We often talk to U.S. citizens who currently live outside of the United States and are now planning to return with their family. These cases are usually not much different from any other family immigration case, but there are a few important factors to consider as you prepare to move back to the United States.
Just like any other case, you must file an I-130 petition for your family member along with evidence to prove your relationship. Once the petition is approved, your family member immediately qualifies to apply for their immigrant visa and set up their appointment for interview at the U.S. consulate abroad to determine their admissibility. If approved, they may be admitted to the U.S. as legal permanent residents. As a U.S. citizen, you qualify to bring your spouse and minor children to the U.S. on the fastest immigration track available. This means that you should make your plans for return well in advance of starting the process.
If your spouse or child is already in possession of a valid, unexpired nonimmigrant visa (like a tourist visa), they may be allowed to enter the U.S. as a nonimmigrant before starting the process of applying for their legal residency. Many family members of U.S. citizens like to exercise this option before deciding if they want to live in the U.S., especially if they have never been or haven’t been to the area where you intend to live. If you choose to do this and they decide they would like to reside in the U.S. permanently, they may apply for legal residency from within the U.S. and attend all appointments locally.
The most important thing to know in this process is that after the petition is approved, in order for you to qualify to continue to sponsor their application, you must meet the “domicile requirement” – that is, that your principal place of domicile is in the United States. If you are not currently living in the United States, you may meet the domicile requirement if you can submit evidence to establish that any of the following conditions apply: You are employed abroad by the U.S. Government or certain U.S. firms, corporations, or religious organizations; you are living abroad temporarily and can prove you have maintained your domicile in the U.S.; or that you intend in good faith to reestablish your domicile in the United States no later than the date of your family immigrant’s admission as a legal resident.
You will also be required to provide either an Internal Revenue Service (IRS) transcript or a photocopy of your Federal individual income tax return for the most recent tax year. You do not have to submit tax returns that you filed with any foreign government unless you claim that you were not required to file a Federal individual income tax return with the United States Government and you wish to rely on the foreign return to establish the amount of your income that is not subject to tax in the United States. If you were not required to file a Federal income tax return under U.S. tax law for any other reason, attach a typed or printed explanation including evidence of the exemption and how you are subject to it. As a U.S. citizen, claiming a foreign residence does not exempt you from filing a U.S. Federal income tax return. If you were required to file a Federal income tax return during any of the previous three tax years prior to your family member’s application for admission but did not do so, you must file all late returns with the IRS and attach an IRS-generated tax return transcript documenting your late filing before the case can be approved.
FIND OUT WHERE YOU STAND! You may already qualify for a benefit that you are not aware of yet. If you have never talked to an immigration attorney about your situation before, now is the best time to do so – before the new administration starts making changes that may affect you and your family. Contact an experienced, licensed attorney to find out what YOU can do to help your situation. If you would like our assistance, contact our office today at 210-932-3600 to set up a consultation.