I-864 Poverty Guidelines: what income should we use?

[Lilyena 10]

Hi everyone

I am aware I might not post at the right place but I am confused and I need a quick answer. I am filing for AOS to adjust my status from a K1 visa and the I 864 is driving me nuts.

My husbands has a yearly income of approximately $ 23,000 which is above the 125% poverty guideline. BUT if we look at his recent tax returns (2008-2010) the gross income is way lower than those guidelines, especially since half of his salary is a fellowship. (He is a PHD candidate and a Graduate teaching assistant).

We also have assets but I doubt it makes 5 times $23,000. I am so confused because I thought we met the poverty guidelines and the tax returns made us doubt. What will they take into consideration? Will we need a co-sponsor?

Also we 're moving to japan in september which we didnt know when we started the whole process. There his income will be way above the poverty guidelines. I know we will have to apply for re entry permit but since we are gonna be back in the US in two years I really wanna be able to work and have a legal status..so I don't want the AOS to go wrong.

Thanks a lot for your help

[grrrrreat 109]

Hi everyone

I am aware I might not post at the right place but I am confused and I need a quick answer. I am filing for AOS to adjust my status from a K1 visa and the I 864 is driving me nuts.

My husbands has a yearly income of approximately $ 23,000 which is above the 125% poverty guideline. BUT if we look at his recent tax returns (2008-2010) the gross income is way lower than those guidelines, especially since half of his salary is a fellowship. (He is a PHD candidate and a Graduate teaching assistant).

We also have assets but I doubt it makes 5 times $23,000. I am so confused because I thought we met the poverty guidelines and the tax returns made us doubt. What will they take into consideration? Will we need a co-sponsor?

Also we 're moving to japan in september which we didnt know when we started the whole process. There his income will be way above the poverty guidelines. I know we will have to apply for re entry permit but since we are gonna be back in the US in two years I really wanna be able to work and have a legal status..so I don't want the AOS to go wrong.

Thanks a lot for your help

Is his gross income lower than $23k because part of the fellowship is not taxable? If so, that is OK but you will have to explain why it's not included on the tax return and provide other evidence that he actually makes that much. Basically, you need to figure out why his tax return income is lower than what he says he makes.

One thing is confusing. You say you are moving to Japan in September and need to apply for a reentry permit. The issue is that if your adjustment of status is not completed by September, which is very possible, you won't be able to leave the country without advance parole. If you leave without advance parole, your adjustment of status application will be abandoned. Advance parole is different from a re-entry permit, which can only be obtained after a Green Card is issued. Also, you will need to be present in the U.S. at least part of the time for biometrics and a possible interview. I am a little worried about your timeline.

It doesn't matter what he will make in Japan--the poverty guidelines are always the U.S. guidelines, and he needs to have a US source of income and domicile to qualify as a sponsor. Report what he is making now on the I-864 and explain why it is different from the tax returns. Also, since it is after April 17, you'll need a 2011 tax return too.

[Lilyena 10]

Is his gross income lower than $23k because part of the fellowship is not taxable? If so, that is OK but you will have to explain why it's not included on the tax return and provide other evidence that he actually makes that much. Basically, you need to figure out why his tax return income is lower than what he says he makes.

One thing is confusing. You say you are moving to Japan in September and need to apply for a reentry permit. The issue is that if your adjustment of status is not completed by September, which is very possible, you won't be able to leave the country without advance parole. If you leave without advance parole, your adjustment of status application will be abandoned. Advance parole is different from a re-entry permit, which can only be obtained after a Green Card is issued. Also, you will need to be present in the U.S. at least part of the time for biometrics and a possible interview. I am a little worried about your timeline.

It doesn't matter what he will make in Japan--the poverty guidelines are always the U.S. guidelines, and he needs to have a US source of income and domicile to qualify as a sponsor. Report what he is making now on the I-864 and explain why it is different from the tax returns. Also, since it is after April 17, you'll need a 2011 tax return too.

thank you for your quick answer.

Yes the fellowship is not taxable but we have all the papers showing how much he earns plus our assets should help us.

About us moving to Japan, yes I know about the advance parole. I am also worried about the timeline but since I have no choice than adjust my status...We are going to explain that in the AOS anyways.

I was hoping to have the green card before leaving, in order to have the re entry permit, but if not I guess ill just hope to have advance parole...Otherwise i guess Ill have to go through the whole procedure again at the US Consulate in Japan..Its just so annoying that we have to pay $1000 and might have to go through all this paperwork and $$$$ again...

All I can do is crossing my fingers...

I think we wont have the 2011 tax return until a few weeks, i guess im just gonna send the package and see, they will ask all the tax returns at the interview no?

[KayDeeCee 4,892]

thank you for your quick answer.

Yes the fellowship is not taxable but we have all the papers showing how much he earns plus our assets should help us.

About us moving to Japan, yes I know about the advance parole. I am also worried about the timeline but since I have no choice than adjust my status...We are going to explain that in the AOS anyways.

