What is the Underlying Logic of the Petitioner's Domicile Requirement?

[JakeChi 0]

My wife (a citizen of Uzbekistan) and I are getting ready to submit our I-130 soon, and as I've been looking into what comes next I learned about the "domicile" requirement that comes into play during the NVC/I-864 stage. I've read a lot of threads on VJ about how people have approached the issue of proving domicile or intent to re-establish domicile, but I still haven't been able to figure out the underlying reasoning behind this requirement.

 

1. Why is the US Government SO concerned about situations where the US citizen might not have domicile in the US? If a married couple is going through the trouble of submitting a spousal visa application, isn't it kind of obvious that that they want to live together in the US once the visa gets approved? Doesn't all of the proof that goes into the I-130 already demonstrate the couple is in a bona fide marriage?

2. A common suggestion often proposed on the forums here is that the US citizen move to the US several months before their spouse. Doesn't that kind of separation actually call into question the legitimacy of the marriage? Especially if the US citizen currently has the means to cohabitate with their foreign spouse in another country? That is to say, on the one hand couples are expected to provide a lot of proof of being in a real marriage and having spent time together, and then on the other hand they're expected to physically separate for some unknown period of time? I'm sensing some kind of fundamental contradiction here.

 

For context - I've been living abroad with my partner for the last few years, and we would prefer to not have to be geographically separated for more than a few weeks at a time. In terms of assets and income we're fine for meeting the financial requirements for immigration. Because of all that I prefer not to make overly-binding plans regarding our move back to the US before she actually receives her visa (e.g. signing leases or job offers). Right now I'm just asking these questions so as to better understand the underlying logic of this whole domicile thing, so that we can roughly plan where we need to be in life once the I-130 gets approved.

[milimelo 4,477]

1. So people don't turn around and use green card as a tourist visa. 

2. Totally normal. Not a contradiction. Rule is that the USC petitioner must be in the US or come to the US when the immigrant comes. 

[carmel34 3,621]

25 minutes ago, JakeChi said:

I've been living abroad with my partner for the last few years, and we would prefer to not have to be geographically separated for more than a few weeks at a time.

The central concept you are asking about is that US immigration law views visa applications for immediate family members for reunification, i.e., in most cases, the petitioner, USC or LPR, lives in the USA while the beneficiary lives in another country, and the intent of the immigrant visa is for the beneficiary to live in the US (not visit occasionally) with the petitioner.  Some consulates/embassies are particularly strict on the US domicile requirement for the petitioner (for example Canada), because of the ease of travel between the two countries.  In your case, intent to re-establish a domicile in the US may be sufficient, and this evidence is not needed until the NVC and visa interview stages of the process.  If you have a written job offer in the US, requiring you to relocate on short notice, you should try filing the I-130 via the DCF (direct consular filing) process, as it is much faster (a few weeks or months), enabling you to move to the US together.  If you decide to try for DCF, contact the embassy/consulate where you live and ask if you qualify, because once you file an I-130 petition online with USCIS, you can't change to DCF later.  If DCF is not available for your circumstances and consulate/embassy, you can then file the I-130 online with USCIS.  Either way, you may not need to relocate before your spouse, if you have proof of US-based income that will continue after your spouse immigrates, or sufficient liquid assets for the I-864.  Make sure your IRS tax returns have been filed each year, as evidence of this will be needed during the process.  Good luck!

Edited May 29, 2023 by carmel34

[Boiler 45,467]

Short version is that it is a family reunification visa.

[Mike E 11,739]

38 minutes ago, JakeChi said:

1. Why is the US Government SO concerned about situations where the US citizen might not have domicile in the US

The correct answer is the  rule has nothing to do with family reunification, and instead is a requirement placed on anybody who signed I-864 on behalf of beneficiary receiving the immigration visa. This includes the primary sponsor (aka petitioner) and any joint sponsors.

See the following which cites the actual regulation:

 

The reason is that if the financial sponsor is not domiciled in the U.S. at the time the immigration visa holder enters the U.S., then the U.S. government cannot enforce the terms of I-864. So new immigrants would be free to illegally enjoy public charge, and the government would have no recourse. This would have a material impact on the federal budget. 

[Boiler 45,467]

They as reasons makes no sense. 

 

Find a case where the Feds have enforced the I 864

If you are using a Joint Sponsor then they have the money theoretically and have the Domicile requirement.

Domicile is such a vague term and many Consulates essentially ignore it. Bad luck if you are going through Canada.

You could be working for Walmart and the starting pay where I am allows you to sponsor 4 people, maybe 5. Now you may still be living in a tent.

Debts are not taken into account, so you could be working at Walmart with $200,000 of Student Loans

Etc, etc etc.

 

I know the Consulate I went through, London, needs very little if any documentation.

 

Welcome to the wonderful world of US Immigration.

