I-864 income requirements... just to double check

[devi 0]

I read the pinned up I-864 affadavit of support thread, but just want to make sure:

If I as the sponsor applies for adjustment of status to a greencard in early 2011, after I've filed my taxes, I need only provide my tax form for the last year, correct? And if that tax form shows my total income exceeded the 125% poverty level, that's it, right?

I've been low income for the 2 years before, but am working extra this year to make sure I beat the poverty level. If they only look at the most recent tax year, i'm good, if they look back farther, I'm screwed. (But its not because i'm actually bordering on being poor... I've got cash in savings, and have just been working on a long-term project that could kick off a different career, but haven't received dividends from it yet.)

Thanks for the clarification!

devi

[Winonan 3]

They only look at the most recent one. When my wife sponsored me, we only sent the 2009 tax return because she was poor before that. Did not run into any problems.

[devi 0]

Awesome, thanks!

[Anh map 2,098]

Current and continuing income (what you are earning presently) is what is measured. Document that with recent paystubs and an employer letter.

Submitting the tax returns from the 3 most recent tax years shows that the sponsor has actually filed, which is a requirement (page 8 I-864 instructions)

[devi 0]

So wait, they only measure my current income (and proof that I'm employed), right?

But they will want my last 3 years just to see I'm not evading taxes, yet won't use this to measure me against the poverty level?

[JimVaPhuong 4,864]

So wait, they only measure my current income (and proof that I'm employed), right?

But they will want my last 3 years just to see I'm not evading taxes, yet won't use this to measure me against the poverty level?

No. There are two check boxes to choose from in section 25 of the I-864. One check box basically states that you've filed your taxes for the past three years, but are providing only your most recent year's tax return. You still need to write in your total income for all three years. The other check box states you are including all three years tax returns.

People who choose to provide three years tax returns are usually demonstrating their income is consistently high enough to qualify. They submit only the tax returns and a letter of employment. They don't need to include pay stubs or other proof of income. Providing three years of tax returns wouldn't help you, so you need to provide evidence of current income. Bear in mind that the immigration officer has some discretion, and are allowed to consider your past income history in determining if your future income is likely to be enough for the foreseeable future. They might still ask you to get a co-sponsor.

[devi 0]

No. There are two check boxes to choose from in section 25 of the I-864. One check box basically states that you've filed your taxes for the past three years, but are providing only your most recent year's tax return. You still need to write in your total income for all three years. The other check box states you are including all three years tax returns.

How is total income calculated? From Box 22 of the IRS 1040 form? (Total Income)

Also, do my total wages have to exceed the 125% poverty level? (the sum of my W2's) or my "Total Income" per IRS 1040 Box 22, which includes business income/losses, captail gains/losses, etc.?

[Rebecca Jo 1,962]

Current and continuing income (what you are earning presently) is what is measured. Document that with recent paystubs and an employer letter.

Submitting the tax returns from the 3 most recent tax years shows that the sponsor has actually filed, which is a requirement (page 8 I-864 instructions)

That is not the requirement. Only the most recent tax year is required for adjustment of status if the sponsor is not self employed. The rules are clear on this.

[Rebecca Jo 1,962]

How is total income calculated? From Box 22 of the IRS 1040 form? (Total Income)

Also, do my total wages have to exceed the 125% poverty level? (the sum of my W2's) or my "Total Income" per IRS 1040 Box 22, which includes business income/losses, captail gains/losses, etc.?

Line 22 of the 1040. Yes, you must be over 125% of the current US poverty guidelines.

Read this Interoffice Memorandum issued to adjudicators in 2006 when the I864 was modified. I know it's 27 pages long but your answers are all here.

http://www.uscis.gov/files/pressrelease/AffSuppAFM062706.pdf

[JimVaPhuong 4,864]

That is not the requirement. Only the most recent tax year is required for adjustment of status if the sponsor is not self employed. The rules are clear on this.

Anh Map was talking about the requirement that you must have FILED tax returns in the prior three years. He wasn't saying that it's required to submit copies of the returns for all three years.

From page 8 of the instructions (which me mentioned):

If you were required to file a Federal income tax return during any of the previous three tax years but did not do so, you must file any and all late returns with IRS and attach an IRS-generated tax return transcript documenting your late filing before submitting the I-864 Affidavit of Support. If you were not required to file a Federal income tax return under U.S. tax law because your income was too low, attach a written explanation. If you were not required to file a Federal income tax return under U.S. tax law for any other reason, attach a written explanation including evidence of the exemption and how you are subject to it.

[Rebecca Jo 1,962]

Anh Map was talking about the requirement that you must have FILED tax returns in the prior three years. He wasn't saying that it's required to submit copies of the returns for all three years.

From page 8 of the instructions (which me mentioned):

If you were required to file a Federal income tax return during any of the previous three tax years but did not do so, you must file any and all late returns with IRS and attach an IRS-generated tax return transcript documenting your late filing before submitting the I-864 Affidavit of Support. If you were not required to file a Federal income tax return under U.S. tax law because your income was too low, attach a written explanation. If you were not required to file a Federal income tax return under U.S. tax law for any other reason, attach a written explanation including evidence of the exemption and how you are subject to it.

True.

But the statement made was submitting the returns proves filing. That's the part I was "correcting".

