Domicile Requirement for USC Sponsor Petitioner?

[caeli 0]

Hi Everyone,

I am a US citizen and have been living in the UK with my husband for nearly 4 years. Our intention has always been to go to the US after I finished school and we got his green card. I now have indefinite leave to remain in the UK as I came in on a spousal visa and have been here long enough for that to be in place, but I definitely still live between the two countries.

In preparation of beginning his application I have been doing some research and I am concerned that my permanent resident status in the UK may affect my claim to US domicile status, which of course I must establish to be his petitioner and sponsor on the Affidavit of Support. I have been intending to indicate that my time abroad is temporary though extended.

I have the following things in place which I believe meet the requirements to establish domicile in the US, but I would appreciate feedback from anyone who may know a bit more on the subject.

-Permanent mailing address and residence in my family home in California (with parents) which I return to at least twice a year.

-Local bank and savings account for which the statements are sent to the permanent address.

-Valid California Drivers License registered to the permanent California address.

I can of course get a statement from my parents indicating that my US residence is with them and it has always been my intention to bring my husband to live with them there once everything was in order.

This subject seems to be a bit of a gray area unfortunately, so any advice would be appreciated.

Also, can anyone confirm that my foreign earned income cannot be used for the affidavit of support? We are planing on using assets based on this understanding, but it would sure be easier to use my income which is more than sufficient. It is earned in the UK and it is reported every year on my US tax return but it is my understanding that it cannot be used for the income requirement on the I-864 form, because it is not earned in the US, is that correct?

Thanks for your help.

Regards

[CarolynRitesh 0]

Also, can anyone confirm that my foreign earned income cannot be used for the affidavit of support? We are planing on using assets based on this understanding, but it would sure be easier to use my income which is more than sufficient. It is earned in the UK and it is reported every year on my US tax return but it is my understanding that it cannot be used for the income requirement on the I-864 form, because it is not earned in the US, is that correct?

Yes, that is my understanding as well - none of my Indian income can be used as a part of the I-864 income requirements, even if it does put me well over the 125%! The only way it would work is if your job and income will continue in the US - such as a transfer within a multi-national company.

I also was thinking of using assets (savings and a CD) and asked the Chennai consulate about that, and if they would recommend getting a co-sponsor, and they said that yes, they would. (But I have heard that the UK is more lenient about these things!)

[TinTin and Samby 11]

My recommendation is not to volunteer information not asked for. So, On all your forms, as petitioner, use your US Address. No need to volunteer the fact that you are also living in the UK. You "live in the US" and "visit extensively in the UK".

Regarding the foreign earned income, it is my understanding that that restriction is for the NON US Beneficiary, not the US Citizen Petitioner. Since you file US income tax returns and pay taxed on world wide income, all that income is available to be claimed in determining your ability to support your beneficiary. If you get a transscript from the IRS, it does not itemize foreign income vs US income. Taxable income is on one line, that is the number that the US embassy uses to determine your eligibility to sponsor your beneficiary.

Warm Regards,

Samby

[CarolynRitesh 0]

My recommendation is not to volunteer information not asked for. So, On all your forms, as petitioner, use your US Address. No need to volunteer the fact that you are also living in the UK. You "live in the US" and "visit extensively in the UK".

Regarding the foreign earned income, it is my understanding that that restriction is for the NON US Beneficiary, not the US Citizen Petitioner. Since you file US income tax returns and pay taxed on world wide income, all that income is available to be claimed in determining your ability to support your beneficiary. If you get a transscript from the IRS, it does not itemize foreign income vs US income. Taxable income is on one line, that is the number that the US embassy uses to determine your eligibility to sponsor your beneficiary.

Warm Regards,

Samby

Hi Samby,

I think you have some mis-information regarding this process. If the OP is doing DCF, she will have to prove that she has residence in the UK, or she will not be eligible for DCF. Also, if you use the 2555 form to get the Foreign Earned Income exclusion, your salary reported on the 1040 is zero, so that will not help either. If I am wrong, please someone correct me, but that is what I have had to do on my I-864 form...

[trailmix 77]

Hi Carolyn,

You are correct, the information samby has supplied is not correct.

Your foreign income cannot be used for the affidavit of support, except where that income will continue from the same source when you move to the United States (like a company transfer, as Carolyn mentioned).

That said, your IRS returns, although only showing foreign income, do go some way toward proving that you, as the sponsor, can actually maintain and income - that is their only value (but important none-the-less).

Caeli - when reading the instructions on the I-864, with regard to domicile, you need to decide what you are trying to prove. You basically either need to prove that you are only in the UK 'temporarily' (as Carolyn also mentioned, might be an issue with DCF if you do that) or you need to prove that you intend to return to the United States on a date no later than the intending immigrant.

After living there for 4 years, I think proving you are there temporarily might be a bit of a challenge. Proving the latter may be a simpler approach (that's your call).