[JakeChi 0]

1 hour ago, milimelo said:

1. So people don't turn around and use green card as a tourist visa. 

2. Totally normal. Not a contradiction. Rule is that the USC petitioner must be in the US or come to the US when the immigrant comes. 

1. Is that something people would actually try and do? Apply for a green card just to let them visit the US more easily without having to apply for a tourist visa on each visit? Why would the government even worry about that - wouldn't those people just have their green card revoked eventually because they stayed outside too long anyway?
2. I understand that's normal in the sense that "it's the rule", but imho there's still a logical contradiction here.

 

 

1 hour ago, Mike E said:

The reason is that if the financial sponsor is not domiciled in the U.S. at the time the immigration visa holder enters the U.S., then the U.S. government cannot enforce the terms of I-864. So new immigrants would be free to illegally enjoy public charge, and the government would have no recourse. This would have a material impact on the federal budget. 

This explanation makes sense - but if that's really the case, I wonder why they would still insist on domicile for the primary petitioner in cases where they have a US-based joint financial sponsor? That joint sponsor already has to prove domicile, meaning that the government already has recourse... even in the hypothetical situation where the petitioning spouse would choose to flee to some other country after their immigrating spouse became a public charge.

[Mike E 11,739]

13 minutes ago, JakeChi said:

This explanation makes sense - but if that's really the case, I wonder why they would still insist on domicile for the primary petitioner in cases where they have a US-based joint financial sponsor?

The law does not waive financial responsibility of the petitioner. So since responsibility is not waived, there has to be a theoretical way to enforce it. 
 

So what you are really asking is why the law requires the petitioner to be a sponsor if there is a joint sponsor?
 

I surmise that law was written that way to

 

* maximize the number of throats the executive branch could choke in the event the beneficiary used public charge. 

 

* reduce the inflow of marginal or fraudulent immigration cases: cases where the immigrant was unlikely to succeed. So for example, someone — whose American spouse is not living in U.S. — is either not likely to succeed or is in a marriage of convenience.

[Crazy Cat 41,836]

1 hour ago, JakeChi said:

Is that something people would actually try and do? Apply for a green card just to let them visit the US more easily without having to apply for a tourist visa on each visit?

We  see people who are trying to do that very thing.

[Mike E 11,739]

1 hour ago, JakeChi said:

Why would the government even worry about that - wouldn't those people just have their green card revoked eventually because they stayed outside too long anyway?

I’ve seen cases of LPRs absent for over 10 years who enter the U.S. with zero consequences. 
 

America is a constitutional republic with due process for nearly everyone, including LPRs. Revoking status of LPRs who have been away too long is expensive and takes years. And courts are loathe to make it any easier to revoke.
 

Easier said than done.

 

And because of that, and because millions of LPRs abuse due process, the laws and process to become an LPR have become more onerous over the past 40 years. You would be appalled at how easily I got LPR status in the 1980s.

Edited May 29, 2023 by Mike E

[JakeChi 0]

12 hours ago, Mike E said:

The law does not waive financial responsibility of the petitioner. So since responsibility is not waived, there has to be a theoretical way to enforce it. 
 

So what you are really asking is why the law requires the petitioner to be a sponsor if there is a joint sponsor?
 

I surmise that law was written that way to

 

* maximize the number of throats the executive branch could choke in the event the beneficiary used public charge. 

 

* reduce the inflow of marginal or fraudulent immigration cases: cases where the immigrant was unlikely to succeed. So for example, someone — whose American spouse is not living in U.S. — is either not likely to succeed or is in a marriage of convenience.

Thank you so much for this explanation. Understanding what the "concerns" are really helps me understand what we'll need to do to assuage them.

[Redro 4,611]

@JakeChi believe it or not... some people apply for the visa for their spouse with no intention of living in the US. The foreign spouse moves to the US and the USC remains in the foreign country. Completing subverting the "family reunification" directive. Some people will play the long game and marry someone for the benefit of having residency in a foreign country in exchange for the foreigner can have residency in the States. 

The rules are created because so many people have abused the process in the past. 

Also remember the visa is only valid until the medical expires- 6 months from medical. I'm sure various embassies got tired of reviewing applications requesting the visa is extended because the USC and foreign national weren't ready to move to the US yet and needed to request an extension. 

[Boiler 45,467]

There was one that amused me. Briefly this is it.

 

Parents move to US, son is too old to be a derivative.

 

Parents file for son.

 

Meanwhile son marrieds and has 2 children

 

Son goes to the interview and somehow forgets to mention he has a wife and children.

 

Consulate find out, deny him visa, charge him with misrepresentation. His parents have naturalised meanwhile so he has has moved to married child of USC.

 

Time passes F3 becomes current he interview again, so now he needs a waiver.

 

However Parents have by now retired and moved back to home country. Last I saw it he was trying to work out if he could show they have US Domicile by using address of Parents friends who they may visit and how he would put a waiver together showing hardship to parents if he can not immigrate even though they now live back in the home country with him.

 

There are some real classics out there.