Can K-1 visa holder's income be enough?

[LouisePaul 0]

Hello everyone!

I had a question about the AOS process, we're getting things all ready with it but heres a problem. When my fiance (now husband) came out to the states I had a job I loved, the only problem was we needed to move a few hours away so that we could rent our own place because at the time I was living with family, now that we've moved up here I've been looking for another job and have had an interview that seem keen but their hiring process is a long one (they said so and my last job was very very similar and it too was a long one, about a month). I'm sure you can see the problem, I don't have a job atm so I can't show my income for AOS yet, which means we can't file for AOS yet. My husband came to the US on December 7th so time is really getting on - I don't have anyone I could ask to co sponsor us so that's that's not an option. I could get the job in time (I'm also looking for other ones too with hopefully sooner start dates) but say I got the job and had 2 weeks before we filed for aos and only had 1 pay stub, is that enough along with a letter form my employer to prove I have a job with income?

On the bright side! My husband is a self employed game developer for android and iphone and has an income that continues without him working on anything or touching anything, and even beter it's above the 125% poverty limit. So my main question is could he use just his income for AOS if I don't get an income in time? Or do I need to have SOME kind of income to add to?

Thank you so much for your help!

Louise

[VanessaTony 3,567]

As long as the income is continuing, and legal, then he can self-sponsor yes. You will still need to complete an I-864 and he can do an I-864A to combine his income with yours.

In the event they RFE you should have back-up, whether it's a friend or family member to fill in the form.

[Villanelle 4,121]

Actually her husband would be on the same 864 as her. He doesnt fill out the 864a.

Shes going to fill out one 864 form, on it she would list her income and assets and her husbands income and assets (the only time the 864a is needed with the USCs 864 is when theyre using another family members income- the intending immigrant does not have to fill out the 864A (line24e) or they have dependents.)

But in order for her husbands income to be counted it has to be US source income. Im not sure how this is going to play out... He doesnt have work auth yet. He can continue to run his business from the US because his business is based overseas. Hes earning overseas money. Hes working remotely. Hes here- his business is there. If he claims these are US based earnings- well then wait a minute, he cant have US based earnings, hes not authorized to earn money in the US, or operate a company in the US with out an EAD card. BUT unauth work is forgiven when AOS through marriage.

So in order for this to work, your husband is going to need to show these are now US based earnings. As stupid as it sounds to show hes working in the US w/o his EAD, its the only way his earnings are going to count. Hes got to say his company is now in the US.

[LouisePaul 0]

Actually her husband would be on the same 864 as her. He doesnt fill out the 864a.

Shes going to fill out one 864 form, on it she would list her income and assets and her husbands income and assets (the only time the 864a is needed with the USCs 864 is when theyre using another family members income- the intending immigrant does not have to fill out the 864A (line24e) or they have dependents.)

But in order for her husbands income to be counted it has to be US source income. Im not sure how this is going to play out... He doesnt have work auth yet. He can continue to run his business from the US because his business is based overseas. Hes earning overseas money. Hes working remotely. Hes here- his business is there. If he claims these are US based earnings- well then wait a minute, he cant have US based earnings, hes not authorized to earn money in the US, or operate a company in the US with out an EAD card. BUT unauth work is forgiven when AOS through marriage.

So in order for this to work, your husband is going to need to show these are now US based earnings. As stupid as it sounds to show hes working in the US w/o his EAD, its the only way his earnings are going to count. Hes got to say his company is now in the US.

You make a lot of good points. The thing that makes me wonder is since his company is with apple and android and he sells apps all over the world like every other developer he is technically getting money from the US via people form the us buying his product - hes still earning money but it all goes to this UK bank account and we will be moving his company over when he gets his work aut. - and since he doesn't have that yet since hes come to the US and a little bit before he has not worked on his business at all so that he doesn't get in trouble.

the thing that scares the hell out of us is that he'll have to go home because I don't have an income (YET still fingers crossed) or anyone that could help us out with a co-sponsor - and it sucks because like I said his income is above the right ammount - we really don't know what to do about this because even when I get this job or any other I won't be earning enough we always thought he could add his income because we thought his income counted - Kinda panicing now then lol heh

What should we do? Would his income not count then? Would he have to go back to england?

Also when he left the UK he contacted the tax people (dunno the name) there and they said that when he comes over to call up the IRS and post date so they know when to stop charing him taxes in the UK and the US will know when to start charing him taxes - also side note his business isn't incorporated hes self employed as a sole trader or self proprietor - so does it still matter where his business is if its essentially him?

Edited January 31, 2013 by LouisePaul

[LouisePaul 0]

When you read the instructions it doesn't say about US earnings it just says that if it will continue form the same source when hes adjusted which is will - from his business

I really wish I could get some more input on this

[Harpa Timsah 13,258]

I also think his earnings will not count because they are non-US funds and he does not have an EAD to work in the US anyway.

I seem to recall a similar situation where the person got a RFE to prove they were working legally in the US, which they couldn't provide.

I'd work on finding a co-sponsor.

[JoannaV 173]

I'd think it should work because he is not actually working. Although having said that, is it possible to prove that his income will continue steadily? What if everyone stops buying his apps?

