Household size question

[CaMic 0]

I've tried searching the forums for an answer to this before but haven't found anything specific and since I've just returned from USA without being able to meet with the only person who could potentially have been a co-sponsor for us, it's more critical than ever.

My fiance hasn't worked regularly because he was looking after his 3 sick children (2 are physically disabled and one had leukaemia, two of them are permenantly home-schooled as a result) and he will use this info to show why he hasn't filed tax returns the last 3-4 years. Ever since his ex found out we are getting married, she has refused him access to his kids (and turned them against both he and I) and he pays no child support - she has not and does not intend to file for child support as it would mean he would be given access to his kids legally and I would therefore get to see them too. SO, he needs to mentions his kids in order to clear up the tax situation and get the waiver letter, but we don't want them to count as part of his household size as it will mean he is well below the 125% poverty line for a household of 5. My question is IF HE DOES NOT PAY CHILD SUPPORT AT THE TIME OF FILING I-134/I-864, DO WE HAVE TO INCLUDE THE KIDS IN THE HOUSEHOLD SIZE?

[Penguin_ie 6,000]

So he has been claiming the kids on his tax return? If so, I believe they count. If he has not been claiming them and they do not live with him/ he doesn't have custody, I don't believe they count.

[az110965 252]

I've tried searching the forums for an answer to this before but haven't found anything specific and since I've just returned from USA without being able to meet with the only person who could potentially have been a co-sponsor for us, it's more critical than ever.

My fiance hasn't worked regularly because he was looking after his 3 sick children (2 are physically disabled and one had leukaemia, two of them are permenantly home-schooled as a result) and he will use this info to show why he hasn't filed tax returns the last 3-4 years. Ever since his ex found out we are getting married, she has refused him access to his kids (and turned them against both he and I) and he pays no child support - she has not and does not intend to file for child support as it would mean he would be given access to his kids legally and I would therefore get to see them too. SO, he needs to mentions his kids in order to clear up the tax situation and get the waiver letter, but we don't want them to count as part of his household size as it will mean he is well below the 125% poverty line for a household of 5. My question is IF HE DOES NOT PAY CHILD SUPPORT AT THE TIME OF FILING I-134/I-864, DO WE HAVE TO INCLUDE THE KIDS IN THE HOUSEHOLD SIZE?

Good morning,

Just an FYI... Child support has no bearing on visitation of the children by the non-custodial parent. If your fiancee was granted visitation by the judge (as would be indicated on his divorce decree) the custodial parent can not legally with-hold visitation.

Also - Even though the ex-wife may not have filed for child support does not mean that there is not a support order in place. If the children are receiving any sort of public assistance (in the way of health care, AFDC, etc), the local county child support enforcement agency will pursue support on their own. I would have your fiancee check to make sure that there is not a support order in effect, he may not know that there is one. If there is in fact an order of support in place and your fiancee is in default, that could open up many other potential problems for your petition.

Have your fiancee call his local child support enforcement agency and ask if there is a support order in place. If there is, he will have to list the children on the affadavit of support as he is legally (at least partially) responsible for their support.

Al

[az110965 252]

Good morning,

Just an FYI... Child support has no bearing on visitation of the children by the non-custodial parent. If your fiancee was granted visitation by the judge (as would be indicated on his divorce decree) the custodial parent can not legally with-hold visitation.

Also - Even though the ex-wife may not have filed for child support does not mean that there is not a support order in place. If the children are receiving any sort of public assistance (in the way of health care, AFDC, etc), the local county child support enforcement agency will pursue support on their own. I would have your fiancee check to make sure that there is not a support order in effect, he may not know that there is one. If there is in fact an order of support in place and your fiancee is in default, that could open up many other potential problems for your petition.

Have your fiancee call his local child support enforcement agency and ask if there is a support order in place. If there is, he will have to list the children on the affadavit of support as he is legally (at least partially) responsible for their support.