The I-864 gives examples of items you can submit to prove that you intend to 'reestablish domicile'. We submitted:

- Copy of a letter from our lawyer confirming the sale of our house in Canada

- Letter from Social Security, confirming that I had applied for my Social Security number

- Moving quote from a moving company for our estimated moving date

- Letter from my Sister stating that we would be living with them in the U.S.

- Letter from me stating I would be entering the U.S. at the same time as my Husband

- Copy of my U.S. bank account statement

Apparently, from what I have read, London is a bit more lenient about the domicile issue, but not always:

http://www.visajourney.com/forums/index.ph...c=82350&hl=

Anyway, just some stuff to ponder when deciding how you want to approach this.

Good luck!

Edited March 3, 2008 by trailmix

[caeli 0]

My recommendation is not to volunteer information not asked for. So, On all your forms, as petitioner, use your US Address. No need to volunteer the fact that you are also living in the UK. You "live in the US" and "visit extensively in the UK".

Regarding the foreign earned income, it is my understanding that that restriction is for the NON US Beneficiary, not the US Citizen Petitioner. Since you file US income tax returns and pay taxed on world wide income, all that income is available to be claimed in determining your ability to support your beneficiary. If you get a transscript from the IRS, it does not itemize foreign income vs US income. Taxable income is on one line, that is the number that the US embassy uses to determine your eligibility to sponsor your beneficiary.

Warm Regards,

Samby

Sorry, the information is asked for and in fact I have to reveal my UK residence status in order to file my I-130 through the London USCIS office. Further there is no disguising it, I vote by away ballot, I have accounts here, I work here, I go to school here, I am property owner here and have definitely spent the majority of the last 4 years here. Further one need only open my passport to see the big indefinite leave to remain sticker that is in there.

I have no intention of lying or failing to reveal anything with the application process, it is a good way to get in a lot of trouble and if they find out you have tried to deceive them, they are far less likely to be lenient or understanding.

As for my income, I am fairly certain that it is not permitted for the affidavit of support on account of the fact that I cannot show it will continue when I get to the US and it is excluded from taxation as it is foreign earned and under a specific amount, though it does get declared every year in my tax return.

Sorry, I am going to have to go with some of the other posters on this one. Thanks though.

[caeli 0]

Hi Carolyn,

You are correct, the information samby has supplied is not correct.

Your foreign income cannot be used for the affidavit of support, except where that income will continue from the same source when you move to the United States (like a company transfer, as Carolyn mentioned).

That said, your IRS returns, although only showing foreign income, do go some way toward proving that you, as the sponsor, can actually maintain and income - that is their only value (but important none-the-less).

Caeli - when reading the instructions on the I-864, with regard to domicile, you need to decide what you are trying to prove. You basically either need to prove that you are only in the UK 'temporarily' (as Carolyn also mentioned, might be an issue with DCF if you do that) or you need to prove that you intend to return to the United States on a date no later than the intending immigrant.

After living there for 4 years, I think proving you are there temporarily might be a bit of a challenge. Proving the latter may be a simpler approach (that's your call).

The I-864 gives examples of items you can submit to prove that you intend to 'reestablish domicile'. We submitted:

- Copy of a letter from our lawyer confirming the sale of our house in Canada

- Letter from Social Security, confirming that I had applied for my Social Security number

- Moving quote from a moving company for our estimated moving date

- Letter from my Sister stating that we would be living with them in the U.S.

- Letter from me stating I would be entering the U.S. at the same time as my Husband

- Copy of my U.S. bank account statement

Apparently, from what I have read, London is a bit more lenient about the domicile issue, but not always:

http://www.visajourney.com/forums/index.ph...c=82350&hl=

Anyway, just some stuff to ponder when deciding how you want to approach this.

Good luck!

Yes, that is how understand the income issue as well, which is fine as the equity in our property is sufficient to meet the asset requirement.

As for the domicile issue, I am planning on trying to prove that my stay is temporary. From what I have learned, temporary can extend quite a long time as long as you can show you have always intended to return. I have been here a number of years, but it has always been our plan to return after I finish school which I think will act in my favour because degree programmes are several years in duration.

I feel I have maintained sufficient proof of my continued domicile in the US through the maintenance of a permanent address and residence there and financial accounts as well as continuing to renew my drivers license so that I have it when I return. These are all mentioned as acceptable indicators, but it seems to be decided on a case by case basis and I am hoping someone has had some personal experience with it and can provide some insight.

Unfortunately, going the way of "re-establishing" domicile is not feasible for us as I will not go before my husband to establish anything he requires and we will not sell our home until it is time to go. This is actually why I came to the UK in the first place. After we got married, we didn't want to have to be apart for an extended period so we thought we could get things in order together here and then go back at the same time. However, the process doesn't lend itself very well to those who do not wish to spend time apart while filing etc.

Thanks for your advice.

[trailmix 77]

Unfortunately, going the way of "re-establishing" domicile is not feasible for us as I will not go before my husband to establish anything he requires and we will not sell our home until it is time to go. This is actually why I came to the UK in the first place. After we got married, we didn't want to have to be apart for an extended period so we thought we could get things in order together here and then go back at the same time. However, the process doesn't lend itself very well to those who do not wish to spend time apart while filing etc.

