To file or not to file... That is the question...

[dstrausser83 14]

Ok, my wife's 90 days expire on 2/9/2013. We wanted to file the I-485 during that time to make sure she has NO lapse in status. What happened? Our baby was born pre-mature.

What does that mean? While I'll have her Birth Certificate prior (if they fill it out right, it's been rejected 3 times all ready.... dang hospital needs to learn how to do their job!), I won't have her SSN. Since I won't have her SSN, I can't put it on the document nor can I file taxes for inclusion with the I-864.

What do I do?

1. File as planned. Include birth certificate and a letter stating that due to the baby just being born, the SSN hasn't arrived yet. Explain that is the reason why taxes haven't been filed yet and show all my W-2's and 1099's (approx $40k) for income in 2012 asking for an RFE so that I may submit the SSN and the completed tax return at a later date.

2. Don't file. Let her status expire. File once I get all the documentation together.

Time isn't an issue. She doesn't want to work right away and we have no plans of leaving the country. We have a sick, pre-mature infant to take care of. So if I do number 1 and get an RFE and everything is delayed an extra month, that really isn't too much of an issue to us. It'll give us better peace of mind knowing she was never out of status as we both have very strong views on immigration and doing things legally.

What say you?

[smashrun 10]

First congratulations on the birth of your child

Illegal presence and out of status are two different things. You're not breaking any rules by not filing AOS before I-94 expiration date. Many people wait to file beyond the 90 days simply because AOS is expensive. Sounds like you have a lot on your hands dealing with a sick infant. I would wait until all my documenation was straightened out and THEN worry about submitting AOS paperwork. Just my opinion. Good luck!

[dstrausser83 14]

Thanks. Another reason is, I'm afraid that we won't get the tax credits if her status lapses... lol I forgot that one. Having her legal so that I can claim my full EIC and tax credits for our children is important.

Thanks for your advice.

[Villanelle 4,121]

If you want to make God laugh, tell him about your plans.

Technically, your wife is out of status. However its not a big deal. Any out of status days she accrues will be forgiven once her GC is issued. So relax.

You will also get the tax credits if shes out of status.

If you go with option 1, you dont need a letter explaining why you dont have a SSN for the baby yet. Although you can send a letter explaing why you didnt send the taxes, you cant ask for an RFE. (although its polite and shows a level of awareness on your part to say I know this is missing) You have to submit whats required on the date you file or wait until you have the complete package. So filing today Jan 18 2013 means you need to submit 2012 taxes and current proof of income.

So if you send in the package w/o the taxes they will RFE you.

So its up to you to decide if you want to send in the incomplete package and wait for the RFE and send in the taxes, or wait and send in the complete package.

[KayDeeCee 4,892]

Ok, my wife's 90 days expire on 2/9/2013. We wanted to file the I-485 during that time to make sure she has NO lapse in status. What happened? Our baby was born pre-mature.

What does that mean? While I'll have her Birth Certificate prior (if they fill it out right, it's been rejected 3 times all ready.... dang hospital needs to learn how to do their job!), I won't have her SSN. Since I won't have her SSN, I can't put it on the document nor can I file taxes for inclusion with the I-864.

What do I do?

1. File as planned. Include birth certificate and a letter stating that due to the baby just being born, the SSN hasn't arrived yet. Explain that is the reason why taxes haven't been filed yet and show all my W-2's and 1099's (approx $40k) for income in 2012 asking for an RFE so that I may submit the SSN and the completed tax return at a later date.

2. Don't file. Let her status expire. File once I get all the documentation together.

Time isn't an issue. She doesn't want to work right away and we have no plans of leaving the country. We have a sick, pre-mature infant to take care of. So if I do number 1 and get an RFE and everything is delayed an extra month, that really isn't too much of an issue to us. It'll give us better peace of mind knowing she was never out of status as we both have very strong views on immigration and doing things legally.

What say you?

If your 2011 taxes show enough income, then file now using your 2011 tax transcript. 2012 taxes will not be required until after the tax deadline in April. Filing now means she will get her EAD/AP in 2-3 months and with the EAD she can get her SSN. OR, if at all possible, take her to the SSA first thing on Monday to get her SSN. She only needs to have 2 weeks left on her I-94 to be able to use it to get the SSN. Otherwise, you must wait until she gets the EAD to get an SSN.

You will not be able to let the I-94 expire and provide her SSN later to file 2012 taxes because she will not be able to get the SSN without the unexpired I-94(at least 2 weeks left on it) or the EAD or green card.

[dstrausser83 14]

She has her ssn for a while now. EAD isnt important as shell be with the baby (Liv).

[KayDeeCee 4,892]

She has her ssn for a while now. EAD isnt important as shell be with the baby (Liv).

You can file now with the 2011 taxes or wait till you file the 2012. EAD and AP are free to file for with the I-485 and will give her an ID, so why not file for them anyway? She is not planning on working or leaving, but sometimes emergencies arise and people wish they had applied for the AP with the rest of the AOS paperwork.

[dstrausser83 14]

AGI from 2011 is only $22k, not enough for 4/5 people, although I will add since it was before she was pregnant, it would've worked. I was unemployed for 1/2 of 2011. I need 2012's income.

She is applying for the AP and EAD, I was just saying that it's not that big of an importance since she has the SSN and isn't looking to work and really can't travel because of our baby who we just found out will be in the hospital for another few months

[KayDeeCee 4,892]

I wish you and your family all the best. Hopefully they will get her birth certificate sorted out and you can get her SSN soon, get the taxes done, file the AOS and bring home your new baby.

Oh, and you don't need adjusted gross income. You need the total income from line 22 of the 1040.

Edited January 19, 2013 by Jay-Kay

[sara80 17]

AGI from 2011 is only $22k, not enough for 4/5 people, although I will add since it was before she was pregnant, it would've worked. I was unemployed for 1/2 of 2011. I need 2012's income.

She is applying for the AP and EAD, I was just saying that it's not that big of an importance since she has the SSN and isn't looking to work and really can't travel because of our baby who we just found out will be in the hospital for another few months

I believe that by submitting your 2011 taxes and stating you 2012 current income on the I-864, which you say it's over the minimum for your household, should be enough. Obviously you need to include 6month worth of paystubs, and a letter from your employer stating a bunch of things, like how much you earn yearly, what type of contract you have, etc.

Edited January 19, 2013 by sara80

[KayDeeCee 4,892]

I believe that by submitting your 2011 taxes and stating you 2012 current income on the I-864, which you say it's over the minimum for your household, should be enough. Obviously you need to include 6month worth of paystubs, and a letter from your employer stating a bunch of things, like how much you earn yearly, what type of contract you have, etc.

That works fine for those that have an employer. If you are self-employed, you need the income from line 22 of your most recent 1040.