Al

Also - Just because your fiancee hasn't earned income does not preclude him from filing an annual tax return. Matter of fact - even if he hadn't paid anything in taxes, he could have been eligible for an Earned Income Credit. Income or not - he has to file a tax return every year. Failure to do so can lead to an IRS lein and other legal actions.

Are you sure that you've been given all the facts by your fiancee?

[CaMic 0]

Also - Just because your fiancee hasn't earned income does not preclude him from filing an annual tax return. Matter of fact - even if he hadn't paid anything in taxes, he could have been eligible for an Earned Income Credit. Income or not - he has to file a tax return every year. Failure to do so can lead to an IRS lein and other legal actions.

Are you sure that you've been given all the facts by your fiancee?

I'm not very sure of anything right now.

The kids get Medicaid(???) - I get confused with medicaid/medicare/etc. I don't think there is any outstanding support due to the county as he just had a 'warrant' check and all there was was an unpaid traffic ticket but I will tell him to check with the child support agency to be sure. He has no legal visitation/custody in place as his children have now indicated they do not want to see him and he will not force them to do so against their will. Although he was married in the past, it was not to the mother of his children so there is no relevant divorce decree pertaining to them. They obviously don't live with him now and he has never claimed them on his tax returns as his ex claims them on hers. He hasn't claimed any type of benefits himself while he has not been working regularly.

[Gary and Alla 3,696]

I've tried searching the forums for an answer to this before but haven't found anything specific and since I've just returned from USA without being able to meet with the only person who could potentially have been a co-sponsor for us, it's more critical than ever.

My fiance hasn't worked regularly because he was looking after his 3 sick children (2 are physically disabled and one had leukaemia, two of them are permenantly home-schooled as a result) and he will use this info to show why he hasn't filed tax returns the last 3-4 years. Ever since his ex found out we are getting married, she has refused him access to his kids (and turned them against both he and I) and he pays no child support - she has not and does not intend to file for child support as it would mean he would be given access to his kids legally and I would therefore get to see them too. SO, he needs to mentions his kids in order to clear up the tax situation and get the waiver letter, but we don't want them to count as part of his household size as it will mean he is well below the 125% poverty line for a household of 5. My question is IF HE DOES NOT PAY CHILD SUPPORT AT THE TIME OF FILING I-134/I-864, DO WE HAVE TO INCLUDE THE KIDS IN THE HOUSEHOLD SIZE?

Underage dependent children COUNT regardless of where they live and who pays child support and regardless of who claims them on income tax. USCIS is NOT the IRS and he is not relieved of responsibility of HIS children just because someone else claims them on taxes. It does not matter if you "want" them to count, they count.

He has no excuse for not filing tax returns that I see. Filing a return is not the same as owing tax. He will have to be current on ALL income tax filings for the last three years. 2009, 2008, 2007. Living overseas is not a valid reason either. If no tax is owed, he will pay no penalty for filing late.

Whether he pays child support or NOT has nothing to do with his access to his children. If the ex is not allowing him access to his children he should see an attorney. Even drug addicted, child molestors are allowed supervised visits to their own children, this is ridiculous. His ex-wife cannot stop YOU from seeing his children either, whether he pays child support or not. Once married you will be, legally, their step mother and not only have the SAME privileges as he to see them, you have the legal right to make any decisions needed on behalf of the children. Their mother does not have to like it. He needs to tell his ex to go take a long walk on a short pier.

Your fiance needs to learn about his rights and responsibilities before proceeding with this or you WILL have problems. Seriously, vey seriously...this guy you are marrying has no clue of what he is entitled to do and what he is obligated to do (there are very few reasons not to file a tax return and just writing a letter does not excuse you, you need to cite the specific tax code that allows you not to file...there is none for anything you mention)

This guy needs to know just what his rights and responsibilities are or your life together is doomed by this vindictive EX-wife that will push you both around all your lives. Someone needs to jerk a legal knot in her post haste so you can get on with your lives.

