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

[JimVaPhuong 4,864]

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!

The I-864 is not the one-and-only determining factor. INA 212(a)(4) provides the list of things which a consular officer or immigration officer will consider. An affidavit of support (under INA 213) is the last item on the list. Every other factor I listed - age, health, education, family and financial status, etc. - are not only things the IO can consider, but they are required to consider them.

Consider a sponsor who meets the minimum requirements set out in INA 213, but just barely. The IO can check that item off the list - they have a qualified sponsor. Now, consider that the sponsored immigrant is elderly, has a health condition that requires ongoing expensive treatment, is uneducated, dirt poor, and unemployable. It would be difficult for an IO to conclude that the immigrant is not likely to become a public charge under those circumstances. The IO's checklist would have a litany of negative strikes versus a single barely qualified sponsor. If they follow the guidance in the Adjudicators Field Manual then they should find that immigrant inadmissible under INA 212(a)(4).

[Rebecca Jo 1,962]

The I-864 is not the one-and-only determining factor. INA 212(a)(4) provides the list of things which a consular officer or immigration officer will consider. An affidavit of support (under INA 213) is the last item on the list. Every other factor I listed - age, health, education, family and financial status, etc. - are not only things the IO can consider, but they are required to consider them.

Consider a sponsor who meets the minimum requirements set out in INA 213, but just barely. The IO can check that item off the list - they have a qualified sponsor. Now, consider that the sponsored immigrant is elderly, has a health condition that requires ongoing expensive treatment, is uneducated, dirt poor, and unemployable. It would be difficult for an IO to conclude that the immigrant is not likely to become a public charge under those circumstances. The IO's checklist would have a litany of negative strikes versus a single barely qualified sponsor. If they follow the guidance in the Adjudicators Field Manual then they should find that immigrant inadmissible under INA 212(a)(4).

Perhaps.

But that is not the case for most of the folks we advise on here, is it? Most are not elderly (I would hope that would NEVER be a strike against an immigrant). Whether or not the immigrant is employable should never be a consideration as that is what the I864 is for. And in the case of spousal sponsorship, the sponsoring spouse may have low earnings but they may also have health cover which insures the immigrant at marriage.

As I said above, I'm not saying you are wrong. I merely contend that in the case of those we advise on VJ, a "marginal" affidavit of support is fine as long as the relationship is bonafide.

[JimVaPhuong 4,864]

Perhaps.

But that is not the case for most of the folks we advise on here, is it? Most are not elderly (I would hope that would NEVER be a strike against an immigrant). Whether or not the immigrant is employable should never be a consideration as that is what the I864 is for. And in the case of spousal sponsorship, the sponsoring spouse may have low earnings but they may also have health cover which insures the immigrant at marriage.

As I said above, I'm not saying you are wrong. I merely contend that in the case of those we advise on VJ, a "marginal" affidavit of support is fine as long as the relationship is bonafide.

The OP was looking for reassurance that the immigration officer won't look at his income for all three of the most recent tax years. Nobody can promise that. In fact, the INA specifically requires them to consider three years of tax returns, but allows them to waive that requirement. It would also be misleading to tell someone that they are virtually assured of not being denied on the "public charge" requirement after submitting an affidavit of support that barely qualifies.

Department of State guidance on this is pretty clear:

http://www.americanlaw.com/affidavitrule3.html

If the applicant(s) suffer from poor health or serious physical impairment, are likely to need medical treatment, or are otherwise not likely to be able to support themselves, closer scrutiny of the sponsor's ability to provide the requisite level of support may be necessary. For example, a sponsor who is able to demonstrate an income that barely meets the minimum requirement, should have to demonstrate clearly that he/she has the resources to cover an applicant requiring extensive or long-term medical expenses. In such cases, a joint sponsor with substantial resources would have to provide an Affidavit of Support. (Note: Medical considerations should only be for conditions that exist at the time of the interview. A healthy elderly applicant, for example, should not be denied a visa simply because s/he might require medical care at some point in the future.)

A consular officer can also deny a sponsor who is qualified on income if they believe he/she has financial obligations that will make it difficult for him/her to provide the required level of support:

Conversely, a sponsor who meets the income requirement may have financial obligations that severely reduce the amount of support s/he could realistically provide to the applicant. Interviewing officers may request additional information regarding the petitioner's financial situation as needed. Such requests should not be routinely made of all applicants/petitioners, but should be limited to those cases where the additional information is essential to adjudication.

Unfortunately, we don't know what guidance USCIS gives to immigration officers because the "public charge" section of the Adjudicators Field Manual has been redacted in the public version, and they only have guidance on the affidavit itself. However, the same section of the INA applies to USCIS immigration officers, so I doubt it's significantly different from DoS policy.

I'm not trying to scare anyone, and I myself have told many people that all they need to do is meet the minimum requirements and they won't have any problems. In the majority of cases this is true. When someone is looking for more - essentially, they want a promise that there is no way they will have any problems, that's when I stop short. I don't know all the details of the OP's case, and I can't promise him that the immigration officer isn't going to look at his income for previous years, or that having barely sufficient income in the most recent year is guaranteed to win an approval. It sometimes doesn't. Knowing what the IO will consider allows him to evaluate his own situation and determine if there's a likelihood any of those other criteria will cause a problem. It avoids the all too familiar scenario of a VJ member being assured they'll succeed, and after being denied they come back and reveal the shell shocker that caused the denial while asking "Why didn't someone tell me that this could be a problem?"

