Confused, but should I be worried (Request for Initial Evidence)

[BritInMA 15]

Hello!

BACKGROUND:

I submitted all my documents to the Chicago dropbox on Jan 13.

Got a text receipt for all documents on Jan 26.

I have my biometrics appointment in Boston this Friday.

I own a business back in the UK, and though I do not work in that business, it provides me with a very steady income well above the poverty line, and my wife (a USC) does not work, because she does not need to! So on form I-864 we used my income, and included additional documentation to say that I owned a business in the UK, and that is where my income comes from; Stated how much the income was, both in GBP and USD, and submitted paperwork from the company stating that my income is guaranteed for the foreseeable future.

Today we received a "Request for Initial Evidence (I-485)"

Which starts

"This office is unable to complete the processing of your Application to Register Permanent Residence or Adjust Status, (Form I-485) without initial information. Submit ALL of the information requested below at one time. Failure to do so will result in denial........."

It then requests TWO pieces of information:

[X] 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.

The petitioner/sponsor's household member on Form I-864, Affadavit of Support or Form I-864A, Contract Between Sponsor and Household Member, must submit evidence that they were authorized to work in the United States.

Examples include the following:

*A copy of Form I-94, Arrival/Departure Record, showing a non-immigrant classification that allows the intending immigrant/household member to work lawfully in the United States. Classifications include: {SNIPPED}.

*A copy of a valid Employment Authorization Document issued by U.S. Citizenship & Immigration Service (USCIS)

*A copy of form I-94, Arrival/Departure Record, with "Employment Authorized" or similar annotation by port-of-entry personnel.

[X] The petitioner/sponsor's household member on Form I-864 or Form I-864A must submit a complete Federal income tax return submitted to the Internal Revenue Service (IRS) for the most recent tax year.

If you were not required to file a federal income tax return under U.S tax law, attach a written explanation of why you are not required to file. {SNIPPED}

My income from the UK is completely legal, but was not earned whilst in the US. Nor am I authorized to work in the US, and indeed I have not worked in the US!

I have applied for Work Authorization, but as yet have heard nothing, and presumably it's now on hold pending this.

I have paid appropriate taxes in the UK, and I understand that once I'm a resident I will also be paying tax on my worldwide income to the IRS.

I do not know how to respond, and at the moment I do not fully understand the implications; Am I looking at a definite denial?

I have re-read the instructions for form I-864, and on page 8 (of 13), Section 4:

4. What if I cannot Meet the Income Requirements?

If your income alone is not sufficient to meet the requirements for your household size, the intending immigrant will be ineligible for an immigrant visa or adjustment of status, unless the requirement can be met using any combination of the following:

{SNIP}

b. Income from the intending immigrant, if that income will continue from the same source after immigration, and if the intending immigrant is currently living in your residence. If the intending immigrant is your spouse, his or her income can be counted regardless of current residence, but it must continue from the same source after he or she becomes a lawful permanent resident;

{SNIP}

What can I prove?

Well, I've been here since August 19, 2013, with just a few weeks here and there in the UK (yes, I am one of the lucky ones to get through every time!), and my wife and I have never claimed social benefits; We pay our relevant bills both here and in the UK, have 2 cars here, pay our rent, yadda yadda - we are just a normal couple; I transfer my UK money to us every week; I have a bank account here in the US, and can prove that every single week Ive had $x, which is substantially more than the 125% of poverty.

I can prove I own the company in the UK.

But, according to this letter, I must have earned the money IN the US, LEGALLY. Even though as a visitor, I am not permitted to work.

I am really confused.....

If anyone has had a similar situation, I'd love to hear from you directly, but any & all thoughts are very welcome!

Thanks for listening

PS: Does my timeline so far seem fast? It's only been a few weeks since I sent our initial application in.....

[Leo7777 243]

Two points here:

1) Apparently they did not pay any attention at all to your statement that the income was from a company in UK.

2) Possibly income cannot be counted that is earned outside USA.

[BritInMA 15]

I do hope point 2 isnt right, because if that's the case, I'm going to be denied and have to leave my wife & step-daughters!!!!

eeeeeeeeek!