[az110965 252]

I'm not very sure of anything right now.

The kids get Medicaid(???) - I get confused with medicaid/medicare/etc. I don't think there is any outstanding support due to the county as he just had a 'warrant' check and all there was was an unpaid traffic ticket but I will tell him to check with the child support agency to be sure. He has no legal visitation/custody in place as his children have now indicated they do not want to see him and he will not force them to do so against their will. Although he was married in the past, it was not to the mother of his children so there is no relevant divorce decree pertaining to them. They obviously don't live with him now and he has never claimed them on his tax returns as his ex claims them on hers. He hasn't claimed any type of benefits himself while he has not been working regularly.

If the children are receiving Medicaid (Medicare is heath care for senior citizens), you can make a safe bet that CSEA (child support enforcement agency) has a support order in place - they do this automatically when children are receiving public assistance. A warrant check will not reveal a defaulted support order unless enough time has lapsed and the judge issues a habias for your fiancee.

To answer your earlier question - if there is no support order in place, then you would not need to list the kids on the I-134 because your fiancee does not fully or partiallty support them and they would not be considered part of the household.

The lack of filed tax returns may however be an issue at the interview stage where the Consulate will request prior tax returns or tax transcripts. I would have your fiancee file his back taxes for the years in question. If it turns out he owes the IRS, payment arrangements can be made.

Good luck.

Alan

[Gary and Alla 3,696]

I'm not very sure of anything right now.

The kids get Medicaid(???) - I get confused with medicaid/medicare/etc. I don't think there is any outstanding support due to the county as he just had a 'warrant' check and all there was was an unpaid traffic ticket but I will tell him to check with the child support agency to be sure. He has no legal visitation/custody in place as his children have now indicated they do not want to see him and he will not force them to do so against their will. Although he was married in the past, it was not to the mother of his children so there is no relevant divorce decree pertaining to them. They obviously don't live with him now and he has never claimed them on his tax returns as his ex claims them on hers. He hasn't claimed any type of benefits himself while he has not been working regularly.

1. HIS children are HIS children, regardless if he was ever married to the mother. They COUNT in family size until they are at least age 18 and emancipated. You CANNOT make babies and not be responsible for them, it is not up to the mother or anyone else. USCIS specifically requires all children be claimed reagrdless of living arrnagelnets and/or child support.

2. He can GET a legal visitation order regardless if he was married or divorced or ever paid child support and whether the children like it or not. IF he was an axe murderer who killed children and was on death row, he could get a visitation order for his children and the state would deliver his children to him in prison for visitation. There is NO WAY the mother can deny him visitation if he wants it. IF he chooses not to that is his decision, not hers, and not the children's. They count in his family size whether he ever sees or talks to them again in their lives.

3. If he does not meet the guidelines for a family of 5, he needs a new job or you need a co-sponsor.

Seriously, either this guy has no clue or something is not being told to you. I suggest you find out which. You are entering into a relationship with someone that is being shoved around by someone who is not even an ex-wife, he also has an ex-wife (is she pushing him around also?) and you will be jerked around with him all your life. And there is nothing to prevent her from demanding child support once he marries you (sounds like the type that would do it just to take money from you, especially when she finds out she cannot keep the children from him) She is feeding this guy a bunch of BS and he is eating it up. Get it strait or get out...seriously. I do not make judgemnts about people, I really don't care, but this is something you are voluntarily joining into that sounds like a LOT of trouble.

[az110965 252]

Underage dependent children COUNT regardless of where they live and who pays child support and regardless of who claims them on income tax. USCIS is NOT the IRS and he is not relieved of responsibility of HIS children just because someone else claims them on taxes. It does not matter if you "want" them to count, they count.

He has no excuse for not filing tax returns that I see. Filing a return is not the same as owing tax. He will have to be current on ALL income tax filings for the last three years. 2009, 2008, 2007. Living overseas is not a valid reason either. If no tax is owed, he will pay no penalty for filing late.