If you do get a new job then that will be sufficient. A letter from your employer stating your income and your first pay stubs.

[LouisePaul 0]

I'd think it should work because he is not actually working. Although having said that, is it possible to prove that his income will continue steadily? What if everyone stops buying his apps?

If you do get a new job then that will be sufficient. A letter from your employer stating your income and your first pay stubs.

I see what your saying but you can say that with any job, how do you know the person won't be laid off? He has bank statments of steady income because the amount he makes every month is generally the same. I still want to get a job and am looking for one but I know any job I get won't be enough alone.

Also he did self sponsor from the UK to the US to get the visa based on his continuing income, which I know is only supposed to support you for the 3 months your visa lasts whilst your here but still I guess it's a little track record with his income being enough/acceptable, obv it's different because they were looking for ammount of money in savings too but they weren't like oh no this business of yours is no good to do this this way.

[sara80 17]

I cannot advise you on the self-sponsoring question but I wanted to say that he doesn't need to go back to the UK when the I-94 expires, which is supposed to be sometime at the very beginning of march. Simply he will be starting accumulating unlawful stay, and you shouldn't worry about it too much.. he won't be able to work nor re-enter the country (so he shouldn't leave), but as soon as you have a job then he can just file for AOS. You did get married in within 90 days so that's all it matters.

Of course I understand that he would like to get the EAD asap, but if you can't find a co-sponsor and you are hopeful you'll get a job soon then just wait...

[Villanelle 4,121]

They dont know if the person is going to be laid off. Thats why they look at your past returns. The past is an indication of the future.

They base whether or not to approve your 864 on whether or not they believe your income is sufficient for the current year and if it is sustainable. Its a judgement call on their part on whether or not its sustainable.

How do they determine sustainability? 'Your income shall be given the greatest evidentiary weight; any tax return and other information relating to the sponsor's financial history will serve as evidence tending to show whether the sponsor is likely to be able to maintain his or her income in the future. If the projected household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status meets the applicable income threshold, the affidavit of support may be held to be insufficient on the basis of the household income but only if, on the basis of specific facts, including a material change in employment or income history of the sponsor or other relevant facts, it is reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligations.'

(I kind of snipped out a few words like co-sponsor and other aliens sponsponsored, just to condense it, so its not an exact quote)

Theyre going to look at your history, how long you held the job, 'other relevant facts' like the type of job, material change in employment- is this a new job? is it established? The 864 can potentially last a long time.

For self employed people its a little harder because there is no company, its all you. They usually like to see one year of the business being operational and profiting above the poverty guidelines- proved by having a US tax return showing a schedule C.

You seem like you may fall into one of two possible scenarios. The first-

They can count income from a foreign source if they can show the income will remain from the foreign source. ( I really dont know how this would work though. I know if I had a job where I was working at home online for a company based overseas and I was paid 35k for it, and I was paid on 1099misc and I filed a sched C tax form as self employed, my income would count. I would be a self-employed USC. My earnings would be US based earnings. It wouldnt make them foreign earnings because they came from overseas anymore, once I declared them on my taxes in the US, they are now US earnings.- thats not what you would be doing. You would be continuing to operate the business as a UK business, continuing to pay taxes in the UK and simply withdrawing the money from the UK and spending it in the US. Do you see the difference?)

So you could leave the company in the UK and say we have foreign source income that will remain a source of income for us to be able to access. Will it be approved? I do not know.

Your second choice would be to convert the business to a US business. This would involve saying the date he arrived, the business arrived. He began working that date (yes w/o auth) His business is now taxable in the US since that date. (im kind of looking at your timeline and thinking since he came in Dec maybe you want to do this effective Jan 2013 just because of the tax calendar (?) otherwise youd have one month of 2012 taxes and that would be messy) So his business became a US business Jan 1 2013. It has a strong history of being a UK business for a year prior proven by tax history in the UK and profit statements. No reason to believe anything will change by it being a US business now. The income is US income. The only snag is hes working w/o auth, it will be forgiven but like Harpa said above (which I had no idea about) someone was RFEd for proof they were working legally. Youre asking them to count money hes earning w/o work auth. Most people are unable to get jobs and earn money w/o work auth as companies will not hire them. If youre self employed, you basically hire yourself.

I really really do not know much about the first scenario, but from my understanding of it, its not going to be approved. If you leave the company in the UK and pay UK taxes on it and not US taxes and its not US source income- then it doesnt exists in the US. It only exists here cause youre spending it here. Its not going to be reflected in your adjusted gross income on your US tax return. You as a USC would probably be eligible for government aid as your adjusted gross income is very low and subsequently not be eligible to sign an 864 to support an alien. My understanding of how it works is that youre going to need your joint US tax return for 2013 to show over 125% on the adjusted gross income line. Having your husbands company in the UK is not going to make that happen. (Im definitely NOT saying youre going to need your 2013 taxes- theyre not going to be due until apr 2014 (!) But you get what Im saying right? what you earn and how you earn it in 2013 will be reported on your taxes at the end of the year. So whats your return going to look like for 2013? whats the adjusted gross income going to be for 2013? Thats how youll know if you qualify.

