Timing for K1 -- Taxes for AOS

[alborosie8090 17]

Hi there. Not sure if this should go in K1 or here, so mods please feel free to move as necessary.

Here's my question: my fiance and I are getting ready to submit our K1 visa. HOWEVER, me, being the long-sighted person I am, have researched about the next steps for AOS and the Affidavit of Support after he arrives and we marry. I'm not worried at all about my ability to prove CURRENT income above the 125% poverty line for 2015 and onward and when he (hopefully) arrives. The tricky part is going to be the 2014 tax year, which by the time he would hopefully arrive and visa approved, marriage, etc., is going to be after April 2015 when 2014 taxes have been submitted.

For 2014 I was living and working abroad, where I met my fiance. I'll be filing taxes of course, but being abroad the whole year, my 2014 taxes are going to be WAY below the poverty guidelines. 2013 and 2012 are above way above, and again, I know my current income going forward is going to be WELL above, however I know the 1-864 bases income ALSO on the previous tax year and my previous year tax statement from IRS are going to be well below 125% poverty guidelines.

I've searched the board constantly for this issue and have gotten mixed answers as to what is more important - CURRENT income, PREVIOUS tax year, BOTH, etc. I'm trying to determine if its likely I'm going to need a co-sponsor. I really don't want one, I want this to be between my future husband I, I don't like putting other people responsible for something as important and binding as the Affidavit of Support. Its just principle. However, given my 2014 tax year and the timing of everything... do you think its likely that I will need a co-sponsor? I want to be prepared.

I'd love to hear from people who have been approved successfully with previous tax years below 125% yet current income above, or denied.

Thanks, appreciate the support and helpful info from this community.

[LmmL 46]

They will see your current income. If below the requirement then you need to have a co-sponsor.

[landr 126]

Alternatively, you can use the assets (and/or income) of the person you're sponsoring to make up the shortfall.

They are meant to look at current income but I've seen people get RFEs because their income for the previous tax return was below the 125%, despite sending pay stubs and employer letters that show they will be making way above the threshold in the current year.

Sometimes there's no way of predicting who will get an RFE and who won't, even if both couples submit pretty much the same AOS package. That said, as a pre-emptive strike, I suggest that you and your partner start saving as much money as possible so that you can put something significant in the assets box to make up for any shortfall.

[msbau764 245]

Alternatively, you can use the assets (and/or income) of the person you're sponsoring to make up the shortfall.

They are meant to look at current income but I've seen people get RFEs because their income for the previous tax return was below the 125%, despite sending pay stubs and employer letters that show they will be making way above the threshold in the current year.

Sometimes there's no way of predicting who will get an RFE and who won't, even if both couples submit pretty much the same AOS package. That said, as a pre-emptive strike, I suggest that you and your partner start saving as much money as possible so that you can put something significant in the assets box to make up for any shortfall.

that is false. you cannot use the assets and/or income of the person you are sponsoring to make up the shortfall. I am almost positive about this. Maybe, just maybe, it depends on the consulate; however the financial requirements state that only US income is to be considered, making what are you are saying incorrect as well.

Hi there. Not sure if this should go in K1 or here, so mods please feel free to move as necessary.

Here's my question: my fiance and I are getting ready to submit our K1 visa. HOWEVER, me, being the long-sighted person I am, have researched about the next steps for AOS and the Affidavit of Support after he arrives and we marry. I'm not worried at all about my ability to prove CURRENT income above the 125% poverty line for 2015 and onward and when he (hopefully) arrives. The tricky part is going to be the 2014 tax year, which by the time he would hopefully arrive and visa approved, marriage, etc., is going to be after April 2015 when 2014 taxes have been submitted.

For 2014 I was living and working abroad, where I met my fiance. I'll be filing taxes of course, but being abroad the whole year, my 2014 taxes are going to be WAY below the poverty guidelines. 2013 and 2012 are above way above, and again, I know my current income going forward is going to be WELL above, however I know the 1-864 bases income ALSO on the previous tax year and my previous year tax statement from IRS are going to be well below 125% poverty guidelines.

