with Domicile Issues for the I-864

By: Ben Hart

Filing a visa petition at the USCIS office in Bangkok can be a boon to both the visa petitioner as well as the beneficiary. However, there are restrictions on who is able to submit a local filing. Further, locally filing overseas can create problems when it is time to file an I-864 Affidavit of Support.

The issue comes down to a determination of the petitioner's residence. In order to file an immigrant visa petition at USCIS Bangkok administrative rules require that the US Citizen petitioner be resident in Thailand for at least one year on a long term visa (Thai permanent residence, Non-immigrant B, O, ED, etc.). Some United States Citizens wish to file at a USCIS outpost abroad due to the fact that compared to the processing times of US Service Centers, filing overseas is often quite fast.

If the petition is approved by USCIS Bangkok, it will be forwarded to the US Embassy. In order to obtain the visa on behalf of the alien loved one the US Citizen Petitioner will need to file an I-864 affidavit of support showing that the petitioner can support the alien beneficiary at 125% of the poverty level. An issue arises because the US Citizen Petitioner needs a domicile in the United States in order to file the I-864. Under the US Immigration and Nationality Act, in order to have a domicile in the USA, one must have a legal residence in the USA. A legal residence requires an actual abode or dwelling. For an expat living outside of the country, showing an abode can be difficult if one abandoned their domicile in the past.

IS it possible for a petitioner to be domiciled in the United States if he does not retain a residence there? There exists an innate inconsistency when a US Citizen residing in Thailand files a USCIS petition in Thailand because by filing in Thailand the petitioner is acknowledging that his residence is outside of the US. However, at the Affidavit of Support phase, to establish domicile, petitioner will need a US residence.

The US Foreign Service has recognized this "disconnect." In order to square this circle the FAM (Foreign Affairs Manual) gives a foreign service officer the authority to accept an I-864 affidavit of support where the petitioner has taken affirmative steps to terminate his or her domicile in Thailand (or other foreign country), and has taken further affirmative steps to reestablish domicile in the United States. This regulation does not mean that the inherent conflict between these two requirements does not exist. Instead, it merely gives consular officers guidance about what to do in cases where this type of situation arises.

(The information imparted herein is meant for educational purposes only. This writing should not be utilized in place of individualized legal advice from a competent licensed professional. No Lawyer-Client relationship is created by reading this article.)

Article Source: http://articles-book.com

Ben Hart is a licensed attorney in US Federal District Court. He currently resides in Thailand and is Managing Director of Integrity Legal (Thailand) Co. Ltd. For more information please see US Tourist Visa Thailand or Fiance Visa Thailand

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