An application for child's insurance benefits for Emery G~ G~ has been filed on the
account of Jose G~. Emery, who was born on June 16, 1977 to an unmarried woman, was
given by her mother to Mr. G~ and his wife shortly after birth. Evidence in the claims
file indicates that Emery is identified as Mr. G~ daughter in the official civil registry
records of Jalisco, Mexico.
Mr. G~, a Mexican citizen, earns his living in the United States. Since 1950 he has
resided in California for six to nine months each year. His wife, Emery, and another
daughter live year-round in Jalisco. Recently, Mrs. G~ has visited in California for
several months at a time on a number of occasions. Neither daughter has ever been
to California. Mr. G~ does not own property in California. 'During the work year he
lives with his son.
You have requested our assistance in determining whether or not Emery qualifies as
Mr. G~ "child" for purposes of entitlement to social security benefits on the wage
earner's account. The threshold problem in this case is the location of Mr. G~ domicile.
If Mr. G~ is a domiciliary of Jaslisco, the laws of that Mexican state are determinative
of Emery's status. GC opinion re J. Rosario DeLa Rosa, August 1, 1984. On the other hand, a California domicile would necessitate application
of California law. 20 C.F.R. §404.354(b). The choice of law is Critical here. Emery
would qualify as Mr. G~ child pursuant to Jalisco law, in consequence of the civil
birth registration, GC opinion re J. Rosario DeLa Rosa, cited above. On the other hand, it is not clear how the California courts would
view the relationship. It is possible that entitlement could not be sustained on the
basis of California precedents.
Recognizing the significance of domicile in this and' other cases where it is necessary
to reference state law, you have asked us to outline a framework for evaluating domicile.
 Initially, you should be aware that domicile in this context is a matter of federal
rather than state law. GC opinion re Eli S. Wall, June 25, 1984. Therefore., your question about the treatment of domicile by the
California courts is not germane. The pertinent federal. regulation equates the statutory
term, "domicile," see section 216(h)(2)(A) of the Social Security Act, with the wage earner's "permanent
home." 20 C.F.R. §404.354(b). "Permanent home," in turn is defined as "the place to
which a person intends to return whenever he or she is absent." 20 C.F.R. §404.303.
It follows that case development should be directed toward ascertaining the wage earner's
intent in this regard. 
Although it will always be useful to obtain a declaration of intent from the wage
earner whenever domicile is at issue, such a statement is, by itself, insufficient
to establish domicile. "It does not rest with a man to determine the place of his
domicile by expressing an intent which is contrary to the facts in an attempt to avoid
the inevitable legal consequences of such facts. The acts of a person must correspond
with the purpose to change his domicile." 25 Am. Jur. 2d, "Domicile," §24 (emphasis
added). Consequently, evidence of conduct should be accorded greater weight than an
unsubstantiated declaration of intent. Id. at §93. Declarations are particularly suspect where the declarant may perceive some
advantage in identifying himself as a domiciliary of a particular jurisdiction. Id. at §92. For these reasons it is essential to evaluate a statement of intent in relation
to the surrounding circumstances. See Id. at §§91, 92.
As a rule, the two most important circumstances to be considered in a given case are
the domicile of origin  and present family residence. There is a presumption that an individual retains his/her
original domicile, and where there is a conflict in the evidence, the original domicile
is favored. Id. at §§85, 87. Furthermore, as relevant here, "It]here is a strong presumption
that a person in a foreign country intends to retain his national domicile." Id. at §86. It is also presumed that the domicile of the head of a household is the
place where his/her family resides. See Id. at §85.
Neither original domicile not family residence is conclusive. Conduct which may also
bear on the determination of domicile includes (1) exercise of civil rights (e.g.,
voting); (2) payment of local taxes; (3) acquisition of a driver's license or business
permit; (4) property ownership or other financial commitment to the locality. See Id. at §§94-98. The place of employment is also significant, but due consideration must
be given to factors which might compel an individual to work away from his actual
domicile. See Id. at §39 fl. "[E]mployment at a particular place [does not] bring about a change of
domicile where the intention to remain at that place is contingent upon the permanency
of the employment." Id. at §97.
The evidence in this case does not demonstrate a change in domicile from Jalisco to
California. As noted above, it is strongly presumed that the domicile of a foreign
national continues to be his country of origin and that the domicile of a married
man is located where his family resides. Both presumptions arise here. Despite his
long-term contact with the United States, Mr. G~ has retained his Mexican citizenship.
Mexico, therefore, is his presumptive domicile. He is further presumed to be a Jalisco
domiciliary because his wife and daughters maintain the family home, to which he returns
each year, in that Mexican state. Evidence suggesting that Mr. G~ has not sought U.S.
citizenship or year-round employment in this country also tends to show that it has
never been his purpose to leave Jalisco and set up a permanent residence in California.
The only notable circumstance indicative of a California domicile is Mr. G~ intermittent
residence in that state for approximately nine months a year over a span of thirty-five
years. In the absence of evidence of intent, duration of residence can often be important
in locating domicile. Id. §23.  But domicile cannot be determined arithmetically. Mr. G~ presence in California is
most readily explained as a response to the economic realities of farm labor, rather
than as a decision to make California his permanent home. More telling than his yearly
migration to California is the fact that at the conclusion of each work season, he
has returned without fail to Jalisco. This pattern demonstrates convincingly that
Jalisco is the place to which Mr. G~ "intends to return whenever he is absent." 20
C.F.R. §404.303. Jalisco, therefore, must be considered to be his domicile, or "permanent
home," within the meaning of the Act.
As we have indicated, under Jalisco's law, Emery is entitled to rights of inheritance
as the child of Mr. GC opinion re J. Rosario DeLa Rosa, cited above.  Because our conclusion regarding domicile dictates application of Jalisco law, we
do not reach the questions raised in your memorandum as to the recognition California
would accord the Mexican civil birth registration and the effect, if any, of California
Probate Code Section 6408(a) (1).
The claims file is returned herewith.