[LouisePaul 0]

They dont know if the person is going to be laid off. Thats why they look at your past returns. The past is an indication of the future.

They base whether or not to approve your 864 on whether or not they believe your income is sufficient for the current year and if it is sustainable. Its a judgement call on their part on whether or not its sustainable.

How do they determine sustainability? 'Your income shall be given the greatest evidentiary weight; any tax return and other information relating to the sponsor's financial history will serve as evidence tending to show whether the sponsor is likely to be able to maintain his or her income in the future. If the projected household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status meets the applicable income threshold, the affidavit of support may be held to be insufficient on the basis of the household income but only if, on the basis of specific facts, including a material change in employment or income history of the sponsor or other relevant facts, it is reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligations.'

(I kind of snipped out a few words like co-sponsor and other aliens sponsponsored, just to condense it, so its not an exact quote)

Theyre going to look at your history, how long you held the job, 'other relevant facts' like the type of job, material change in employment- is this a new job? is it established? The 864 can potentially last a long time.

For self employed people its a little harder because there is no company, its all you. They usually like to see one year of the business being operational and profiting above the poverty guidelines- proved by having a US tax return showing a schedule C.

You seem like you may fall into one of two possible scenarios. The first-

They can count income from a foreign source if they can show the income will remain from the foreign source. ( I really dont know how this would work though. I know if I had a job where I was working at home online for a company based overseas and I was paid 35k for it, and I was paid on 1099misc and I filed a sched C tax form as self employed, my income would count. I would be a self-employed USC. My earnings would be US based earnings. It wouldnt make them foreign earnings because they came from overseas anymore, once I declared them on my taxes in the US, they are now US earnings.- thats not what you would be doing. You would be continuing to operate the business as a UK business, continuing to pay taxes in the UK and simply withdrawing the money from the UK and spending it in the US. Do you see the difference?)

So you could leave the company in the UK and say we have foreign source income that will remain a source of income for us to be able to access. Will it be approved? I do not know.

Your second choice would be to convert the business to a US business. This would involve saying the date he arrived, the business arrived. He began working that date (yes w/o auth) His business is now taxable in the US since that date. (im kind of looking at your timeline and thinking since he came in Dec maybe you want to do this effective Jan 2013 just because of the tax calendar (?) otherwise youd have one month of 2012 taxes and that would be messy) So his business became a US business Jan 1 2013. It has a strong history of being a UK business for a year prior proven by tax history in the UK and profit statements. No reason to believe anything will change by it being a US business now. The income is US income. The only snag is hes working w/o auth, it will be forgiven but like Harpa said above (which I had no idea about) someone was RFEd for proof they were working legally. Youre asking them to count money hes earning w/o work auth. Most people are unable to get jobs and earn money w/o work auth as companies will not hire them. If youre self employed, you basically hire yourself.

I really really do not know much about the first scenario, but from my understanding of it, its not going to be approved. If you leave the company in the UK and pay UK taxes on it and not US taxes and its not US source income- then it doesnt exists in the US. It only exists here cause youre spending it here. Its not going to be reflected in your adjusted gross income on your US tax return. You as a USC would probably be eligible for government aid as your adjusted gross income is very low and subsequently not be eligible to sign an 864 to support an alien. My understanding of how it works is that youre going to need your joint US tax return for 2013 to show over 125% on the adjusted gross income line. Having your husbands company in the UK is not going to make that happen. (Im definitely NOT saying youre going to need your 2013 taxes- theyre not going to be due until apr 2014 (!) But you get what Im saying right? what you earn and how you earn it in 2013 will be reported on your taxes at the end of the year. So whats your return going to look like for 2013? whats the adjusted gross income going to be for 2013? Thats how youll know if you qualify.

Would we still have enough time to find a co sponsor? / get all the paperwork done in time for us to file for it? It doens't look like this will be a good option for us and all we can do is get a co sponsor somehow. Because even if I did get a job it wouldn't be enough for 125% and if I can't use/add his income we're screwed really. He just can't go home we need this to work.

[KayDeeCee 4,892]

Would we still have enough time to find a co sponsor? / get all the paperwork done in time for us to file for it? It doens't look like this will be a good option for us and all we can do is get a co sponsor somehow. Because even if I did get a job it wouldn't be enough for 125% and if I can't use/add his income we're screwed really. He just can't go home we need this to work.

There is no deadline to file for AOS. You have time to find a joint sponsor. He won't be going home. He cannot leave the US and re-enter without having AP or his green card. If he was to leave without AP or his green card, then you would have to start over with a spousal visa in order to get him back in the US. Entering on the K-1 and getting married within 90 days is what makes him eligible to file for AOS. You do not have to file for AOS within those 90 days.

[LouisePaul 0]

So our only options are:

A. Somehow find a co sponsor

B. Hope that they'll count money from the UK even though they only count US money

or

C. Try and get his business over to the US but also violate the work aut. in the process

How do you ask someone for so much though? I realize they don't have to pay it but to ask for information like what their SSN is and how much they make a year sounds like a lot to ask of someone. I know you can have more than one sponsor but what if we can only get one and they don't make enough?