I've searched the board constantly for this issue and have gotten mixed answers as to what is more important - CURRENT income, PREVIOUS tax year, BOTH, etc. I'm trying to determine if its likely I'm going to need a co-sponsor. I really don't want one, I want this to be between my future husband I, I don't like putting other people responsible for something as important and binding as the Affidavit of Support. Its just principle. However, given my 2014 tax year and the timing of everything... do you think its likely that I will need a co-sponsor? I want to be prepared.

I'd love to hear from people who have been approved successfully with previous tax years below 125% yet current income above, or denied.

Thanks, appreciate the support and helpful info from this community.

It is US-based income that counts, not foreign income. You need a sponsor.

[landr 126]

that is false. you cannot use the assets and/or income of the person you are sponsoring to make up the shortfall. I am almost positive about this. Maybe, just maybe, it depends on the consulate; however the financial requirements state that only US income is to be considered, making what are you are saying incorrect as well.

It is US-based income that counts, not foreign income. You need a sponsor.

If you are going for AOS after you receive your K-1, I strongly suggest that you make it a priority to read the instructions for the i-864 to verify the facts before you make "almost positive" statements like the ones you made above:

http://www.uscis.gov/sites/default/files/files/form/i-864instr.pdf[specifically pages 5-7]

The OP has posted in an AOS forum and is asking about AOS, which makes the consulate she is going through for the K-1 irrelevant because consulates do not process AOS applications.

On that note, OP, please can you fill in your profile and timeline so that we know which consulate you are going through, in case you have any questions about the K-1. For reference, some consulates do allow self-sponsorship and the beneficiary's assets (and income) to be considered for the K-1. The UK/London is one of those consulates.

[msbau764 245]

If you are going for AOS after you receive your K-1, I strongly suggest that you make it a priority to read the instructions for the i-864 to verify the facts before you make "almost positive" statements like the ones you made above:

http://www.uscis.gov/sites/default/files/files/form/i-864instr.pdf[specifically pages 5-7]

The OP has posted in an AOS forum and is asking about AOS, which makes the consulate she is going through for the K-1 irrelevant because consulates do not process AOS applications.

On that note, OP, please can you fill in your profile and timeline so that we know which consulate you are going through, in case you have any questions about the K-1. For reference, some consulates do allow self-sponsorship and the beneficiary's assets (and income) to be considered for the K-1. The UK/London is one of those consulates.

Oops. Sorry. I thought the OP was referring to the application before coming to the US, not while he is here. My bad for the confusion

*feeling dumb*

[alborosie8090 17]

Hi guys! Sorry for lack of filling out the profile. I'm new to this whole thing.

My fiance is from Costa Rica. I'm in Colorado. So, maybe that gives more info. Not sure how Costa Rica does it, but from my understanding at AOS stage it is all in U.S. anyway, right?

And yes, I'm not at all worried about income requirements to get him here on the K1. I'm worried about the AOS/I-864, which appears to be much stricter. Doesn't really make sense to go through the K1 and get him here if we are just going to get denied AOS based on last year's income.

Still not really clear though... sounds like it is just the luck of the draw? Seems as though current income is important, but basically unless the taxes you filed the year prior are ALSO 125% above, it really doesn't matter??

Any other insight? It is all still a bit blurry to me. I have about 5k in savings, and a car, but nothing near that assets would qualify, unfortunately.

[landr 126]

Yes, AOS is processed in the US.

If the adjudicating officer reviews your case and decides that you don't have sufficient financial resources to support your fiance, then you will get an RFE (request for evidence) where you will be asked to submit additional information, e.g., regarding assets and/or a joint sponsor. An RFE is not a denial. It's the adjudicating officer requesting more information from you before they can proceed with your case.

