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What is the difference between residence and domicile and why does it matter

U.S. citizens or lawful permanent residents (green card holders) who seek to sponsor a relative or spouse in the United States must understand the subtle but important distinction between their “domicile” and their “residence” when filing Form I-864, Affidavit of Support. This article discusses the difference between domicile and residence in this context, and how sponsors can establish and prove their domicile for Form I-864.

What is the Affidavit of Support (Form I-864)?

The Affidavit of Support, known as Form I-864, is a United States immigration form that a sponsor must sign when agreeing to take financial responsibility for an applicant immigrating to the United States. Usually, the sponsor is the same person who petitions for an immigrant visa on behalf of the applicant seeking to immigrate to the United States.

In order for Form I-864 to be approved, the sponsor must show that they meet certain requirements, including age of at least 18, income of equal to or higher than 125% of the U.S. poverty level for the sponsor’s household size, and domicile in the United States.

Form I-864 must be accompanied by required documentation, including proof of the sponsor’s current employment and his or her most recent U.S. federal income tax return. This information is necessary to show the sponsor meets all age, income, and domicile requirements and so that the immigrant visa application can be approved. 

What Does “Domicile” and “Residence” Mean? 

How Domicile is Defined

The United States Citizenship and Immigration Services (USCIS) refers to a person’s “domicile” as their “true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.”

From this definition, it is clear that someone can be a resident and domiciled in two different places. In fact, an individual may be a resident to more than two places. In most cases, a person is a resident and domiciled in the same place.

Both domicile and residence are important to sponsoring a relative or spouse to come to the United States because the sponsor must establish his or her domicile in the U.S. in order to be a sponsor. Because a person’s domicile is the place of their principal residence, and where they intend to maintain residence for the foreseeable future, understanding the meaning of “residence” is important to understanding the definition of domicile for the purpose of sponsorship.

How Residence is Defined

The USCIS defines residence as the person’s principal actual dwelling place in fact, without regard to intent. Thus, a person may be a resident to more than one country — there is no requirement that they live in a particular place for a specific period of time in order for that place to be considered his or her “residence.”

It is important to note that residence in the United States is not the same as being physically present there. Physical presence refers to the actual time a person spends in the United States, regardless of whether or not they are a resident there. However, the longer a person stays in a particular place, the more likely it is that they can establish that place as their residence.

Why is Domicile and Residence Important? 

Domicile is an important requirement for U.S. citizens or lawful permanent residents who wish to have their relatives or spouse join them in the United States. Understanding the difference between residency and domicile when filling out Form I-864 is crucial to being approved as a sponsor for relatives or a spouse.

General Requirements for Sponsoring a Relative or Spouse

In order for an immediate relative or spouse of a U.S. citizen or lawful permanent resident (green card holder) to come to the United States, they must have a sponsor who attests that they will financially support/sponsor their immediate relative or spouse. Besides having the financial means to sponsor their relative or spouse, a sponsor must be at least 18 years of age and be domiciled in the United States. An individual who fails to establish their domicile in the United States when applying to be a sponsor for his or her relative or spouse will have their Form I-864 denied. 

What is the Domicile Requirement?

An individual may qualify as a financial sponsor for their relative or spouse if they are domiciled in any state in the United States, territory or possession of the United States, or the District of Columbia (Washington D.C.). Lawful permanent residents who sponsor relative(s) or a spouse must also maintain their lawful permanent resident status in order to be a sponsor. 

How to Prove the Domicile Requirement?

A sponsor can prove they are domiciled in the United States by submitting documentation with Form I-864, including: 

  • Federal income tax returns; 
  • Pay stubs or tax documents from United States employer; 
  • Home ownership or current lease, plus evidence of maintaining residence; 
  • U.S. bank account information or other investments; 
  • Children’s registration in school; 
  • U.S. citizen sponsors who have registered to vote. 

Sponsors Who Currently Live Outside the United States

Sponsors do not necessarily have to be currently living in the United States in order to establish that the United States is where they are domiciled. If the sponsor is not currently living in the United States (e.g. due to employment) the domicile requirement must be proven through the submission of evidence that establishes: 

  • The sponsor is living abroad temporarily while maintaining domicile in the United States; 
  • The sponsor intends to establish in good faith his or her domicile in the United States no later than the date of the intending immigrant’s admission to the United States; 
  • The sponsor is living temporarily abroad and employed by: 
    • The U.S. government and stationed abroad; 
    • A U.S. institution of research recognized by the Secretary of Homeland Security; 
    • A U.S. firm or corporation or its subsidiary engaged in whole or in part in the development of foreign trade and commerce;
    • A public international organization in which the United States participates by treaty or statute;
    • A religious denomination or group having a genuine organization within the United States; 
    • A religious denomination or group or interdenominational mission organization within the United States as a missionary.

Sponsors who live abroad temporarily can prove they still maintain domicile in the United States by providing documentary evidence, including:

  • Proof the sponsor has property in the United States; 
  • Records of the sponsor paying taxes in the United States; 
  • Records of the sponsor’s U.S. bank or investment accounts; 
  • Proof of a permanent mailing address in the United States; 
  • Records of the sponsor voting in the United States; 
  • Proof that a temporary stay is authorized by a foreign government; 
  • Proof that the sponsor is a student studying abroad temporarily. 

Sponsors Who Travel

Because domicile is defined as a person’s “true, fixed, principal, and permanent home,” temporary travel outside of the U.S. does not change a person’s domicile. This is particularly true for sponsors who are U.S. citizens traveling abroad. 

Sponsors who are lawful permanent residents may run into trouble when traveling abroad because absence from the United States for a long period of time, such as over a year, may be deemed by the USCIS as evidence that they did not intend to make the United States their permanent home and thus have abandoned their permanent resident status.

Lawful permanent residents who plan to travel outside of the U.S. for longer than one year should file Form I-131, Application for Travel Document before exiting the United States. Doing so helps establish their intent to return to the U.S. and permanently reside there. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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