Whether he pays child support or NOT has nothing to do with his access to his children. If the ex is not allowing him access to his children he should see an attorney. Even drug addicted, child molestors are allowed supervised visits to their own children, this is ridiculous. His ex-wife cannot stop YOU from seeing his children either, whether he pays child support or not. Once married you will be, legally, their step mother and not only have the SAME privileges as he to see them, you have the legal right to make any decisions needed on behalf of the children. Their mother does not have to like it. He needs to tell his ex to go take a long walk on a short pier.

Your fiance needs to learn about his rights and responsibilities before proceeding with this or you WILL have problems. Seriously, vey seriously...this guy you are marrying has no clue of what he is entitled to do and what he is obligated to do (there are very few reasons not to file a tax return and just writing a letter does not excuse you, you need to cite the specific tax code that allows you not to file...there is none for anything you mention)

This guy needs to know just what his rights and responsibilities are or your life together is doomed by this vindictive EX-wife that will push you both around all your lives. Someone needs to jerk a legal knot in her post haste so you can get on with your lives.

Gary and Alla -

You are EXACTLY correct!!!!!!!!!!

[Gary and Alla 3,696]

If the children are receiving Medicaid (Medicare is heath care for senior citizens), you can make a safe bet that CSEA (child support enforcement agency) has a support order in place - they do this automatically when children are receiving public assistance. A warrant check will not reveal a defaulted support order unless enough time has lapsed and the judge issues a habias for your fiancee.

To answer your earlier question - if there is no support order in place, then you would not need to list the kids on the I-134 because your fiancee does not fully or partiallty support them and they would not be considered part of the household.

The lack of filed tax returns may however be an issue at the interview stage where the Consulate will request prior tax returns or tax transcripts. I would have your fiancee file his back taxes for the years in question. If it turns out he owes the IRS, payment arrangements can be made.

Good luck.

Alan

Not ture. Check and read carefully the guides regarding children. They count.

Whether they count has nothing to do of whether he really supports them. the affidavot of support is NOT about support. Never make the mistake that the government cares if you support your family, they do not. Your family can die of exposure sleeping in a box tonight and they do not care. what they DO care about is that they can garnish your wages to collect back any public aid his fiancee should collect in the futrue and they want to know exactly how much they can confiscate from his paycheck to cover their own @ss. The amount that can be garnished is directly determined by the size of the family. They do not want children popping out of the woodwork in a few years when they go to collect on him that didn't exist when he filed the affidavit of support.

Not claiming them would be concealing material information and fraud. This would subject the benficiaries visa and green card to revocation. Really gereat idea when you have a vindictive woman in the picture. If you play this ANY way but right down the line legally, you are opening your entire future to this vindictive woman...good call, eh? Gte a co-sponsor. DO NOT give this woman any excuse to ruin your lives. when she finds this out, and she will, you will be in for a world of hurt...or at least blackmail, for who knows how many years.

The OP needs to be sure this guy has all his ducks in a romw legally to protect herself. She needs to be protected from his past and it seems he doesn't know how to do that

Edited January 16, 2010 by Gary and Alla

[CaMic 0]

1. HIS children are HIS children, regardless if he was ever married to the mother. They COUNT in family size until they are at least age 18 and emancipated. You CANNOT make babies and not be responsible for them, it is not up to the mother or anyone else. USCIS specifically requires all children be claimed reagrdless of living arrnagelnets and/or child support.

This is what I needed to know regarding the USCIS. He doesn't want to shirk his responsibilities and when he does earn money, most of it goes to his kids, I understand that and know that that's how he will always be.

2. He can GET a legal visitation order regardless if he was married or divorced or ever paid child support and whether the children like it or not. IF he was an axe murderer who killed children and was on death row, he could get a visitation order for his children and the state would deliver his children to him in prison for visitation. There is NO WAY the mother can deny him visitation if he wants it. IF he chooses not to that is his decision, not hers, and not the children's. They count in his family size whether he ever sees or talks to them again in their lives.

