I-864 (Affidavit of Support) Refusing Applicant Husband's Army Pension in Household Income

[tenyearwait 4]

Sorry this is so long - I did work on reducing it- but if you know how to handle it, please just skip the detail and quote "Question 1:" or whatever and skip the rest.... thanks )

We were in great spirits because on Monday I had my ASC Biometrics appointment - always a good sign that things are really moving. So despite the email giving advance warning that a request for initial evidence was on its way, we thought I might actually get a green card before I die! But the request wasn't related to anything we could have foreseen - the I-864 Affidavit of Support.

Our last year tax return shows income exceeding this year's 125% of Poverty Guideline by a reasonably large margin. Most of this is fixed income NONE of which is from employment and all of which continues into the foreseeable future. Most of my wife's (U.S. Citizen, Petitioner, Sole Sponsor) comes from her permanent disability (SSDI and private Disability Insurance benefits); she gets a small amount from some rental income which isn't so certain. I (I-485/I-765/I-131 Applicant) get a British Army Pension which is index linked and continues until my death (which is, incidentally, one of the points at which the sponsor is released from their contract!). Thus we didn't need to complicate things by including assets, but without my income there would be a serious shortfall.

The request for Initial Evidence contains 3 sheets:

• Sheet 3 states "Based on the documents submitted with Form I-864 ... the income did not meet 125%" etc and requests evidence of assets or a joint sponsor.
• Sheet 2 states "The household member on Form I-864A, Contract Between Sponsor and Household member, failed to submit proof of current income". and requests that evidence.
• Sheet 1 states that "For the household member's income to be included in the household income, the household member's income must have been from a lawful source and earned while the household member was authorized to work in the United States." and requests evidence that I was authorized to work in the U.S.

Taking that apart - assuming that Sheets 1 and/or 2 are correct, Sheet 3 is correct.

Sheet 2 is incorrect in that there IS no household member on Form I-864A as we did not submit a I-864A because if the household member is the applicant, you do not submit one. Secondly, we submitted the IRS Transcript of our jointly filed 2009 Tax Return which includes my Army Pension income even though it is untaxable and does not need to be included. We also submitted a notification letter from the U.K. Army Paymaster who pays the pension confirming that I receive the pension and the amount. And we included the notification from the same office which comes each year notifying the new monthly amount after index-linking (which takes account of inflation). I am not sure how I prove that it continues until my death, but then I didn't know there were any military pensions which didn't do that! And I am not sure what other evidence we could provide. If I request documentary evidence from the U.K. Army Paymaster, he will send me another letter just like the one we submitted. The only variation apart from a small adjustment each April to account for inflation is the exchange rate Pounds to Dollars and we included a chart downloaded from XE.COM to show the rate we used to convert the amounts shown on those other documents (we were told the U.S. Government doesn't use central tables of currency conversions issued by the Treasury for these things which seems strange but using any table produces similar figures).

Sheet 1 is totally incorrect. There is no requirement to have employment authorization in order to have legal and applicable income - it just must not be EARNED income.

I called the national support line. Once he understood the problem Agent number one passed me on to a Customer Service agent who agreed that there was something odd and escalated it to a "Specialist" who turned out to be what is formally called an Immigration Services Officer. This was the FIRST person on this line who provided a name but no ID number. From her behavior, I believe I know why. She pointed out that "your income cannot be included in the household income because you are the applicant and that would mean that you were attempting to self-petition". Huh??? She then explained that in order for a household member's income to be included in the total, the household member had to have been living there for at least 6 months and that as I was immigrating from the U.K. that could not apply. I explained that we married here over 10 years ago and that I have been resident for tax purposes on the U.S. for more than 12 years but that since the INS cancelled my employment authorization in 2002, I have gained no income other than from my Army Pension as I cannot afford to risk my application being denied. She then repeated that my income could NOT be included. I quoted the instructions on form I-864 which state "If you included the income of the intending immigrant whois your spouse (he or she would be counted on line 21a),evidence that his/her income will continue from the currentsource after obtaining lawful permanent resident status mustbe provided. He/she does not need to complete FormI-864A unless he/she has accompanying children." at which point she said "Do what you want, have a good day" and hung up!

I called the line again and informed them what happened and they told me to email the Ombudsman and to re-submit the same evidence in response to the request.