I was hoping to have the green card before leaving, in order to have the re entry permit, but if not I guess ill just hope to have advance parole...Otherwise i guess Ill have to go through the whole procedure again at the US Consulate in Japan..Its just so annoying that we have to pay $1000 and might have to go through all this paperwork and $$$$ again...

All I can do is crossing my fingers...

I think we wont have the 2011 tax return until a few weeks, i guess im just gonna send the package and see, they will ask all the tax returns at the interview no?

You need to show the income from the last 3 years taxes on the form, so 2009, 2010 and 2011. You only need to send in the most recent year's tax transcript, which is 2011. He needs to show proof of his income as well, not just his tax transcript. Provide a letter from his employer, and the documents that prove he earns other income that is not taxable that adds up to the total yearly amount you list on the form. Provide recent pay stubs and/or bank statements showing deposits of his other income.

Because you are adjusting from a K-1, you may or may not have an interview. You will need to have your biometrics done. If you have to leave before you receive your green card and get approval for a re-entry permit, you risk abandoning your AOS. If that happens, he will need to file for a spousal visa for you to return to the US with him.

You can always file, and then make an Infopass appointment to request an expedite. They might not say yes, but it is worth a shot.

[grrrrreat 109]

thank you for your quick answer.

Yes the fellowship is not taxable but we have all the papers showing how much he earns plus our assets should help us.

About us moving to Japan, yes I know about the advance parole. I am also worried about the timeline but since I have no choice than adjust my status...We are going to explain that in the AOS anyways.

I was hoping to have the green card before leaving, in order to have the re entry permit, but if not I guess ill just hope to have advance parole...Otherwise i guess Ill have to go through the whole procedure again at the US Consulate in Japan..Its just so annoying that we have to pay $1000 and might have to go through all this paperwork and $$$$ again...

All I can do is crossing my fingers...

I think we wont have the 2011 tax return until a few weeks, i guess im just gonna send the package and see, they will ask all the tax returns at the interview no?

Your other option is to leave the U.S. before the stay on your I-94 expires and then apply for a CR-1 about a year before you're ready to move back from Japan. Remember you can only stay for two years out of the U.S. even with a re-entry permit or you will have to abandon the Green Card.

You should write an explanation of why the fellowship isn't taxable and include documentation of that. Good luck!

Edited April 24, 2012 by grrrrreat

[Lilyena 10]

Your other option is to leave the U.S. before the stay on your I-94 expires and then apply for a CR-1 about a year before you're ready to move back from Japan. Remember you can only stay for two years out of the U.S. even with a re-entry permit or you will have to abandon the Green Card.

You should write an explanation of why the fellowship isn't taxable and include documentation of that. Good luck!

Thank you for your answer. I don't want to leave my husband we ve already been separated so long. We sent the AOS package this morning, explaining for the taxes and giving all the papers showing that he earned above the poverty line and that we didnt plan to go to japan when we started the process. We are crossing our fingers that we will receive the GC on time to apply for re-entry. I can join my husband in Japan later as long as I have the re entry permit but I don't want to leave him one.

And if it doesnt work, well we ll apply for a CR-1 from Japan I guess...

My biggest worry was really that tax return thing...

But one more question: does the CR-1 gives you just a visa and you need to apply for AOS again or does it give you a green card straight away? How much does it cost? I read about it on VJ but it is still not very clear...

[Lilyena 10]

You need to show the income from the last 3 years taxes on the form, so 2009, 2010 and 2011. You only need to send in the most recent year's tax transcript, which is 2011. He needs to show proof of his income as well, not just his tax transcript. Provide a letter from his employer, and the documents that prove he earns other income that is not taxable that adds up to the total yearly amount you list on the form. Provide recent pay stubs and/or bank statements showing deposits of his other income.

Because you are adjusting from a K-1, you may or may not have an interview. You will need to have your biometrics done. If you have to leave before you receive your green card and get approval for a re-entry permit, you risk abandoning your AOS. If that happens, he will need to file for a spousal visa for you to return to the US with him.

You can always file, and then make an Infopass appointment to request an expedite. They might not say yes, but it is worth a shot.

Thank you for taking the time to answer. We just sent everything this morning. We dont have the 2011 tax transcript yet, maybe they will ask for an RFE, but it doesnt worry me, we didnt want to delay the sending of the package. Wait and see

You're right about the risk of me abandoning my status. it worries me, but I didnt know what else we could do. I am just crossing my fingers to have everything on time in order to have the re entry permit. We explained everything in a letter.

Now we 're just crossing the fingers. Thank you all for your help concerning the tax, it helped us a lot. We provided all evidences from his employers and the bank proving my husband earned above the poverty lines, which was not reflected by the tax returns. We also have enough assets should they take the tax return as an income reference; so normally we dont need a co-sponsor.

It is just so complicated and stressing!

Thank you again, Ill let you know on the timeline how it is going.