It is good to know that he CAN see his kids legally, he just doesn't want to do it against their wishes. He is however still trying to reconcile with them and if they ever say they want to see him then he'll be there in a second.

3. If he does not meet the guidelines for a family of 5, he needs a new job or you need a co-sponsor.

Seriously, either this guy has no clue or something is not being told to you. I suggest you find out which. You are entering into a relationship with someone that is being shoved around by someone who is not even an ex-wife, he also has an ex-wife (is she pushing him around also?) and you will be jerked around with him all your life. And there is nothing to prevent her from demanding child support once he marries you (sounds like the type that would do it just to take money from you, especially when she finds out she cannot keep the children from him) She is feeding this guy a bunch of BS and he is eating it up. Get it strait or get out...seriously. I do not make judgemnts about people, I really don't care, but this is something you are voluntarily joining into that sounds like a LOT of trouble.

It IS a lot of trouble. His ex-wife hasn't been in touch since the divorce and is no problem but the mother of his kids will do anything to make his life miserable and yes, I fully expect she will try to get access to my money if and when my fiance and I get married. He's not the most responsible when it comes to money/taxes etc - he knows it and I know it. Honestly, with his kids not wanting to see him we may be just as well trying to bring him to the UK instead of me going there but at the moment he's looking after his elderly stepfather and neither of us want to leave him alone. I can have 3 x 125% poverty line for a household of 5 once I sell my house in the UK, but not in time for the I-134. I was over visiting at christmas in the hope of meeting my fiance's oldest brother and explaining the situation to him in the hope that he'd agree to be a co-sponsor for the I-134 part only but for one reason or another he didn't make it into the State to meet up.

[Gary and Alla 3,696]

It IS a lot of trouble. His ex-wife hasn't been in touch since the divorce and is no problem but the mother of his kids will do anything to make his life miserable and yes, I fully expect she will try to get access to my money if and when my fiance and I get married. He's not the most responsible when it comes to money/taxes etc - he knows it and I know it. Honestly, with his kids not wanting to see him we may be just as well trying to bring him to the UK instead of me going there but at the moment he's looking after his elderly stepfather and neither of us want to leave him alone. I can have 3 x 125% poverty line for a household of 5 once I sell my house in the UK, but not in time for the I-134. I was over visiting at christmas in the hope of meeting my fiance's oldest brother and explaining the situation to him in the hope that he'd agree to be a co-sponsor for the I-134 part only but for one reason or another he didn't make it into the State to meet up.

Hey, you guys are grown ups. As long as you understand the deal, you pays your nickle and takes your chances. You BOTH need to be protected from the mother of these children and be careful about selling property and putting it into an acount that he has access to (which you would have to in order for it to count toward the I-134) She could swoop in with a back child support order and take it all. Outside chance to be sure, but it is something you will always have to protect against. She will not go away, sounds like, so you will have to be prepared and protected. The best thing you can do with this woman is to read her the riot act, legally speaking of course, and be sure your interests are always protected and anytime she tries this nonsense you need to stiff-arm her immediately with a legal order until she undertands she cannot use the children as weapons against you or the father. Unless he does something to harm HIS children or is shown to have dangerous behavior in a court of law, she can have nothing to say about visitation and what he does with us children or who they visit. You, as the step-mother, would have the same legal rights the mother does for emergencies, school issues, etc.

Good luck.

[Bobby+Umit 161]

Concur with Gary and az110965 -

There is one exception to not claiming them - (also confirms the count of children, even if not claimed as dependents)

How do you count children of a divorced couple who reside with one parent part time?

A divorced parent's dependent children are members of his or her household, even if they live part of the time with the former spouse. A parent almost always has a legal obligation to support his or her children. Although only one of the parents may be legally entitled to claim the child as a dependent on tax returns (1040), the child must be considered as part of both parents' households for purposes of the Affidavit of Support, unless a parent can show that he or she no longer has a legal obligation to support the child.

