Saturday, July 24, 2010

Intent to Return (Animus Revertendi)

Domicile as I have come to know in my early studies of law is not synonymous to residence. You can be a resident of another country (let's say the Philippines) and yet still retain the U.S. as your domicile. The determining factor as I have come to learn then was the intent to return or in latin, "Animus Revertendi". There could be many badges of ones intent to return -- like maintaining real property in your place of domicile, maintaining investments, maintaining a bank account, etc.

You may ask why my sudden interest on the subject. Well, we are on the next stage of our U.S. visa process, and inspite that we haven't received mail yet from NVC (we changed the address to a US mailbox), I have decided to do advance reading on the subject. At this point, we are about to collate documents for the Affidavit of Support and I am wondering if my husband is qualified owing to the residency (domicile) requirement provided therein. Although the website I am looking at appears to use it interchangeably, the definition was more clearly laid down in a separate website I found.

Subject: 1-864 Affidavit of Support Update
No. 4 - Domicile

Ref.. (A) State 228862 (B) State 211673

xxx

Domicile Defined

4. The new regulations define domicile as follows:
'Domicile means the place where a sponsor has a
residence, as defined in section 101(a)(33) of the
Act in the United States, with the intention to maintain
that residence for the foreseeable future, provided,
that a permanent resident who is living abroad
temporarily shall be considered to be domiciled in the
United States if the permanent resident has applied for
and obtained the preservation of residence benefit under
section 316(b) or section 217 of the Act and provided further,
that a citizen who is living abroad temporarily shall be
considered to be domiciled in the United States if the
citizen's employment abroad meets the requirements of section
319(b)(1) of the Act." (Note: "The Act' refers to the INA.)

Residence Defined - INA Section 101 (a) (33)

5. Section 101(a)(33): The term "residence" means 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.

6. To be considered as having a principal residence
in the United States, individuals must demonstrate
that their sojourn abroad is temporary and that they
have maintained ties to the United States. They
can demonstrate compelling ties through a convincing
combination of the following types of actions:
voting in U.S. State or Federal elections, paying
U.S. income taxes, maintaining property, a residence
or a permanent mailing address in the U.S., maintaining
bank accounts or investments in the U.S., etc.

Qualifying Overseas Employment - INA
Section 319(b)(1)

7. Section 319(b) (1) defines qualifying employment abroad
as follows:

xxx

What Does it Mean?

8. To qualify as a sponsor, a petitioner who is
residing temporarily abroad must have a principal
residence in the U.S. (i.e. a place in the U.S.
to which he or she intends to return - the definition
of domicile in para 4 includes the issue of
intent) and/or work in one of the categories listed
in para 7. Legal permanent resident sponsors
must further demonstrate that they have maintained
their LPR status. A U.S. citizen or legal
permanent resident spouse or dependent who has
maintained a residence in the U.S. and/or whose
spouse/parent works in one of the categories listed
in para 7 would also qualify as a sponsor.

9. Many U.S. citizens and legal permanent residents
reside outside the United States on a temporary basis,
usually for work or family considerations. Temporary
is a relative term and may actually cover an extended
period residing abroad. As long as the sponsor has a
residence in the U.S., as defined in paras 5 and 6, to
which he or she intends to return, and/or if he or she is
employed per para 7, the sponsor can be considered to be
domiciled in the U.S.


So do you think my husband qualifies? I think he does -- his U.S. property remains under his name, we are still paying property tax for that, he has a U.S. bank account and his investments (private and public retirement) are all still there.

So in the end if USCIS makes it difficult I will make a case for why he still has his domicile in the U.S.

2 comments:

  1. Thank you counselor, you may have helped many with that research. I already sent a freind with a non-related US residency issue here to read what you dug up. I will file this in my little know but often important facts about living in the Philippines file.

    Just like the issues that surface regarding dual citizenship, "dual residency" is also possible under US law ...or we certainly hope it is. After all, even though I. for example, do not know -when_ I might return to the US, I certainly am likely to someday. I have bank accounts, investments, pay taxes, receive mail, even have a US phone number, so I might be a Philippine resident for some purposes, but I am (hopefully) still a US resident for other purposes. See why I said there is a wide open "specialization niche" in the legal profession regarding these issues

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  2. You are welcome. I have decided to write down some of my thoughts and research to better organize my own thoughts.

    In the end it is an advantage both to myself and to my readers. :)

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