Mistake on U.S tax return 1040

[CONFRANCHI 2]

Hi All,

My fiance and I are in a rare situation and I'm wondering if anyone has had a similar experience. My interview at the London Embassy is scheduled for next Thursday (May 8). I am Australian and the beneficiary and he is a USC and the petitioner. We are both living in the UK on a Tier 2 Work/Partner Visa.

As many others seem to have done, my USC fiance didn't realise he was supposed to file US tax returns when he was earning money and paying taxes abroad. We have since realised (only this week) that he was supposed to file even though he is abroad. That's fine, his income is less than the amount that would incur owing the IRS any money so that is not the problem.

He went ahead and filled out the 1040 return online last night and I now have his US tax return to present at the interview.

THE PROBLEM: For his income, he put it as $0 as he thought it referred to US income. He has filled out Form 2555 (the Foreign Earned Income Exclusion) declaring his full income earned abroad. This needs to be posted so we will photocopy the pages from that form and I will take them with me to the interview.

I believe he needs to now fill out Form 1040x to amend his tax return to show his foreign income but this cannot be submitted online, only by post. So we will photocopy the pages from that form also to show the consulate official.

So in summary, I will be presenting to the US consulate officer (along with all the other necessary docs required for the I-134)

- His US tax return showing no income.

- Photocopy of Form 1040x (showing amendment)

- Photocopy of Form 2555 (FEIE)

- His most recent Australian and UK tax returns

Question: Will the consulate accept the above as meeting the requirements for his US Tax Return?

Thanks for reading my long-winded question!

[aaron2020 11,651]

He needs to have tax returns for the last 3 years.

Do you have a Joint Sponsor?

[CONFRANCHI 2]

He needs to have tax returns for the last 3 years.

Do you have a Joint Sponsor?

Sorry I didn't specify that this is for the K1 and not the AOS so he doesn't need 3 years, only the most recent tax year.

We don't have a joint sponsor, only my fiance.

Edited May 2, 2014 by CONFRANCHI

[Nich-Nick 3,354]

London does not require a tax return as proof of income for a K1 if there is another proof. But if he earns no US money, how is he able to sponsor you? Does he have a current source of income that will continue back in the US?

[CONFRANCHI 2]

London does not require a tax return as proof of income for a K1 if there is another proof. But if he earns no US money, how is he able to sponsor you? Does he have a current source of income that will continue back in the US?

He will be working for the same company from the U.S but he will be working from home and getting paid USD instead of GBP.

He is a software developer and has been working for this UK based company since we were living in Australia four years ago. He was getting paid AUD when we lived in Australia. Since then we moved to the UK and in a few weeks we plan to move to the U.S where he will continue to work for this UK based company but he will be getting paid USD and paying U.S taxes.

Nich-Nick, do you think it would be wise to get a letter from his employer (as well as the standard employment letter) stating that he will continue to work for them as usual from the U.S and that they will be paying him in USD etc?

[Nich-Nick 3,354]

He will be working for the same company from the U.S but he will be working from home and getting paid USD instead of GBP.

He is a software developer and has been working for this UK based company since we were living in Australia four years ago. He was getting paid AUD when we lived in Australia. Since then we moved to the UK and in a few weeks we plan to move to the U.S where he will continue to work for this UK based company but he will be getting paid USD and paying U.S taxes.

Nich-Nick, do you think it would be wise to get a letter from his employer (as well as the standard employment letter) stating that he will continue to work for them as usual from the U.S and that they will be paying him in USD etc?

A letter stating his salary and that it will continue in the US and how it will be paid to him should be enough for London to easily approve.

Moving on to after marriage...

Get the tax return sorted for adjustment of status affidavit of support I-864. It does require the 2013 tax return as well as numbers off of 2012 and 2011. He will want to add another employment letter to supplement that new affidavit of support and maybe some US pay stubs if he has some by the time you file AOS.

On the tax return, his UK income (converted to USD) will be on line 7. That's where worldwide income is reported. Also any interest earned anywhere is reported on the interest line.

Form 2555 or 2555EZ is filled in to determine his foreign income exclusion, which is probably his entire salary. That exclusion goes on the 1040 on line 21 (Other income) as a negative number. So if he earned $40,000, line 7 says $40,000 and line 21 says -40,000. That will likely make his line 22 (Total Income) zero or close to it depending if he earned any other kind of money from investments. Because USCIS uses Line 22 (Total Income) when looking at your AOS support, his employment letter for that will be important to prove income not reflected on the tax return. That will be fine too. They don't throw you out if the tax return looks inadequate. They consider other proofs of his current income as reported by an employer or pay stubs.

[CONFRANCHI 2]

A letter stating his salary and that it will continue in the US and how it will be paid to him should be enough for London to easily approve.

Moving on to after marriage...

Get the tax return sorted for adjustment of status affidavit of support I-864. It does require the 2013 tax return as well as numbers off of 2012 and 2011. He will want to add another employment letter to supplement that new affidavit of support and maybe some US pay stubs if he has some by the time you file AOS.

On the tax return, his UK income (converted to USD) will be on line 7. That's where worldwide income is reported. Also any interest earned anywhere is reported on the interest line.

Form 2555 or 2555EZ is filled in to determine his foreign income exclusion, which is probably his entire salary. That exclusion goes on the 1040 on line 21 (Other income) as a negative number. So if he earned $40,000, line 7 says $40,000 and line 21 says -40,000. That will likely make his line 22 (Total Income) zero or close to it depending if he earned any other kind of money from investments. Because USCIS uses Line 22 (Total Income) when looking at your AOS support, his employment letter for that will be important to prove income not reflected on the tax return. That will be fine too. They don't throw you out if the tax return looks inadequate. They consider other proofs of his current income as reported by an employer or pay stubs.

Thank you so much Nich-Nick, that is the exact response i was hoping for. We do have a lot of evidence to prove his ongoing income, I was just worried that if the tax return stated zero they would request that we wait until we received a response from the IRS regarding the amended 1040.

Thank you also for the tips for amending the 1040.

I'll let you know how the interview goes next week. At least you have allowed me to breathe easier in the days leading up to the interview.