Meanwhile, I dug out the following document which obviously has not yet arrived at the desk of whoever is dealing with my application in Missouri. In an Inter-office Memorandum to all the offices, "Clarification of Policy Regarding USCIS Form I-864, Affidavit of Support HQRPM 70/21.1" clarification was made on a number of points which had obviously caused problems. The relevant extract is as follows:

(4) Use of Intending Immigrant's Income. If the sponsor does not meet the income requirement on the basis of his or her own income and/or assets, the sponsor may also count the intending immigrant's income if (1)(a) the intending immigrant is either the sponsor's spouse or (b) has the same principal residence as the sponsor, and (2) the preponderance of the evidence shows that the intending immigrant's income results from the intending immigrant's lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status. The prospect of employment in the United States that has not yet actually begun does not count toward meeting this requirement.

Note: The revised definition of "household income" retains the requirement that, unless the intending immigrant is the sponsor's spouse, the intending immigrant must have the same principal residence as the sponsor in order for the sponsor to rely on the sponsored immigrant's income. It is no longer required, however, that the intending immigrant must have had the same principal residence as the sponsor for at least 6 months.

Note: The interim rule did not directly address the ability of a sponsor to rely on an intending immigrant's income from unauthorized employment in meeting the Poverty Guidelines threshold for the sponsor's household income. In response to a specific comment relating to the issue of the sponsor's reliance on an intending immigrant's income, the revised definition of "household income" now makes it clear that income from an intending immigrant's unauthorized employment may not be considered in determining whether the sponsor's anticipated household income meets the applicable Poverty Guidelines threshold. The basis for this clarification is the clear public policy, as stated in INA §§ 245©(2) and 274A, 8 U.S.C. §§ 1255©(2) and 1324a, against unauthorized employment. Unauthorized employment, admittedly, is not always a bar to adjustment of status. Nevertheless, sections 212(a)(4)© and 213A clearly assume that it is primarily the sponsor himself or herself who must meet the income threshold for the Form I-864. This principle is gravely undermined by permitting the sponsor to rely on the intending immigrant's income, if it is derived from unlawful employment.

If there is an accompanying spouse and/or child listed on the Affidavit of Support, then the sponsored intending immigrant must also complete a Form I-864A. If, however, the sponsored intending immigrant is the only person included on the Affidavit of Support, then he or she does not need to complete a Form I-864A.

QUESTION 1: Does anyone know if there is an update to that guidance or if it has been incorporated into the form instructions? If not, I am going to use the preponderance thing

QUESTION 2: If we quote this "clarification" in a covering letter re-submitting the same documents we submitted before showing the Army Pension can we rely on the fact that "military pensions last until death" is a "preponderance of evidence" or do we have to treat USCIS employees as coming from another planet? if the latter, I have to write to a U.K. government agency asking them to write me a letter worded "just so" which isn't likely to get the exact response I want - I mean they will write me a letter saying "this letter is to confirm that you receive an Army Pension of X pounds per annum" but to ask them for more detail will probably obtain a "huh?" response lol

QUESTION 3: If we quote that clarification memo, are we going to be sidelined once again because the Immigration Officers don't know their own rules (which is OK) but we are helping them remember them (which is not OK) which is what we believe happened 8 years ago? Which means I will DIE before getting my green card |

We are going to find it hard to prove that the pension will not be affected by me being given permanent residence status! I mean, they pay it to the same place every month whether or not they even KNOW where I am and will probably continue to do so even AFTER I am dead until someone informs them of my untimely passing. But proving that to someone sitting in a cocoon seems to be virtually impossible.

Any suggestions how we approach this? I would rather not include Assets just because someone doesn't want to include half our income and it means piling up all sorts of things to get three times the shortfall once we take our mortgage out of the equation.

QUESTION 4: If we have to use Assets, all of which are jointly owned, we have to use our home, two other small pieces of land and one of our vehicles. The instructions on the form state that we must use a recent appraisal from a licensed appraiser which adds even more expense to this limited budget household and will further delay things. Does anyone know if we can use the Tax Assessor's valuations on our tax statements for the land? If so, can we use the Fair Market Value rather than the taxable value?

QUESTION 5: If we include a vehicle, can we do the same and/or can we use the State Department of Revenue valuation tool and printout the result page?

[Anh map 2,098]

Not in any particular order

Tax assessments are not accepted in lieu of the required valuation from a licensed appraiser. They need a current market valuation when evaluating assets.

Primary vehicles are not typically accepted as assets. (selling your primary vehicle would present a significant hardship).

Did your pension document(s) from the UK Army Paymaster give details such as term (payable until death)? If it was a statement of what you received for a specific time period, they do not have evidence of continued payments.

Refer to the appropriate sections of the form instructions regarding income of the intending immigrnat not needing an accompanying I-864A.

Connect the dots for the document reviewer.

[JoannaV 173]

It is hard for anyone to give you much advice, because it does sound like a case of USCIS being stupid.