[grrrrreat 109]

Thank you for your answer. I don't want to leave my husband we ve already been separated so long. We sent the AOS package this morning, explaining for the taxes and giving all the papers showing that he earned above the poverty line and that we didnt plan to go to japan when we started the process. We are crossing our fingers that we will receive the GC on time to apply for re-entry. I can join my husband in Japan later as long as I have the re entry permit but I don't want to leave him one.

And if it doesnt work, well we ll apply for a CR-1 from Japan I guess...

My biggest worry was really that tax return thing...

But one more question: does the CR-1 gives you just a visa and you need to apply for AOS again or does it give you a green card straight away? How much does it cost? I read about it on VJ but it is still not very clear...

You file the I-130 to get a CR-1, and then after it's approved you submit a visa application to the National Visa Center and eventually interview at a consulate. You pay for the fee for the I-130 and then you have to pay a separate immigrant visa fee. You also pay a small affidavit of support fee. I don't know what it adds up to but it's close to $1000. A CR-1 grants a Green Card immediately upon your entry to the U.S. They actually stamp the CR-1 visa which gives you a temporary GC and then they send you a physical one later by mail. You do not have to adjust status with a CR-1.

It seems like you have a reasonable solution, but it's not without risks. If you're willing to stay some time in the U.S. even after your husband moves, until you get a GC, that is probably best. Keep in mind they may require you to interview with your husband for AOS, although it's less likely for K-1 entrants.

One additional concern is about your current K-1 status expiration, on your I-94. When you apply for adjustment of status, your current status is put on hold until the application is decided, so you don't have to worry about overstaying. However, if for some reason you abandon or withdraw your AOS application at a later date, it's conceivable that USCIS could treat the entire time from the expiration of your I-94 until when you leave the U.S. as an overstay. If that overstay were longer than 180 days, you could incur a 3 year bar from reentering the U.S. without a waiver. If that overstay were longer than a year, you could incur a 10 year bar. So just keep that in mind if you are not able to complete the AOS process and get a GC.

If you're planning to be in Japan for two years, that's also cutting it close to the time after which they'll declare your residency abandoned (which is two years with the re-entry permit). Remember that GCs are for people who are resident in the U.S., so they could also ask for proof that you keep a residence here even if you are temporarily in Japan. Also remember that you'll have to remove conditions on your conditional GC after a year and 9 months, and that process may also require your physical presence at least for biometrics.

If for some reason your GC were cancelled, you'd have to start again with the CR-1 process.

[KayDeeCee 4,892]

It seems like you have a reasonable solution, but it's not without risks. If you're willing to stay some time in the U.S. even after your husband moves, until you get a GC, that is probably best. Keep in mind they may require you to interview with your husband for AOS, although it's less likely for K-1 entrants.

This is incorrect. There is no maybe, or it is less likely for a K-1. If you get an interview for AOS, both husband and wife MUST be present. They will only make exceptions for active duty military members that are deployed.

It is possible to not get an interview at all when adjusting from a K-1, but that is more like a random 50/50 shot. Those being transferred to CSC, where you are more likely not to get called for an interview, are the ones that seem to be waiting the longest for approval at the moment.

I still say you should make an Infopass appointment at your local USCIS office and explain your situation, bringing along documents that prove he is moving out of the country for a job, and see if you can get an expedite because of this.

Edited April 26, 2012 by Jay-Kay

[grrrrreat 109]

This is incorrect. There is no maybe, or it is less likely for a K-1. If you get an interview for AOS, both husband and wife MUST be present. They will only make exceptions for active duty military members that are deployed.

It is possible to not get an interview at all when adjusting from a K-1, but that is more like a random 50/50 shot. Those being transferred to CSC, where you are more likely not to get called for an interview, are the ones that seem to be waiting the longest for approval at the moment.

I still say you should make an Infopass appointment at your local USCIS office and explain your situation, bringing along documents that prove he is moving out of the country for a job, and see if you can get an expedite because of this.

We don't disagree. I said "Keep in mind they may require you to interview with your husband for AOS, although it's less likely for K-1 entrants." Less likely referred to the interview, not to the requirement that she bring her husband. Sorry if that was unclear.

Edited April 26, 2012 by grrrrreat

[KayDeeCee 4,892]

We don't disagree. I said "Keep in mind they may require you to interview with your husband for AOS, although it's less likely for K-1 entrants." Less likely referred to the interview, not to the requirement that she bring her husband. Sorry if that was unclear.

I apologize if I interpreted what you wrote incorrectly.

[Lilyena 10]

I still say you should make an Infopass appointment at your local USCIS office and explain your situation, bringing along documents that prove he is moving out of the country for a job, and see if you can get an expedite because of this.

Yes I think tha's what we're gonna do. We 're waiting for NOA1 and case number though to get the infopass. Apparently processing time in San Francisco for I485 is 4 months so if we don't have any RFE we could have the GC on time to apply for re-entry permit; but I know that is only if we 're very lucky....