[Anh map 2,098]

True.

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

Hair splitting acknowleged. I was taking the leap of faith that the return(s) would have actually been filed.

The best thing for me to say would be to submit the transcripts from the most recent 3 years....

[devi 0]

The best thing for me to say would be to submit the transcripts from the most recent 3 years....

How long does it take for a recent tax sumbission to be available as a transcript? Or can I have the 2 prior years tax transcripts and the 1040 itself for the last year which shows my income exceeds the poverty level?

Also, what do these transcripts show? How long do I have to wait to get them after calling?

[JimVaPhuong 4,864]

How long does it take for a recent tax sumbission to be available as a transcript? Or can I have the 2 prior years tax transcripts and the 1040 itself for the last year which shows my income exceeds the poverty level?

Also, what do these transcripts show? How long do I have to wait to get them after calling?

I ordered and received transcripts of my 2009 return before I got my refund check! For the first time in years, I had to file a paper return this year. I filed jointly with my new wife, and she had no previous years' AGI to use for eFiling. Two weeks after I mailed the return I ordered transcripts for three years. About 8 days after that I received the transcripts, including the transcript for the return I'd just filed. A couple of weeks after that I got my refund check.

You should be able to order transcripts within a few weeks of filing, in most cases. You should receive the transcripts within two weeks. If you're in a hurry, they'll fax them to you the same day.

The transcript contains a list of practically every line on every form and schedule. For each line it includes a brief description and the amount. For example:

TOTAL INCOME....................$34,567

No, that's not my actual total income...

[Rebecca Jo 1,962]

Hair splitting acknowleged. I was taking the leap of faith that the return(s) would have actually been filed.

The best thing for me to say would be to submit the transcripts from the most recent 3 years....

It's not hair splitting. Only the most recent tax return is required. It is not required to submit the last three. Transcripts or otherwise.

The OP was looking for reassurance that the immigration officer won't look at his income for all three of the most recent tax years. Nobody can promise that. In fact, the INA specifically requires them to consider three years of tax returns, but allows them to waive that requirement. It would also be misleading to tell someone that they are virtually assured of not being denied on the "public charge" requirement after submitting an affidavit of support that barely qualifies.

Department of State guidance on this is pretty clear:

http://www.americanlaw.com/affidavitrule3.html

If the applicant(s) suffer from poor health or serious physical impairment, are likely to need medical treatment, or are otherwise not likely to be able to support themselves, closer scrutiny of the sponsor's ability to provide the requisite level of support may be necessary. For example, a sponsor who is able to demonstrate an income that barely meets the minimum requirement, should have to demonstrate clearly that he/she has the resources to cover an applicant requiring extensive or long-term medical expenses. In such cases, a joint sponsor with substantial resources would have to provide an Affidavit of Support. (Note: Medical considerations should only be for conditions that exist at the time of the interview. A healthy elderly applicant, for example, should not be denied a visa simply because s/he might require medical care at some point in the future.)

A consular officer can also deny a sponsor who is qualified on income if they believe he/she has financial obligations that will make it difficult for him/her to provide the required level of support:

Conversely, a sponsor who meets the income requirement may have financial obligations that severely reduce the amount of support s/he could realistically provide to the applicant. Interviewing officers may request additional information regarding the petitioner's financial situation as needed. Such requests should not be routinely made of all applicants/petitioners, but should be limited to those cases where the additional information is essential to adjudication.

Unfortunately, we don't know what guidance USCIS gives to immigration officers because the "public charge" section of the Adjudicators Field Manual has been redacted in the public version, and they only have guidance on the affidavit itself. However, the same section of the INA applies to USCIS immigration officers, so I doubt it's significantly different from DoS policy.

I'm not trying to scare anyone, and I myself have told many people that all they need to do is meet the minimum requirements and they won't have any problems. In the majority of cases this is true. When someone is looking for more - essentially, they want a promise that there is no way they will have any problems, that's when I stop short. I don't know all the details of the OP's case, and I can't promise him that the immigration officer isn't going to look at his income for previous years, or that having barely sufficient income in the most recent year is guaranteed to win an approval. It sometimes doesn't. Knowing what the IO will consider allows him to evaluate his own situation and determine if there's a likelihood any of those other criteria will cause a problem. It avoids the all too familiar scenario of a VJ member being assured they'll succeed, and after being denied they come back and reveal the shell shocker that caused the denial while asking "Why didn't someone tell me that this could be a problem?"

I understand what you are saying. We can never give guarantees.

That being said though, I'm comfortable in my position on the issue.

Which doesn't mean I don't admire yours.

[Bobby+Umit 161]

Here is an interesting telegram that went out to the embassies.

The changes are reflected in the FAM - but this makes it easier to read/see what they are talking about.

I can see both Jim's and Johnny's point of view - but I tend to "cover" my bets by giving more info if one part of it is weak. (as the 864 instructions say, "if you think more will help your case")

One interesting thing I noticed was this:

(NOTE: You do not have the authority to request and/or require an individual to pay taxes or correctly report income to the Internal Revenue Service (IRS). You may advise applicants or sponsors that an original or amended tax return will be required in order to process an immigrant visa petition to conclusion, however.)

One side of the government looking out for the other (State/IRS)

[devi 0]

Thanks again for eveyone's replies! devi