Establishing domicile when living abroad

[SileNZ 4]

My husband (NZ citizen) entered the US initially on a J-1 visa, so was subject to the 2-year residency requirement. We both moved to NZ in early January 2018 to fulfill this requirement.  My (US government) job gave me a 2 year leave of absence in order to fulfill this requirement. We maintain bank accounts/retirement accounts/investment accounts there (no real estate).  I will go back into pay status for my job in the US in the next week (using vacation) and will have to return to the US (with our dual citizen child) in mid-February, which will be before any interview. We will be living at my parents' house until my husband arrives and we can buy a place of our own (not possible until he arrives).

 

We submitted everything to the NVC in mid October, including a letter from my employer stating that I was on a leave of absence, that I intended to return to work at the end of January 2020, and my annual salary, records showing we have US bank accounts and credit cards, and investment accounts, along with a statement from me that I would take some annual leave starting at the end of January 2020 to reduce separation time from my husband but that I would be back in the US no later than March 1, 2020 and no later than my husband's arrival.  The NVC rejected the i-864EZ and noted that I was not qualified to use the EZ form but did not state why. We figured it was that they didn't accept my employer letter demonstrating expected income over the last year of tax return where I didn't make the threshold amount (maternity leave).  We resubmitted an i-864 with evidence of bank account amounts, but I am now concerned that the reason the form was rejected was actually domicile. 

 

Does it sound like we've submitted enough evidence (specifically that I kept my job) to establish domicile? If not, if my husband shows up to the interview with copies of my (new) US driver's license and pay stubs from my job, would that reduce any delay? We are starting to get concerned about the period of separation - particularly as I am pregnant and if he cannot make it by the third trimester, we will have to consider whether we give up on the whole process and my daughter and I return to NZ.  

[pushbrk 12,115]

Your I-864EZ would have been rejected because your current income being used is not W2 income.  It will be in the future, but is not currently.  Use the I-864.  Domicile will not be an issue if you show evidence you are returning to your US Government job before your husband immigrates.

[NikLR 13,220]

Sounds like it was rejected because you used assets not just w2 income. 

Resubmitting with the I-864 was the appropriate thing to do.  If it was for domicile they would have said that. 

[SileNZ 4]

Thank you so much - that's helpful. I had read the i-864ez to say that if you had other evidence of income (I had the letter from my employer) and at least one of your W2s was sufficient, it would be ok if you were relying on income alone.  I wish I'd realised this forum existed before we made that mistake.  We relied on assets as well when we resubmitted just to be sure.

 

Just to be clear - the evidence I have submitted so far shows I intend to return (I was hoping to be returning at the same time as my husband) - not that I have returned (which I won't for another month).  Is the NVC likely to deny based on that?  Assuming the 864 is accepted, by the time my husband has an interview, he will certainly have evidence that I have returned and re-established domicile. Thank you all for your help!

[pushbrk 12,115]

6 minutes ago, SileNZ said:

Thank you so much - that's helpful. I had read the i-864ez to say that if you had other evidence of income (I had the letter from my employer) and at least one of your W2s was sufficient, it would be ok if you were relying on income alone.  I wish I'd realised this forum existed before we made that mistake.  We relied on assets as well when we resubmitted just to be sure.

 

Just to be clear - the evidence I have submitted so far shows I intend to return (I was hoping to be returning at the same time as my husband) - not that I have returned (which I won't for another month).  Is the NVC likely to deny based on that?  Assuming the 864 is accepted, by the time my husband has an interview, he will certainly have evidence that I have returned and re-established domicile. Thank you all for your help!

I don't think you have anything to worry about on the domicile issue, if you provided evidence you are returning to your US Government job.  Without seeing your I-864, I have no idea whether your will be deemed to "qualify" based on "current income".  Returning to a job AFTER the visa is issued is NOT, "current income".  If you submitted evidence of enough current liquid assets to qualify with "zero current income" then NVC will send you a somewhat confusing letter that essentially says, the Consular Officer will make a judgment call.  They'll consider the totality of circumstances but I've never seen a positive outcome unless qualifications were (technically) met.

[SileNZ 4]

Thanks - that's helpful. I am pretty sure I should be good on income - I didn't have "zero" current income since I have had a job in New Zealand, I just barely missed the threshold for our household size since I'd taken a longer maternity leave, and my reading was that you can supplement the difference with evidence of current liquid assets.  If it's up to the Consular Officer, I'll make sure my husband takes along copies of my pay slips from when I've resumed work until the interview.

[pushbrk 12,115]

37 minutes ago, SileNZ said:

Thanks - that's helpful. I am pretty sure I should be good on income - I didn't have "zero" current income since I have had a job in New Zealand, I just barely missed the threshold for our household size since I'd taken a longer maternity leave, and my reading was that you can supplement the difference with evidence of current liquid assets.  If it's up to the Consular Officer, I'll make sure my husband takes along copies of my pay slips from when I've resumed work until the interview.

