I-864 Affidavits of Support for Nonresident US Citizen Sponsors
Most family-based immigrant cases, and a few employment-based ones as well, require the sponsor to provide an Affidavit of Support-generally either an I-864 or an I-864EZ.[i]
The purpose of the I-864 goes beyond simply reassuring the consular officer that the alien applicant is not likely to become a public charge, thereby avoiding inadmissibility under INA § 212(a)(4). The I-864 is also a legally enforceable contract whereby the sponsor and any joint sponsor agree that during the enforceability period of the contract they will:
Formal requisites of the Affidavit of Support are set out in INA § 213A [ii].
One difficulty that often arises with I-864s filed in the consular processing context is that in order to be a sponsor, the person must be (1) at least 18 years old; (2) a US citizen, national or lawful permanent resident; and (3) domiciled in the United States, or a territory or possession[iii]. The definition of 'domicile' is 'residence' plus intent: 'The place where a sponsor has his or her principal residence…with the intention to maintain that residence for the foreseeable future [v].'
This domicile requirement seems on its face to preclude US citizens and lawful permanent residents living abroad from filing Affidavits of Support, at least unless their employment satisfies the requirements of INA § 319(b)(1)[vi]. However, there are two escape hatches.
First, a person living temporarily abroad may file an Affidavit of Support if he or she can show, by a preponderance of the evidence, that he or she still has a domicile in the United States [vii]. This 'clarification,' as it was called by the USCIS in the comments to the Final Rule, is not incorporated into the definition of 'domicile,' but was added to the Final Rule in a new section 'to avoid confusion.[viii]'
In the case of would-be sponsors who maintain residences both in the US and abroad consular officers are required to first determine which one is the 'principal abode.' If the US residence is the principal abode the consular officer then must evaluate the question of domicile. This puts the burden on the would-be sponsor to prove that he or she
9 FAM 40.41 N6.1-1(b). The requirement of 'convincing evidence' is at odds with the USCIS regulation that requires only a preponderance of the evidence.
The other escape hatch goes beyond the text of the statute, which clearly requires a US domicile, in that it creates 'a single exception, under which a sponsor who is not domiciled in the United States (i.e., cannot show his or her residence abroad has been only temporary) may submit a Form I-864.[ix]' The exception: '[T]he sponsor satisfies the Department of State officer…by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant's admission.' 'Thus, the sponsor must arrive in the United States before, or at the same time as, the intending immigrant, and the sponsor must intend to establish his or her domicile in the United States.[xi]'
The Foreign Affairs Manual [xii] gives the following examples of activities showing that the sponsor is establishing a US domicile and intends to establish residence before or concurrently with the IV applicant:
Whether the I-864 is filed with the National Visa Center or, in that reduced number of countries where I-130 direct filing is still allowed, is reviewed in the first instance by the consular officer at the post, would-be sponsors who live abroad must be prepared to submit evidence of their residence and domicile beyond the mere listing of addresses on page 2 of the I-864. Especially in cases under the 8 CFR § 213a.2(c)(1)(ii)(B) exception, it would be prudent to append to the I-864 a statement from the sponsor, accompanied by documentary proof of the actions taken to establish domicile.
i See INA § 212(a)(4)(C) and (D).
ii The USCIS regulations are in 8 CFR Part 213a; the Department of State's regulations can be found at 22 CFR 40.41 and 9 FAM 40.41.
iii INA § 213A(f)(1).
iv 'Residence' is defined in INA §101(a)(33) as 'the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.'
v 8 CFR § 213a.1.
vi See 8 CFR § 213.2(c)(1)(ii)(A).
viii 71 Federal Register 35732, 35734 (June 21, 2006).
x 8 CFR § 213a.2(c)(1)(ii)(B).
xi Federal Register, id.
xii 9 FAM 40.41 N6.1-2(b).
xiii Cf. INA §213A(i)(1), which requires that the sponsor's Social Security Number be provided on the I-864
Susan Willis McFadden practices US immigration law with the firm of Gudeon & McFadden in London, England; She earned a BA, magna cum laude and Phi Beta Kappa, from Pomona College, graduated from Stanford Law School, and was admitted to the Arizona State Bar in 1981. She has published and lectured widely on a variety of topics in the fields of immigration and of US employment law and is a member of AILA. An earlier version of this article appeared in the Winter 2011 newsletter of the AILA Rome District Chapter, 'When in Rome…'
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