Since you've not even submitted the K-1 yet, if I were you, I would focus on that application for now and look at AOS again once your fiance has had his interview for the K-1. By then, you will have a more accurate picture regarding your financial situation and whether you need to seek a joint sponsor.

[Leo7777 243]

Not sure if logic helps . . . but let's think logically here.

First . . . the idea that foreign income doesn't count.

I believe this is with respect to the foreign person who will be coming to USA.

For a US citizen who worked overseas for all or part of a year, there is no logic

why their income earned overseas should not count. True, the amounts earned may be exempt from US taxes, but seems like that could be handled with a footnote to the I-864. Otherwise, we could have the absurd example of a US citizen who was President of his firm's subsidiary in foreign country X and earned 1.3 million dollars for the year. Yet when he brought his foreign lady into USA to marry he would have to get his parents to sign for her upkeep !!!

Second . . . earnings of the foreign person. What about this person's earnings when they are employed in the USA? Once they get EAD, they can work and perhaps earn good money, maybe even more than the US citizen. Is it true that this earnings can not count ? Can't supplemental filing be made after original I-864 showing this person's earnings ?

[alborosie8090 17]

Not sure if logic helps . . . but let's think logically here.

First . . . the idea that foreign income doesn't count.

I believe this is with respect to the foreign person who will be coming to USA.

For a US citizen who worked overseas for all or part of a year, there is no logic

why their income earned overseas should not count. True, the amounts earned may be exempt from US taxes, but seems like that could be handled with a footnote to the I-864. Otherwise, we could have the absurd example of a US citizen who was President of his firm's subsidiary in foreign country X and earned 1.3 million dollars for the year. Yet when he brought his foreign lady into USA to marry he would have to get his parents to sign for her upkeep !!!

Second . . . earnings of the foreign person. What about this person's earnings when they are employed in the USA? Once they get EAD, they can work and perhaps earn good money, maybe even more than the US citizen. Is it true that this earnings can not count ? Can't supplemental filing be made after original I-864 showing this person's earnings ?

Logic absolute helps. However as I mentioned, my foreign wages will be below the 125% poverty requirement. Sure wish I was bringing in 1.3mil, then I really wouldn't have this concern, would I?

I wasn't aware the beneficiary's income counts, it is good to know, but again that doesn't really address my question. I am trying to get a sense of what really matters for I-864, or at least what matters more -- current, proven sustainable income OR previous year's tax filings? Again, there's really a mix of what I have found searching these forums, and was hoping to hear from people who have gotten RFE's or approvals in this kind of a situation.

Yes, step 1 is getting the k1 visa, but I am trying to look at the process as a whole so as to not waste time of my previous year tax returns are going to make it impossible for me to sponsor. Thanks for all the feedback!

[landr 126]

I wasn't aware the beneficiary's income counts, it is good to know, but again that doesn't really address my question. I am trying to get a sense of what really matters for I-864, or at least what matters more -- current, proven sustainable income OR previous year's tax filings? Again, there's really a mix of what I have found searching these forums, and was hoping to hear from people who have gotten RFE's or approvals in this kind of a situation.

Yes, step 1 is getting the k1 visa, but I am trying to look at the process as a whole so as to not waste time of my previous year tax returns are going to make it impossible for me to sponsor. Thanks for all the feedback!

This is a page from the redacted public version of the Adjudicator's Field Manual:

http://www.uscis.gov/sites/default/files/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-2872/0-0-0-3055.html#0-0-0-381

Scroll down to the section titled "Sufficiency of Form I-864." They look at both current income as well as last year's tax return. If both are over the 125% threshold then they are meant to deem the submitted I-864 sufficient. Where the previous tax return is under the 125% threshold (even if the current income is over), they may determine that your current income is not sustainable. This is what can lead to the RFE.

That said, further down, under "Other Evidence of Income," it states:

For purposes of demonstrating means to maintain income, the total income, before deductions, in the sponsor’s tax return for the most recent taxable year will be generally determinative. There is no requirement to determine whether the sponsor would have met 125% (or 100%) of the governing Poverty Guideline before the most recent tax year. Income tax information from these years should only be used to take the earning trend into consideration when assessing current and future earning capability.

