Intending immigant using personal income for Affidavit of support

[lostinnc 0]

This might be my 2nd post in this forum I have searched all over for an answer to my question and there seems to be none, I hope someone can help me answer this.

My wife is a USC and she is filing a petition for me. I have been in the US for approximately 9 years, workied legally for 2 years then my work permit expired and I have since been working illegally for the past 4-5 years. I have filed my taxes for each year that I have worked.

We recently decided to file for my Immigration status. This year will be the first year we file taxes together and my question is as follows;

1. Can I use my income for us to meet the poverty guidelines? Her gross for 2009 is 15900 i'm at 22k, she clearly falls short by a few thousand dollars.

2. If I can use my income, how do I prove that my employment will continue afterwards as stated in the guidelines of the I864?

3. Will the fact that I was working unlawfully be a problem for me to use my income?

We wanted to send this out after we fill our taxes and I just wanted to be clear on that.

Any help would be immensely appreciated!

Thanks

[Anh map 2,098]

You may want to consult an experienced immigration attorney regarding the working illegally issue.

An employer letter would confirm the ongoing income claim. However it may open up a can of worms for the employer as they have not done their work to make sure that you are legally employable.

-topic moved from IR1/CR1 forum to Adjustment of Status forum-

[Kathryn41 3,205]

A consult with a lawyer is a good idea when you have circumstances out of the ordinary. For what it is worth, illegal work and out of status presence are 'forgiven' once the green card is approved when you are applying as the spouse of a US citizen.

You may get your wrists slapped for working illegally but if you can show that your income will continue from the same source after the green card you may well be able to use it to self-support. It is a good thing that you have filed income tax returns because failing to do that could have really come back to haunt you. Your real problem will be if they deny the AOS so make sure you provide lots of good evidence.

Edited January 24, 2010 by Kathryn41

[Bobby+Umit 161]

Concur with Anh Map-

3. In consideration of other adverse factors, working illegally is not normally a bar for AOS.

[lostinnc 0]

Concur with Anh Map-

3. In consideration of other adverse factors, working illegally is not normally a bar for AOS.

The following is the legalese from the USCIS website on this matter. I am no lawyer but it seems to say that the intending immigrants income can be counted as part of the household income in order to meet the poverty guidelines. Am I reading this correctly? Or am I being overly optimistic

Thanks for the swift responses....and the great insight.

" The final rule, therefore, clarifies that the sponsor may rely on the intending immigrant's income if the intending immigrant is either the sponsor's spouse or has the same principal residence as the sponsor and can show by a preponderance of the evidence that the intending immigrant's income will continue, after acquisition of permanent residence, from the same source (such as lawful employment with the same employer or some other lawful source). The prospect or offer of employment in the United States tha t has not yet actually begun will not be sufficient to meet this requirement."

Edited January 24, 2010 by lostinnc

[lostinnc 0]

A consult with a lawyer is a good idea when you have circumstances out of the ordinary. For what it is worth, illegal work and out of status presence are 'forgiven' once the green card is approved when you are applying as the spouse of a US citizen.

You may get your wrists slapped for working illegally but if you can show that your income will continue from the same source after the green card you may well be able to use it to self-support. It is a good thing that you have filed income tax returns because failing to do that could have really come back to haunt you. Your real problem will be if they deny the AOS so make sure you provide lots of good evidence.

This sounds about right from what I understand on the instructions on the I864 and the USCIS website.

What would constitute evidence of "continued employment"

[Brother Hesekiel 2,236]

This might be my 2nd post in this forum I have searched all over for an answer to my question and there seems to be none, I hope someone can help me answer this.

My wife is a USC and she is filing a petition for me. I have been in the US for approximately 9 years, workied legally for 2 years then my work permit expired and I have since been working illegally for the past 4-5 years. I have filed my taxes for each year that I have worked.

We recently decided to file for my Immigration status. This year will be the first year we file taxes together and my question is as follows;

1. Can I use my income for us to meet the poverty guidelines? Her gross for 2009 is 15900 i'm at 22k, she clearly falls short by a few thousand dollars.

Yes you can, and should. You file jointly, simple as that. Since you two work in the US you two together have to meet the income level.

Been there, done that.

2. If I can use my income, how do I prove that my employment will continue afterwards as stated in the guidelines of the I864?

You don't have to, and there's no way to foresee the future, let alone proving such events. Been there, done that.

3. Will the fact that I was working unlawfully be a problem for me to use my income?

Not at all. It's a non issue and won't even come up during the interview.

We wanted to send this out after we fill our taxes and I just wanted to be clear on that.

Any help would be immensely appreciated!

Thanks

You don't need a lawyer, but if it makes you feel better and you can spare the $1K to retain one, go for it. Also, make sure you submit all 3 forms concurrently.

Edited January 24, 2010 by Just Bob

[Bobby+Umit 161]

The following is the legalese from the USCIS website on this matter. I am no lawyer but it seems to say that the intending immigrants income can be counted as part of the household income in order to meet the poverty guidelines. Am I reading this correctly? Or am I being overly optimistic

Thanks for the swift responses....and the great insight.

