Ginblossom

OK, I have a few moments to myself after a long December of writing my Masters essays, and I promised Rete I would do this, so here it is. Rete, if you think it is worthy, feel free to sticky or wiki.

Call it if you like the Ginblossom guide to proving US domicile when you have been outside the US for a while. I define a while, as being more than two years. I hasten to add this isn't foolproof, or comes with a guarantee of success but perhaps it will help. 10 step guide, and easier than AA!!

I won't address issues with financial sponsorship and will simply assume that you do not have enough assets as you have been outside the US for a while. Of course, if you do, then great, and you can skip the next bit.

On the basis you do not have enough assets, then you will need a joint sponsor. Call in-laws, relatives, friends with decent jobs, neighbours, and the like and see if they will agree to be the j-s. Remember to explain what it means and what their responsibilities are.

If they are happy to help you, do the paperwork, and that is step one out of the way. Do ensure that they provide plenty of financial support evidence. Choose the wealthiest person you can find to help you. You do not want to scrapping around the borderline of support guidelines.

Next steps...proving domicile.

Number one, ask yourself what evidence you have already that you can use and the next question you should ask yourself (out loud is always good) is how can we prove that we are serious about breaking ties to the UK.

Next steps, getting US proofs.

2. Make sure the US spouse has filed a US tax return each year. Even if its nil.

3. If you are going to reside with an inlaw, then you should look to formalise that relationship perhaps with a contract. Others will disagree with me, but when we applied, we had a letter from my inlaws saying we could have stayed with them, it was rejected on the basis that it was too informal. The CO said explicitly, unless you have a lease, you will not succeed. That is NOT to say that it is like that in each case, but that scenario is occurring more frequently.

4. Provide proof that you are house-hunting, job-hunting, enrolling kids in a local school, enrolling in local education programs yourself (if applicable), car ownership/title. All of this will help prove that you are active in establishing a life in the US. After all, we all need to live somewhere to live and income.

5. Going back to one, if you don't already have this, get your spouse to have a US bank account, US drivers license, proof of their US voting record. All of this will prove that they haven't given up their US life entirely.

6. Perhaps your spouse have been successful in finding a job, and may have a letter from the new employer stating that - that would be very useful. Failing that, evidence that they have been very active in trying to secure employment. Again, think of the basics, where is your US income coming from? If you are merely job hunting that is fine but prove that you are.

7. The big question these days is evidencing intention to leave the UK. Remember you only have to prove your intent sufficiently - you do not actually have had to left the UK.

Good ways of proving this is a letter from a estate agent proving the property where you live is for sale, or that your landlord has noted your intention to relinquish the lease you have. Perhaps you have given notice to your employer, that too would be useful.

Perhaps you have also relinquished financial affairs in the UK - sold investments, closed bank accounts. Once again, prove that your life in the UK is winding down. After all, if you are going to live in a foreign country, you wouldn't subscribe to another year of Sky Sports, you have to consider how the CO will look at your application in this context.


8. The 100% foolproof way of proving domicile in the USA is for your US spouse to leave the UK and go to the US ahead of you. Being apart will suck but it will get you the end result.

9. All of the above have worked for different people at different times. But remember that the person assessing your application may have got dumped last night, might have a bad hangover, or might just be a evil spirited pig.

What you have to do is give them so much evidence they cannot turn you down. They have to satisfy themselves and their employer - i.e. the United States Government - that you will not be a public charge and you are going to have a meaningful life there.

10. Ignore all the friends' advices that by the way, they have green cards and pop over to the States once in a while to top it up. You are exporting your lives and living on a different continent, and you need to be serious about that. Dropping in to the States for a summer of sun isn't the same as living there.

Do remember the most important rule of all is to understand the instructions given to you and give them what they ask for. Each case is different.

Finally, congratulations, you have made it this far. You have got through the preliminaries and some way to achieving what many millions of people will never get the chance to do. Now, you have to close the deal. Get the proof you need, and you will find yourself with a visa stamp and the chance to live in the world's greatest country. Good Luck!

Rete

Thank you, Ginblossom, for the great write up. Since I know nothing about the wiki and how it works, I am asking by PM the knowers and doers to have a go at converting this to the wiki if they feel it is essential.

If they don't feel that it is needed in the wiki then we will most certainly make it a sticky for others who find that proving domicile intent for the US Consulate is needed.

Again, many thanks and welcome to the US.

jeffreyhy

Gb,

Nice work.

You might want to fit in a reference to 9 FAM 40.41 Notes, N6.1-2 Establishing US Domicile. It's the DoS' own guide to proving US domicile.

I once working with an attorney who often said, when I'm preparing a case I don't read material telling me how I should prepare my case, I read material telling the other side how they should prepare their case. Once I know what the opponent is doing I can make my own plan to deal with it.