Source

[CaMic 0]

Thanks to everyone for the responses, guess we just need to try harder to get everything in order and expect there to be a lot of delays in our processing until we get it all sorted.

[JimVaPhuong 4,864]

Underage dependent children COUNT regardless of where they live and who pays child support and regardless of who claims them on income tax. USCIS is NOT the IRS and he is not relieved of responsibility of HIS children just because someone else claims them on taxes. It does not matter if you "want" them to count, they count.

He has no excuse for not filing tax returns that I see. Filing a return is not the same as owing tax. He will have to be current on ALL income tax filings for the last three years. 2009, 2008, 2007. Living overseas is not a valid reason either. If no tax is owed, he will pay no penalty for filing late.

Whether he pays child support or NOT has nothing to do with his access to his children. If the ex is not allowing him access to his children he should see an attorney. Even drug addicted, child molestors are allowed supervised visits to their own children, this is ridiculous. His ex-wife cannot stop YOU from seeing his children either, whether he pays child support or not. Once married you will be, legally, their step mother and not only have the SAME privileges as he to see them, you have the legal right to make any decisions needed on behalf of the children. Their mother does not have to like it. He needs to tell his ex to go take a long walk on a short pier.

Your fiance needs to learn about his rights and responsibilities before proceeding with this or you WILL have problems. Seriously, vey seriously...this guy you are marrying has no clue of what he is entitled to do and what he is obligated to do (there are very few reasons not to file a tax return and just writing a letter does not excuse you, you need to cite the specific tax code that allows you not to file...there is none for anything you mention)

This guy needs to know just what his rights and responsibilities are or your life together is doomed by this vindictive EX-wife that will push you both around all your lives. Someone needs to jerk a legal knot in her post haste so you can get on with your lives.

Agree with all except the bolded paragraph. If his earnings were under the threshold (it's $9350 for a single person in 2009), and there is no circumstance that would otherwise require him to file a return (certain special taxes owed, etc.), then he would not be required to file a return. However, if he earned any money at all, then he'd probably be eligible for the EIC, and he'd be giving up free cash by not filing.

Ok, it's devil's advocate time...

Something smells fishy about this guy. He's loaded with excuses for things, but many of them don't quite jive with reality. Either he is oblivious to the actual law, or he's not being completely honest.

He said his sick kids and relatives were the reason he didn't earn much, yet he now says that the children's mother won't allow him access to the kids. Did this latter scenario develop as the OP was planning a trip to the US, or after she arrived in the US? So, he had sick kids which prevented him from earning any money, and perhaps prevented him from leaving the country, but now that the OP is coming to the US he is not able to produce the sick kids. Anyone see where I'm going with this?

If the mother of his kids is collecting public assistance of any sort for the children, then she is COMPELLED to cooperate in support enforcement action against the father of her children, whether she wants to or not. I'm not aware of any state where this isn't true. If there is no support order in place, then the state's Child Protective Services (or whatever their state calls it) will seek an order on their own. I'm betting there probably IS a support in place, but he's not been paying it. If he did his "warrant check" at the DMV then a warrant for non-payment of child support might not show up - they often only check for traffic warrants (she did mention he had a parking ticket).

If the mother of the children is able to take care of the kids while simultaneously blocking their father from having access to them, why was he ever needed to care for the kids, and why is this a reason for his not being able to work? If there are two parents available to care for the children, then it seems like the most important thing one of them should be doing is earning some money to pay for their care.

I noticed that the OP mentioned she recently returned from the US. Has her fiance ever visited her in her home country? If not, did he use his ample collection of sick children and relatives as a reason for not leaving the US? I ask this because a parent who is in arrears on support payments cannot get a passport in most states - the state's Attorney General will block it.

Somehow, the pieces just don't seem to fit right. The OP should probably invest in a background check on her future husband.