" The final rule, therefore, clarifies that the sponsor may rely on the intending immigrant's income if the intending immigrant is either the sponsor's spouse or has the same principal residence as the sponsor and can show by a preponderance of the evidence that the intending immigrant's income will continue, after acquisition of permanent residence, from the same source (such as lawful employment with the same employer or some other lawful source). The prospect or offer of employment in the United States tha t has not yet actually begun will not be sufficient to meet this requirement."

It can be used - however - as we have pointed out - actually getting a letter from your employer (which you are working for currently, illegally) to sign a letter stating you are working there and will continue to work there will be problematic at best.

They will basically be giving evidence that they are employing undocumented workers - and this is being sent to USCIS - do you see the problem now?

Now - if your employer does not know your working illegally, they may find out now, and in doing so, will not continue your employment.

Even for people that are working legally, some companies do not even give these letters showing employment (or continuation of such).

What would constitute evidence of "continued employment"

A letter from the employer stating this fact.

[Bobby+Umit 161]

You don't need a lawyer, but if it makes you feel better and you can spare the $1K to retain one, go for it. Also, make sure you submit all 3 forms concurrently.

2. If I can use my income, how do I prove that my employment will continue afterwards as stated in the guidelines of the I864?

You don't have to, and there's no way to foresee the future, let alone proving such events. Been there, done that.

Unfortunately - that is not the case.

Instructions for the I-864 state that if the intending immigrants income is to be used for the affidavit, they have to satisfy this condition;

If certain conditions are met, the intending immigrant's income can help you meet the income requirement. If the intending immigrant is your spouse, his or her income can be included if it will continue from the same source after he or she obtains lawful permanent resident status.

So - either they prove it will continue - or get a co-sponsor.

[English Muffin 59]

" The final rule, therefore, clarifies that the sponsor may rely on the intending immigrant's income if the intending immigrant is either the sponsor's spouse or has the same principal residence as the sponsor and can show by a preponderance of the evidence that the intending immigrant's income will continue, after acquisition of permanent residence, from the same source (such as lawful employment with the same employer or some other lawful source). The prospect or offer of employment in the United States tha t has not yet actually begun will not be sufficient to meet this requirement."

The OPs employment isn't lawful.

[Brother Hesekiel 2,236]

People,

let me clarify something. If somebody is about to immigrate to the US, that person's income cannot be used to satisfy the requirement, as nobody knows if he or she will be able to continue making that kind of money once in the US.

Somebody who lives in the US for 9 years and pays income taxes, doesn't have to prove that he can make enough money, as he did already for years. That's all what USCIS cares about. They're also not the police, trying to catch people who have been working without permit. I did that for almost 14 years. The moment the I.O. and his USC wife move out of the AOS interview, his income aspects have actually improved considerably. If their joint tax return shows that they made $37K last year, they're in the clear.

[lostinnc 0]

You don't need a lawyer, but if it makes you feel better and you can spare the $1K to retain one, go for it. Also, make sure you submit all 3 forms concurrently.

Is there any particular reason the forms have to be filed concurrently? Can you file the i130 then file the rest when you get your receipt back?

[Anh map 2,098]

People,

let me clarify something. If somebody is about to immigrate to the US, that person's income cannot be used to satisfy the requirement, as nobody knows if he or she will be able to continue making that kind of money once in the US.

Somebody who lives in the US for 9 years and pays income taxes, doesn't have to prove that he can make enough money, as he did already for years. That's all what USCIS cares about. They're also not the police, trying to catch people who have been working without permit. I did that for almost 14 years. The moment the I.O. and his USC wife move out of the AOS interview, his income aspects have actually improved considerably. If their joint tax return shows that they made $37K last year, they're in the clear.

A person immigrating to the US and continuing their employment can use their income. Verification from their employer is the proof. Just as with a USC being a sponsor: paystubs and employer letter.

Edited January 24, 2010 by Anh map

[Kathryn41 3,205]

Is there any particular reason the forms have to be filed concurrently? Can you file the i130 then file the rest when you get your receipt back?

The I-130 is the petition requesting permission for an immigrant family member to apply to become a permanent resident

The I-485 is the application from the immigrant family member to become a permanent resident.

You can certainly file the I-130 first and then the I-485 after but the problems then become -

a) matching up the I-130 and the I-485 and the potential delay (not a problem when filed together);

b ) until the I-485 is filed any out of status time continues to accumulate which puts the immigrant at risk. The approval of the I-130 may be a long time and you can't file the AOS until you have proof of the I-130 filing - which may get lost or delayed. Once the I-485 is filed the immigrant again has legal status in the US;

c) filing the two documents consecutively rather than concurrently increases the processing time before the immigrant can become a permanent resident

It is a far better idea to file these two forms together as it expedites and simplifies the processing of the AOS.

The three forms JustBob is mentioning are the I-485, the I-131 and the I-765 - the AOS, the Advance Parole travel document and the Employment Authorization Document respectively. These three are all considered together under the same filing fee and should be filed together initially. Renewals, if necessary, would be filed later individually.

Edited January 24, 2010 by Kathryn41

[lostinnc 0]

Regarding the tax returns filed with the i864, are the requirements the most recent year or the most recent 3 years? There seems to be a little confusion regarding this.