In this case, knowing what consular officer's are instructed to be looking for can help a sponsor to give them what they want.

Regards, JEff

ian-mstm

For those who can't be bothered, I've copied it below. Note the red sections!

Ian

================

9 FAM 40.41 N6 "DOMICILE"


9 FAM 40.41 N6.1 Definition
(CT:VISA-1126; 12-03-2008)
For the purposes of INA 213A, "domicile" means:

(1) The place where a sponsor has his or her principal “residence” (as defined in INA 101(a)(33)) in the United States, with the intention to maintain that residence for the foreseeable future.
(2) A legal permanent resident alien (LPR) living abroad temporarily is considered to have a domicile in the United States, if he or she has applied for and obtained the preservation of residence benefit under INA 316(b) or INA 317.
(3) A U.S. Citizen living abroad whose employment meets the requirements of INA 319(b)(1) is considered to be domiciled of the United States.


9 FAM 40.41 N6.1-1 Maintaining U.S. Domicile
(CT:VISA-1317; 09-24-2009)

a. Unless the petitioner meets the conditions outlined in 9 FAM 40.41 N6.1-2 below, a petitioner who is maintaining a principalresidence outside the United States could not normally claim a U.S. domicile and would be ineligible to submit Form I-864, Affidavit of Support Under Section 213A of the Act. In order to provide an AOS for his or her relative, such a petitioner would have to reestablish a domicile in the United States. (See 9 FAM 40.41 N6.1-3, below.)

b. However, in a situation in which the petitioner has maintained both a U.S. residence and a residence abroad, you must determine which is the principal abode. 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.


9 FAM 40.41 N6.1-2 Establishing U.S. Domicile
(CT:VISA-1317; 09-24-2009)

a. A petitioner living abroad not meeting the criteria in 9 FAM 40.41 N6.1-1 who wishes to qualify as a sponsor must satisfy you:
(1) That he or she has taken steps to establish a domicile in the United States;
(2) That he or she has either already taken up physical residence in the United States or will do so currently with the applicant;
(3) The sponsor does not have to precede the applicant to the United States but, if he or she does not do so, he or she must at least arrive in the United States concurrently with the applicant;
(4) The sponsor must establish an address (a house, an apartment, or arrangements for accommodations with family or friend) and either must have already taken up physical residence in the United States; or
(5) Must at a minimum to satisfy you that he or she intends to take up residence there no later than the time of the applicant’s immigration to the United States.

b. Although there is no time frame for the resident to establish residence, you must be satisfied that the sponsor has, in fact, taken up principal 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 mayinclude 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; and
(7) Voting in local, State, or Federal elections.

c. If a petitioner cannot satisfy the domicile requirement, the petitioner fails to qualify as a “sponsor” for the purposes of submitting Form I-864, and a joint sponsor cannot be accepted and the applicant must be refused pursuant to INA 212(a)(4).


9 FAM 40.41 N6.1-3 U.S. Domicile for Employment-Based Petitioner
(CT:VISA-1317; 09-24-2009)

Employment-based beneficiaries who are petitioned for by U.S. citizen or permanent resident alien relatives or by entities in which such a relative has a significant ownership interest are required to submit a Form I-864, Affidavit of Support Under Section 213A of the Act. However, the HS/USCIS has determined that Congress did not intend to impose this requirement on a petitioning relative, or a relative with a substantial interest in a business enterprise who is not a U.S. citizen or a lawful permanent resident (LPR) and is not domiciled in the United States. In these cases only, the lack of Form I-864 will not be an impediment to admissibility. We concur with this finding; therefore, in these cases, lack of a Form I-864 would not be an impediment to visa issuance.

================

Ginblossom

Yes, a good idea and one that Ian has kindly sorted.

Rete

Strangely GB's wife did nearly all of these things and the I-130 was still rejected because the Conoff felt she did not prove her intent to return to the US.

Quote:

(1) Opening a bank account;

She had a bank account; a letter guarantying employment once inside of the US; a letter from her parents stating they were going to be residing with them until they found a place of their own; she already had a social security number; she was already registered to vote and I believe did so while living in the UK.

Quote:

c. If a petitioner cannot satisfy the domicile requirement,

Don't know why a link talking about methods to satisfy the condition of intent to re-establish US domicle talks about the sponsor being rejected as a sponsor for an I-864. But, hey, it is the Department of State.

jeffreyhy

As Mr.F often used to say, the devil is in the details. Two people can report that they submitted the same list of items, but differences in the content of those items could paint two different pictures.

And then there's the fact that 'beauty is in the eye of the beholder', and two different consular officers can look at the same submission and have differing opinions about it.

Bottom line, these are guidelines that can help achieve a positive outcome but they cannot guarantee a positive outcome.

Regards, JEff