The thing I find confusing and a bit amusing is... I'm adjusting from visitor status, with which I cannot possibly work....

[kzielu 1,149]

I do hope point 2 isnt right, because if that's the case, I'm going to be denied and have to leave my wife & step-daughters!!!!

eeeeeeeeek!

The thing I find confusing and a bit amusing is... I'm adjusting from visitor status, with which I cannot possibly work....

Nothing amusing about it - first it may be considered fraud, second - petitioner is supposed to be able to support you or find a co-sponsor. No idea why you find that amusing...

[BritInMA 15]

My amusement was not in any way related to breaking the law - quite the contrary - what I meant was, they are stating that the intending immigrants income must be from the USA with a valid work permit, but as I am on a B-2 visa, I am not allowed to work.

I meant no disrespect, and apologize for my misspoken words.

As I understand from the instructions for I-864, I am able to use my income providing such income continues after my application is approved, which it will. It just happens to come from a company not within the USA.

[Hypnos 6,576]

Perhaps your wife has assets that can be used to fulfill the I-864 requirements? She would need to show three times the difference in the shortfall between your household size and her income.

[Nich-Nick 3,354]

Can you possibly find a joint sponsor? You really don't want to mess this up since you get no appeal because you entered on VWP. Do you have overstay where you could be banned from returning for a long time if this AOS goes pear shaped?

There's a lot of questions and maybe over the head of the contractor who opened your file and has a checklist of what he is supposed to find included. But how can you make sure anything you send back will be accepted. That's why I think your safest option is a joint sponsor.

[BritInMA 15]

I didn't enter via the vwp thankfully. I'm here on a B2 visa. My current stay should have ended February 3 2015 but having gotten married to my long term fiancé (we didn't pLan it but we got pregnant!) we decided to go through aos. All we have is my income and assets and now im starting to worry. The I864 instructions clearly reference overseas income so I assumed this was doable. Was I wrong? Have I wasted all the money? Can I appeal if it's declined? Will I get a ban for the overstay if I'm declined?

I'm not sure that a Co sponsor is an option......

Do I only get this one chance to respond or might they ask for further clarification if I don't answer to their full satisfaction?

[Hypnos 6,576]

You are wrong. Only income legally earned in the US can be counted towards an I-864. This is clearly stated in the I-864 instructions.

You will need to either:

(i) obtain a joint sponsor.

(ii) qualify through your own assets and / or assets of your spouse.

(iii) make plans to leave the US, since your I-485 cannot be approved without a viable I-864.

To appeal a denial successfully you would need to be able to demonstrate that USCIS wrongly denied you, which would not be the case here.

You usually only get one bite at the cherry with an RFE. If you fail to respond to the RFE with the requested documentation, or fail to respond at all, then your I-485 will be denied and you would likely be placed into removal proceedings shortly afterwards. Provided you have less than six months of overstay then you would not incur a bar, although it's possible you may not be able to use the VWP again.

Edited February 18, 2015 by Hypnos

[BritInMA 15]

You are wrong. Only income legally earned in the US can be counted towards an I-864. This is clearly stated in the I-864 instructions.

You will need to either:

(i) obtain a joint sponsor.

(ii) qualify through your own assets and / or assets of your spouse.

(iii) make plans to leave the US, since your I-485 cannot be approved without a viable I-864.

To appeal a denial successfully you would need to be able to demonstrate that USCIS wrongly denied you, which would not be the case here.

You usually only get one bite at the cherry with an RFE. If you fail to respond to the RFE with the requested documentation, or fail to respond at all, then your I-485 will be denied and you would likely be placed into removal proceedings shortly afterwards. Provided you have less than six months of overstay then you would not incur a bar, although it's possible you may not be able to use the VWP again.

Hi Hypnos, thank you for your response.

Can you please point out exactly where it clearly states that on the I-864 instructions?

I may be completely wrong, but I am reading the opposite:

Page 9, Section 6 "Can the intending Immigrant help me meet the income requirements"

...If the intending immigrant is your spouse, his or her income can be included if it will continue from the same source after he or she obtains lawful permanent resident status....

