DEAR Atty. Gurfinkel:
My U.S. citizen father petitioned me in 2011 as a single adult child (Category F-1). About 3 years ago, he moved back to the Philippines. I am now receiving notices from the NVC that my visa is available and I need to pay fees and submit various forms.
Could I still apply for my visa even though my father is now living in the Philippines? He’s already 86 years old, has no income, is too elderly to travel, likes living in the Philippines, and I have a relative in the U.S. who is willing to submit an affidavit of support on my behalf instead of my father.
Very truly yours,
MC
Dear MC:
Unless your father is domiciled (living) in the U.S., your visa will not be issued. Therefore, your father would have to relocate back to the U.S., or you would need to find a different way to immigrate.
By law, the petitioner must submit an affidavit of support with all family-based petitions. To submit the affidavit of support, the law also requires the petitioner be domiciled (or living) in the U.S. Therefore, if a petitioner is not domiciled in the U.S., they cannot submit an affidavit of support, and the visa will not be issued. It does not matter the various reasons or justifications you might want to offer as to why the petitioner cannot move back to the U.S., such as being elderly, no income, having a substitute sponsor, etc.
“Domicile” means the petitioner’s principal “residence,” with the intention to maintain that residence for the foreseeable future. That means they cannot come to the U.S. to merely “visit” until the visa is issued. The petitioner is supposed to have the intention to maintain residence in the U.S. for the foreseeable future.
In fact, the State Department’s website has FAQs directly addressing the issue of the petitioner’s domicile in the U.S., and specifically state that a U.S. citizen cannot submit an affidavit of support if they are not living in the U.S. That website further confirms that if the petitioner does not have a domicile in the U.S., a joint sponsor cannot file an affidavit of support.
Therefore, I would advise you to convince Tatay to move back to the U.S. as soon as it is safe to do so with COVID-19. Also, the Embassy might want to confirm he is actually in the U.S., and ask that you submit a Certificate of Petitioner’s Status, which is a form for you to put a notarized photograph of your father holding up a current newspaper in front of a U.S. landmark, such as a post office, Walmart, etc., to make sure he is both alive and in the U.S.
If this situation applies to you, you may want to consult with an immigration attorney. But I want to be clear that the solution would likely require the petitioner to be domiciled in the U.S. No domicile, no visa.
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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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