Thanks for your advice.

Hi Caeli,

Reestablishing domicile does not mean that the U.S. citizen needs to return to the U.S. before the beneficiary. My Husband and I both live in Canada and would not have considered me moving to the U.S. ahead of him.

[elmcitymaven 9,712]

Caeli -- it isn't that difficult to re-establish domicile when going through London (although there is some anecdotal evidence that the evidence is now scrutinised more carefully). What you have listed as your proof of domicile is almost certainly adequate. I had a LOT less evidence than you that I was planning to re-establish as I never intended to move back to America (I mean, really, never ever! but things change in ways you can never predict) but it wasn't a biggie for us and quite a few others.

As mentioned above, you don't need to re-establish BEFORE your husband enters -- you just need to re-establish by the same time. This can mean doing your prep work beforehand (as you've done with keeping accounts open and a permanent address) and then entering at the same time as your husband.

Trailmix is right that it's difficult to prove you're only temporarily in the UK, especially with that Indefinite Leave stamp, and the list she provides of sample proof is spot on. I know it looks super-scary right now, but start compiling your domicile dossier and document everything you're doing to make the move. You'll do just fine.

[TinTin and Samby 11]

My recommendation is not to volunteer information not asked for. So, On all your forms, as petitioner, use your US Address. No need to volunteer the fact that you are also living in the UK. You "live in the US" and "visit extensively in the UK".

Regarding the foreign earned income, it is my understanding that that restriction is for the NON US Beneficiary, not the US Citizen Petitioner. Since you file US income tax returns and pay taxed on world wide income, all that income is available to be claimed in determining your ability to support your beneficiary. If you get a transscript from the IRS, it does not itemize foreign income vs US income. Taxable income is on one line, that is the number that the US embassy uses to determine your eligibility to sponsor your beneficiary.

Warm Regards,

Samby

First off, thanks to all who pointed out that I have some inaccurate understandings of this process. My appologees to the OP.

I completely missed the fact that this topic was posted in the DCF area...shame on me, as of course, DCF requires provable presence in the foreign country. Sorry about that. I certainly was not intending to advocate any notion of fraud or deception.

Regarding use of World Wide Income for petitioner support purposes, I am still confused about what others are saying are the rules. I have been a working expat in many countries over the years. All of my income, both earned in the US and earned in foreign countries has always had to be reported to the IRS on form 1040. Sure, there are exclusions available for some percentage of foreign income, just as there are for property taxes and medical expenses, et al. But that does not change the fact that that income was earned by me and thus available for my use in buying a house , a new car or supporting a beneficiary. Maybe someone could be so kind as to elaborate a bit more and help me understand better. Thanks!

Warm Regards,

Samby

[CarolynRitesh 0]

My recommendation is not to volunteer information not asked for. So, On all your forms, as petitioner, use your US Address. No need to volunteer the fact that you are also living in the UK. You "live in the US" and "visit extensively in the UK".

Regarding the foreign earned income, it is my understanding that that restriction is for the NON US Beneficiary, not the US Citizen Petitioner. Since you file US income tax returns and pay taxed on world wide income, all that income is available to be claimed in determining your ability to support your beneficiary. If you get a transscript from the IRS, it does not itemize foreign income vs US income. Taxable income is on one line, that is the number that the US embassy uses to determine your eligibility to sponsor your beneficiary.

Warm Regards,

Samby

First off, thanks to all who pointed out that I have some inaccurate understandings of this process. My appologees to the OP.

I completely missed the fact that this topic was posted in the DCF area...shame on me, as of course, DCF requires provable presence in the foreign country. Sorry about that. I certainly was not intending to advocate any notion of fraud or deception.

Regarding use of World Wide Income for petitioner support purposes, I am still confused about what others are saying are the rules. I have been a working expat in many countries over the years. All of my income, both earned in the US and earned in foreign countries has always had to be reported to the IRS on form 1040. Sure, there are exclusions available for some percentage of foreign income, just as there are for property taxes and medical expenses, et al. But that does not change the fact that that income was earned by me and thus available for my use in buying a house , a new car or supporting a beneficiary. Maybe someone could be so kind as to elaborate a bit more and help me understand better. Thanks!

Warm Regards,

Samby

Hi Samby,

I agree with you that we have to report our income on the 1040, and that it would be available to buy a house, etc. - but the information on the I-864 asks you to list what is shown as gross income on the 1040 line - and since I have earned under the $80,000 + mark for the last 3 years, I have been able to exclude all of my income for taxation purposes. So, that line is listed as $0.00 on my 1040, and has to be listed as such on the I-864. Instead, I have listed my assets (bank account information) for what I can contribute for the I-864 document. I hope that explanation is a little clearer than mud!

Since my job will not transfer to the US (Indian owned consulting company), I am not able to carry forward earnings as my salary will not continue once I return to the US... It took me a few days to work through that muddle!

Carolyn

[TinTin and Samby 11]

Thanks Carolyn and God Luck!

Warm Regards,

Samby