Your job in New Zealand is NOT current income in this context.  Look at the question about current income on the face of the I-864 itself.  It contains the words "you are using to qualify..."  You cannot use income to qualify unless it will continue from the same source once you return to the US.  This is explained clearly in the form instructions.

 

If you do not have three times the income requirement in liquid assets, you are going to need a qualified joint sponsor.

[pushbrk 12,115]

Just a side not for any reader.  It is critical to avoid "convenient interpretation" of instructions and requirements.  Stick to "literal interpretation".

[SileNZ 4]

Ok thank you for your help on domicile. 

 

I have looked at the "literal" instructions and I'm very comfortable that I meet the minimum income requirements.  But if I find out you are right in a few weeks, I'll come back and let you know.

[amerikelinka 16]

7 hours ago, SileNZ said:

Ok thank you for your help on domicile. 

 

I have looked at the "literal" instructions and I'm very comfortable that I meet the minimum income requirements.  But if I find out you are right in a few weeks, I'll come back and let you know.

pushbrk is right about this! Your NZ income can't be used to meet the minimum income requirements. Must be US income. You either need a joint sponsor or to qualify based on assets. I'm in a similar situation — I study and work overseas, and my salary is (at first glance) enough to qualify as a sponsor for my husband, except that this income will end as soon as my husband and I move back to the US (I'm employed by a foreign entity, not a US-based organization). Therefore, my father has to be my joint sponsor.

[SileNZ 4]

Sorry I should have clarified why I’m comfortable - I don’t think he’s wrong about the nz income although I don’t see anything about needing to prove the income will continue in the instructions. I don’t need my nz income (although it shows up on my tax returns) to qualify. I am still employed by my US employer, income from which is demonstrated on two of my last three W2s and by the letter from my employer - a job from which I will resume receiving income next week. In addition I have submitted evidence of sufficient (Liquid) assets to meet the requirement even if they decide not to count that employment income. Thank you for your help.

[pushbrk 12,115]

7 minutes ago, SileNZ said:

Sorry I should have clarified why I’m comfortable - I don’t think he’s wrong about the nz income although I don’t see anything about needing to prove the income will continue in the instructions. I don’t need my nz income (although it shows up on my tax returns) to qualify. I am still employed by my US employer, income from which is demonstrated on two of my last three W2s and by the letter from my employer - a job from which I will resume receiving income next week. In addition I have submitted evidence of sufficient (Liquid) assets to meet the requirement even if they decide not to count that employment income. Thank you for your help.

If your US income will resume next month, I advise taking an updated I-864 to the interview, stating and documenting "current income".  It is NOT current NOW, and you've already submitted an affidavit stating the wrong current income.  Two of your last three W2's are not "current income".  It's past income.  You do not qualify based on past income or a job that has not yet resumed.

 

If you have three times the required income in liquid assets, you should be fine though.

 

What you do or do not see in the instructions does not necessarily represent what IS THERE.  Not one of my first thousand rodeos on this subject.

[SalishSea 16,774]

6 minutes ago, pushbrk said:

If your US income will resume next month, I advise taking an updated I-864 to the interview, stating and documenting "current income".  It is NOT current NOW, and you've already submitted an affidavit stating the wrong current income.  Two of your last three W2's are not "current income".  It's past income.  You do not qualify based on past income or a job that has not yet resumed.

 

If you have three times the required income in liquid assets, you should be fine though.

 

What you do or do not see in the instructions does not necessarily represent what IS THERE.  Not one of my first thousand rodeos on this subject.

Could it be that OP means that she’s on a paid leave?

[pushbrk 12,115]

14 hours ago, Jorgedig said:

Could it be that OP means that she’s on a paid leave?

She has clearly stated otherwise.

[SileNZ 4]

So we've been DQ'd and are awaiting an interview date.  I am now back in pay status with my job in the States (on annual leave) and I will be physically back there before the interview.  We already planned on my husband submitting a revised i-864 with the other documents prior to the interview with the new address, deleting my NZ employer, and stating my current income to reflect my salary in the States (along with an updated employer letter from my US employer and recent pay stubs).  My income in 2020 (calculated using pay stubs for the remaining pay periods in 2020) is above the FPL for our household size, and I assume I can now correctly list that as I'm getting a paycheck again. In addition, we will still include all the assets that we listed on the approved i-864 (more than 3x the FPL) as that is how we were DQ'd, I assume.

 

However, we received the message below from the NVC and are wondering if we should also bring a separate i864 (and supporting docs) with a joint sponsor just in case they think my US income is too recent? We don't want to unnecessarily burden my parents or cause a delay in processing with all that information if it seems like we already meet the requirements. But if it's a close call, we'd rather be safe than sorry.

 

[Petitioner] does not meet the minimum income requirement to sponsor the intending immigrants for this case. The consular officer will make a decision regarding this requirement at the time of the interview. For more information, please visit https://www.uscis.gov/i-864p. To avoid delays, an additional Affidavit of Support Form I-864 for a joint sponsor may be submitted.