My income will continue long after any approval I get to become an LPR. I can prove that income with a letter from my company, payslips, bank statements BOTH in the UK and the USA, and receipts for the international transfer of said funds.

Page 6, Section 7 "Item Number 14. Federal Income Tax Information"

Paragraph 3:

Do not submit any tax returns that you filed with any foreign government unless you claim that you were not required to file a federal tax return with the United States government and you wish to rely on the foreign return solely to establish the amount of your income that is not subject to tax in the United States

I can provide the UK equivalent (a P-60) which shows my income well above the 125% poverty line. I can also provide payslips, etc.

I am here on a B-2 visa, and not the VWP. I hope this makes a bit of a difference.

Again, thank you for your responses - I do hope you can let me know where it states my UK income is inadmissible, so that I can plan accordingly.

[Hypnos 6,576]

Hm, my apologies but it doesn't seem to be explicitly stated that your foreign income does not count. However, that is how USCIS reads it I believe, hence your RFE.

As I say, you will likely need to qualify through your own assets (which can be used - this is explicitly stated, as I just read it in there) or your spouse, or obtain a joint sponsor.

[Nich-Nick 3,354]

I think you need to clearly establish that your UK income is lawful and that it will continue.

Can you establish that you do not work for the business neither in the US nor the UK, but derive an income as the owner of the business which operates solely in the UK. You are a citizen of the United Kingdom and can legally own a business interest there.

Cite IRS excerpts from Publication 519 saying you do not have to pay US taxes on the money because it is not US based income and you are not a resident alien. You will pay US taxes when you are granted resident alien status per US/UK treaty. Look up details and check the facts because I haven't.

Cite the instructions from the I-864 that makes you think the intending immigrant can include income that will continue in the US. Make a list of all documents you are sending to support your claims.

Then ask for an opinion from a USCIS adjudicator as to if your understanding of the I-864 is correct. And if not would they please inform you it is disallowed and that you require a joint sponsor.

I think it could be they didn't understand what you sent because it is not the norm. And you do need to outline the legality in greater detail. Connect the dots for them. Perhaps if you ask for clarification on the income question they will answer rather than deny you without a response.

Just throwing an idea out there. I don't know the answer.

[h13rma 35]

We did manage to get USCIS to accept that my income was both legal and acceptable,

i was working for a European Oil company in africa at the time but ti was not easy, and we should probably not have bothered as my wife income was sufficient. But it is doable just a lot of hassle.

[Hypnos 6,576]

Very interesting.

I can't imagine it comes up very often.

[BritInMA 15]

Well... by way of an update.... (and i've already posted some of this in another thread)

Long story short....

I did lots of reading, and reviewing, and I decided that by the letter of the law, my income should be suitable for immigration.

What I did was send them a letter of response, keeping very much to the point, no emotions, no assumptions, and quoted as much as possible from USCIS own website and forms & instructions.

I sent them 12 months of statements from our USA bank account, 12 months from our UK bank, 12 months from our UK business, my UK tax certificate, copies of the last 6 months worth of UK-USA money transfers.

All in all it was around 120-150 pages of response. As I put it in the post, I wondered if that much of a response was positive or negative.

I responded around 20 days before the 87 day expiration. I left it to the last possible moment in order to catch as much information as possible.

I posted my response around April 17, and the status update said it was received April 24.

Yesterday, May 13, I saw that my EAD was approved!!

Today, May 14, I saw that my I-485 has been updated, and they are preparing my interview!

It seems that my thorough response, which included such phrases as "I understand this is a very unusual situation, but please read in full....." and 120+ pages of financial information may have been appreciated.

Of course, just because my EAD is in the mail, and my interview is upcoming, it doesn't mean my application is approved and final - I still have to have my interview... But I do feel that I have finally passed this hurdle - and it seemed to be a mountain of a hurdle!!!!

I will update as things progress...... Keep your fingers crossed

Thanks for all your comments, and best wishes to you all.