[devi 0]

So just to confirm my bottomline:

I need my line 22 of my 1040 to exceed the 125% poverty level for my next taxes, and that's it. They won't look at my previous 3 years of taxes, though they will ask if I filed (which I did). But they won't actually look at my previous years.

So, given that my "last" tax filing (really my next one, to be done asap in Jan 2011) will exceed 125% of the poverty level, and I have filed taxes for the last 3 years, and that I can provide proof in the form of recent pay stubs showing I'm still employed, then I should be given permission to be the sole sponsor. Do I have that right?

Thanks for all the replies!

[Dakine 26]

So just to confirm my bottomline:

I need my line 22 of my 1040 to exceed the 125% poverty level for my next taxes, and that's it. They won't look at my previous 3 years of taxes, though they will ask if I filed (which I did). But they won't actually look at my previous years.

So, given that my "last" tax filing (really my next one, to be done asap in Jan 2011) will exceed 125% of the poverty level, and I have filed taxes for the last 3 years, and that I can provide proof in the form of recent pay stubs showing I'm still employed, then I should be given permission to be the sole sponsor. Do I have that right?

Thanks for all the replies!

Call 1 800 829 1040 and get your last 3 years tax transcripts from IRS. They're better than returns.

Like others said they only look at your most recent years income. I was in the same boat as you and my wife didn't have any problems at the interview.

Edited September 6, 2010 by Dakine

[JimVaPhuong 4,864]

True.

But the statement made was submitting the returns proves filing. That's the part I was "correcting".

Fair enough. I can see how his statement could be interpreted either way.

So just to confirm my bottomline:

I need my line 22 of my 1040 to exceed the 125% poverty level for my next taxes, and that's it. They won't look at my previous 3 years of taxes, though they will ask if I filed (which I did). But they won't actually look at my previous years.

So, given that my "last" tax filing (really my next one, to be done asap in Jan 2011) will exceed 125% of the poverty level, and I have filed taxes for the last 3 years, and that I can provide proof in the form of recent pay stubs showing I'm still employed, then I should be given permission to be the sole sponsor. Do I have that right?

Thanks for all the replies!

All except for the "they won't look at your previous 3 years of taxes" part. They may look at them.

INA section 213 defines the requirements for the affidavit of support, and what constitutes a qualified sponsor. People generalize and say they only look at your most recent year's income. In fact, the law actually requires them to look at the past three years, but provides a discretionary exception. Subsection (6)(A) specifically requires that the IO receive and examine the previous 3 years tax returns, but subsection (6)(B) allows them to waive this requirement and require only the most recent year's tax return. The I-864 provides an option to comply with either subsection (6)(A) or (6)(B).

The point is that both of these sections of the INA apply to the sponsor's ability to "demonstrate a means to maintain income" which is at a minimum of 125% of the poverty level. They have discretion to determine whether you've met that requirement.

Also, the affidavit of support is not the only qualifying factor they take into account to determine if the immigrant is likely to become a public charge. They also consider the immigrant's age, health, education, family and financial status, etc. While it's a given that they won't accept a sole sponsor who doesn't meet the minimum requirements, there's a very good chance they'll accept a sole sponsor with a weak income history but who currently meets the minimum income requirements when it appears that the immigrant is readily employable. On the other hand, if you were sponsoring someone who was completely uneducated or had an unemployable disability then they'd probably deny you as a sole sponsor.

[Rebecca Jo 1,962]

Jim, I really like your work on here. But sometimes I think you scare people.

The service calls the examples you give in your post above "totality of circumstances". For the layperson, totality of circumstance can be a scary business because it is a vaguery. It's the part of the process where an AO can take a little detail and, in combination with other red flags or suspicions, deny the case.

I don't believe that in the case of a legitimate relationship, a marginal I-864 will be declined. The service is clear in its instructions to adjudicators as to where the line is drawn (for those individuals who are not self employed). That line is the most recent tax filing proving income over 125% of the US poverty guidelines. Adjudicating officers are not permitted to go searching for "reasons" to doubt the I-864. There has to be some CLEAR and VERIFIABLE reason for them to go fishing.

I am concerned about this statement of yours - "On the other hand, if you were sponsoring someone who was completely uneducated or had an unemployable disability then they'd probably deny you as a sole sponsor." When taken in the whole of the paragraph you wrote, you seem to be referring to a denial if the financials were marginal. Once again, I don't believe the service would decline an adjustment if the marriage was bonafide. To be brutally honest, such a denial could smack of discrimination.

The I-864 is a snapshot of the sponsor's financial condition on the day it was drawn. You, I and USCIS know that fortunes can change in an instant. It is my experience in reading cases all these years that the service is less concerned about past finances than they are with how finances stood the date of the I-864 and how things stand the date of the interview. I can recall having been asked at our adjustment (many years before the present I-864 came into effect) if there had been any change in our financial status since the I-864 was filed. There is Interoffice Memorandum dated June 2006 which gave AO's instruction to not query this question. In these times, though, it would not be out of line for an AO to ask this question. There was a consular cable issued last year giving DOS officers permission to query along these lines.

Anywho, I'm not standing here suggesting you are "wrong" or trying to pick a fight. I do think, however, that in the case of a legitimate relationship, there is less reason to be concerned about the minutia of the I864 provided it meets the minimum standard. Key to my contention here is, of course, the legitimacy of a relationship.

Keep up the good work!