USCIS, however, may consider other evidence of income (e.g., pay stub(s), employer letter(s), or both), if (1) the sponsor establishes that he/she was not legally obligated to file a Federal income tax return for the most recent tax year, or (2) USCIS determines that the income listed on the Federal tax return for the sponsor’s most recent tax year does not meet the governing threshold.

In other words, if the sponsor’s current income is sufficient, it can establish that the Form I-864 itself is sufficient even if the tax return without any other documentation might warrant a finding that it is not sufficient. For example, if the sponsor recently started a new job (that USCIS is satisfied will likely continue) and the income from the job now meets or exceeds the legal requirement, USCIS may find the Affidavit of Support to be sufficient, notwithstanding information included in the transcrip t or copy of the tax return(s).

By contrast, 8 CFR 213a.2©(2)(ii)© permits USCIS to conclude that a Form I-864 is not sufficient, even if the sponsor’s household income meets the Poverty Guideline threshold. USCIS should make this conclusion only if the evidence of record makes it “reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligation.” For example, if the sponsor’s income is from a job that is merely temporary or seasonal, USCIS might reasonably conclude that the income is likely not to continue, and could also conclude that the Affidavit of Support, for that reason, is not sufficient.

If the household income meets the Poverty Guidelines threshold, however, USCIS will generally conclude that the Form I-864 is sufficient. There must be some specific reason, supported by evidence in the record, to conclude that the Form I-864 is not sufficient.

They make a judgement call based on all the evidence submitted. If they don't have enough information to make a decision or the sponsor doesn't meet the 125% threshold as determined by their last tax return or they don't think the sponsor's current income (that's above the threshold) is sustainable, then the applicant is likely to get an RFE. Once the RFE has been submitted (there's usually a deadline), it's reviewed and if determined to be sufficient, the case progresses to the next stage.

As an aside, the forum for people adjusting from K-1 visas is here:

http://www.visajourney.com/forums/forum/7-adjustment-of-status-green-card-from-family-based-visas/

Edited November 6, 2014 by landr

[alborosie8090 17]

LANDR! Thank you! That is some extremely helpful information. Thanks again.

I feel fairly confident (although how confident CAN you feel with things like this?) that if I submit all three of my previous year tax filings, the last 2 which will be way above and the previous year which is likely going to be quite below - explain that was the year working and volunteering abroad which is obviously how I met my fiance - and then prove very stable income with a new current permanent position with letter from employer I should at least be, on paper, in good shape to prove sufficient support. I guess I will just have to roll the dice and for now just focus on the K1. Again, I just wanted to be prepared for the long-haul of this very big process.

Thanks for all the helpful information with the link. Bookmarked and will go through. Much, much appreciated.

This is a page from the redacted public version of the Adjudicator's Field Manual:

http://www.uscis.gov/sites/default/files/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-2872/0-0-0-3055.html#0-0-0-381

Scroll down to the section titled "Sufficiency of Form I-864." They look at both current income as well as last year's tax return. If both are over the 125% threshold then they are meant to deem the submitted I-864 sufficient. Where the previous tax return is under the 125% threshold (even if the current income is over), they may determine that your current income is not sustainable. This is what can lead to the RFE.

That said, further down, under "Other Evidence of Income," it states:

They make a judgement call based on all the evidence submitted. If they don't have enough information to make a decision or the sponsor doesn't meet the 125% threshold as determined by their last tax return or they don't think the sponsor's current income (that's above the threshold) is sustainable, then the applicant is likely to get an RFE. Once the RFE has been submitted (there's usually a deadline), it's reviewed and if determined to be sufficient, the case progresses to the next stage.

As an aside, the forum for people adjusting from K-1 visas is here:

http://www.visajourney.com/forums/forum/7-adjustment-of-status-green-card-from-family-based-visas/