The only thing I can say is to resubmit your evidence with a detailed, simple, clear outline explaining everything and how it relates to the law etc. Also email the Ombudsman like they told you to.

[tenyearwait 4]

Thanks for the reply

Primary vehicles are not typically accepted as assets. (selling your primary vehicle would present a significant hardship).

Yes, it said that in the "Step by Step" instructions. We have two vehicles and provided we show title to two, we can use the other as an Asset. We can't use an appraiser and the State DOR provides a valuation for tax purposes tool and it's free. Can we use that or is there some clever USCIS method we have to pay for?

Did your pension document(s) from the UK Army Paymaster give details such as term (payable until death)? If it was a statement of what you received for a specific time period, they do not have evidence of continued payments.

It didn't. It's a Military Pension - any reasonable person would know without a shadow of doubt that military pensions are paid for the remainder of a veteran's life (and sometimes beyond in the case of widow's pensions). I guess it was stupid to think that a USCIS employee would know everyday normal things about the applicants he deals with. I will act on your point and obtain another letter which will cause yet more delay.

Refer to the appropriate sections of the form instructions regarding income of the intending immigrnat not needing an accompanying I-864A.

Connect the dots for the document reviewer.

You're kidding me, right? You mean they need me to tell them how they should do their job? Well, live and learn - I can do that, but I would have thought it would really annoy them which turned out to be a dangerous activity last time we got this far into an application process - they hold all the cards and we are suffering over 8 years later as a result!

Thanks again for your help.

[tenyearwait 4]

It is hard for anyone to give you much advice, because it does sound like a case of USCIS being stupid.

The only thing I can say is to resubmit your evidence with a detailed, simple, clear outline explaining everything and how it relates to the law etc. Also email the Ombudsman like they told you to.

Thanks.

[Nik+Heather 121]

What sort of entry are you adjusting from? You mention that you have been married for several years, so I just wonder if this is a VWP adjustment or some other type of visa?

If VWP, then I would caution you to be extremely meticulous about your response because there is no option for appeal if you are denied. Given that USCIS has been stupid about this once, there's nothing to say that they won't be stupid about it again.

I think you should engage your congressperson or one of your senators and get their immigration liaison staffer to look into it for you. It could be that with some phone calls on their part they can make your point about the existing submission and move it along past the RFE. They will have the ability to contact much more capable IOs and it's harder for the USCIS to hang up on them and dismiss their arguments. At the very least, engaging them at this point will be good if your response goes pear-shaped and you need their help getting the case re-opened without fee etc.

Regarding all of your other points, it looks like you're more researched than I, but it all makes sense to me. Good luck!

[VanessaTony 3,567]

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as your OP implies you are adjusting from a visa other than a K1, K2, K3 & K4 which the prior forum is for **

[tenyearwait 4]

** moved from "Adjustment of Status (Green Card) from Family Based Visas" to "Adjustment of Status from Work, Student, & Tourist Visas" as your OP implies you are adjusting from a visa other than a K1, K2, K3 & K4 which the prior forum is for **

Sorry I started in the wrong forum again

Thanks - didn't notice that!

[tenyearwait 4]

What sort of entry are you adjusting from? You mention that you have been married for several years, so I just wonder if this is a VWP adjustment or some other type of visa?

If VWP, then I would caution you to be extremely meticulous about your response because there is no option for appeal if you are denied. Given that USCIS has been stupid about this once, there's nothing to say that they won't be stupid about it again.

I think you should engage your congressperson or one of your senators and get their immigration liaison staffer to look into it for you. It could be that with some phone calls on their part they can make your point about the existing submission and move it along past the RFE. They will have the ability to contact much more capable IOs and it's harder for the USCIS to hang up on them and dismiss their arguments. At the very least, engaging them at this point will be good if your response goes pear-shaped and you need their help getting the case re-opened without fee etc.

Regarding all of your other points, it looks like you're more researched than I, but it all makes sense to me. Good luck!

Not Visa Waiver Program. Last entry was on a B1/B2 Visa and of course was subject to examination at port of entry. As it happens, it was my first (and only) entry on that visa despite it being valid for 10 years as I married during that first 6 month visit. (If you want the details, I can provide them, but they are entirely irrelevant especially as the Business visit produced a success which turned into a disaster as the U.K. Company's only U.S. rep. lost his Employment Authorization 2 years later.)

We engaged my wife's Congressman when the first application was denied in 2002. However, they were incredibly useless and just wasted our time taking us past deadlines for submission waiting for them to advise us that we should do something which we had suggested was our only course of action anyway. The change from DoJ to DHS meant the file apparently vanished and the change in Congressional district boundaries meant that we came under a different Congressman's office and they weren't interested in anything that happened before the date we approached them so they said "start again" which we did and here we are. You think we should get the "new" Congressman's office to start being on our team?

