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Affidavits and Domiciles - re-applying for visas and re-entering the US

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Ins and outs of your Green Card
Ins and outs of your Green Card

"I am American-born, living in Dublin with my Irish wife for the past 20 years. We want to move back to the U.S. She had a green card back in the nineties and handed it back when we returned to Ireland.

“Will the fact that she had a green card affect her new application? We are also concerned about the affidavit of support.  Can I file this even though we live in Ireland?  I have maintained a bank account in the U.S., and one of our children goes to college in New York.

“What kinds of thresholds are there? How to I prove that she won’t become a charge on the state? I did this back in 1988, but I had a job in the U.S. at the time. Now I don’t, not yet anyway.  We own a house in Ireland that we will sell. Both of us are confident about our job prospects when we return.”

The old green card that your wife had won’t have any bearing on her new application.  The affidavit process, though, will be a bit trickier for you to navigate.

Since 1996, all family-based immigrant visa petitions, and some employment-based ones too, require the sponsor to submit an affidavit of support.  This is a legally binding document that says the sponsor will assume financial responsibility in the event the immigrant becomes dependent on assistance from the U.S. government.  The document is effective for 10 years or until the immigrant becomes a U.S. citizen.

Affidavit sponsors are required to be “domiciled” in the U.S., which means that they’ve maintained a principal residence here and intend to do so in the future.  However, there are ways that affidavit sponsors living abroad like yourself can meet the U.S. domicile requirement – the fact that you have a bank account here and a child in school is helpful.

According to the State Department’s Foreign Affairs Manual, here’s how the domicile requirement can be satisfied by the affidavit sponsor:

*That he or she has taken steps to establish a domicile in the United States;
*That he or she has either already taken up physical residence in the United States or will do so concurrently with the applicant;
*The sponsor does not have to precede the applicant to the United States but, if he or she does not do so, he or she must at least arrive in the United States concurrently with the applicant;
*The sponsor must establish an address (a house, an apartment, or arrangements for accommodations with family or friend) and either must have already taken up physical residence in the United States; or
*Must at a minimum to satisfy that he or she intends to take up residence there no later than the time of the applicant’s immigration to the United States.

Affidavit sponsors have to demonstrate an income of at least 125 percent of the current federal poverty guideline for the sponsor’s household size.  If this is not possible, the sponsor can enlist the assistance of a joint sponsor.  Sponsors are also permitted to use the value of assets and those of the intending immigrant towards the income requirement.

The 2013 federal poverty guideline threshold for the 48 contiguous states for a two-person household is $19,387. This increases if the sponsor’s household is larger; for instance, the amount for a household of four is $29,437.

The U.S. Citizenship and Immigration Service provides useful information about the affidavit process at http://www.uscis.gov/files/form/i-864instr.pdf.

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