[Nik+Heather 121]

Well, you do have two senators and one congressman/congresswoman to work with, so when I was looking for help with Nik's case, I actually called all 3 and after a sort of interview with each of their immigration staffers, I picked the best one to help us out and continued that way. People on VJ do seem to have somewhat hit or miss luck with their representatives, maybe the new guy will be better for you.

As I said before you sound really well researched in this area, and I agree with your conclusions - I just wonder if the source of the response might not garner more success for you. Plus, I don't consider it to be a risky thing to do. At least give it a shot. If they can't get a favorable response by the time you have to respond by mail to meet your deadline, then mail your letter off, with a cc to the ombudsman's office.

[Nik+Heather 121]

This thread made me think of your problem, and I wonder if you had a copy of your previously submitted I-864 to see if you checked the correct box?? Go down a few posts, and there's a snippet of the form.

http://www.visajourney.com/forums/topic/251383-i-864-example-form-error/

[tenyearwait 4]

Well, you do have two senators and one congressman/congresswoman to work with, so when I was looking for help with Nik's case, I actually called all 3 and after a sort of interview with each of their immigration staffers, I picked the best one to help us out and continued that way. People on VJ do seem to have somewhat hit or miss luck with their representatives, maybe the new guy will be better for you.

As I said before you sound really well researched in this area, and I agree with your conclusions - I just wonder if the source of the response might not garner more success for you. Plus, I don't consider it to be a risky thing to do. At least give it a shot. If they can't get a favorable response by the time you have to respond by mail to meet your deadline, then mail your letter off, with a cc to the ombudsman's office.

Well, not being a Nationalization applicant I had to work that one out (more an arithmetic problem than a Civics Question! lol

Interesting point. Why Congressman? Well, we live in a rural community outside a small hamlet (village -> town -> city) where the if the post-delivery-lady delievers a small handheld package which requires a signature, she gets to drive a 4 wheel drive SUV and if she looks tearful, one politely asks what the problem is, invitges her in for a cuppa (well, maybe a glass of sweet tea homemade of course) only to ind out that, being a well-travelled foreigner, the tears and breakdown were caused because you were the only person who asked in the previous 5 days since her husband died). Sorry - rambling on here...

Well, it was our postlady who mentioned that not only would she be happy to swear under oath that nothing resembling a missive from INS was delivered in the period applicabale which caused our application to be denied, but that an acquaintance had great success with INS after referring the matter to the said Congressman'soffice.

I know that there is a Congressional representative in the local CIS office (and I assume in missouri where our application is still vegetating, but does the Senate have a rep too? (Wow! This erstwhile institutional development consultant would have field day with these guys if they were classified as a developing nation instead of being wrongly filed lol - really - just kidding! hehe)

Q1: OK so what happens if we referred the matter to the Congressman's office and then approach the Senator's offices? do they all get kinda antsy and help to junk our app?

Q1: As for the link, I have to say that "None" wasn't what we put there. I also want to admire the fact that, without resort to images, the poster showed a portion of the pdf form (completed) and although technically advanced I couldn't work out how to show my form! Any ideas? (Maybe it's just age and I need to leave it to the young folks lol)

Thanks for the detailed, multiple responses. I am sure I am not alone in searching for a glimmer of help to ease the way here in finding that the level of involvement in so many of the responders encourages us to try to remember our pain and vow to return with so much extra knowledge once our tenyearwait bears fruition In that thinking, the idea of firing off some requests for representative help before beating the deadline seem very appealing. Also, in a few weeks, I will probably have documentary evidence which spells out the idiocy (military pensions last forever - need a jingle to spell it out? lol (and I really am kidding because I know the pressure these overworked government employees are under) but more importantly satisfies the RFEs. So I might give it a try if the pressure of my unpaid activities allow me to devote time to it

[Nik+Heather 121]

You are so funny! - the pressure of your unpaid activities...I am green with envy of you retired people! I saw in this gift catalog a clock which just said what day of the week it was!!

I have seen people engage more than one representative - I'm not sure it would hurt except that if they contact two different people and both are trying to look at the same file....Usually they use them in series - ask the congressman to look at it this week, he comes back with a response, then turn to the senator etc. If you've already started with one then just continue on, but if you haven't, then exploring your options might be a good idea. When I was fishing for help, one office never called me back, so I guess they wouldn't be very helpful anyway!

I'm not that technically savvy either, so can't help you with that.