I-864

[GabachaYucateca 0]

I remember that this question was covered, but I can't find the post.

I see that the I864 has a box to check saying, "I filed taxes for the last three years, but am only including my tax return from the most current year."

I only filed this year and last because the year before that I was living in Mexico and my income didn't require me to file. I don't have any record of this though. Do I leave that box unchecked?

My mother will be the co-sponsor. It would be much easier if she were to just submit a copy of her return rather than getting it from the IRS. They ask for the W2s and 1099s if this is submitted, but she's retired.

[CutienPurg 0]

this explains it better than I can......

http://www.nilc.org/immlawpolicy/aosupp/aosupp021.htm

New rule

One of the most significant changes with the final rule is the emphasis now placed on current income versus that reported on prior tax returns. The step-by-step instructions to the I-864 explain that the sponsor is to enter his or her "current individual earned or retirement annual income." In most cases, this will be "expected income for the current year." If the sponsor will be relying on the income of the intending immigrant or other household members, it is their current income that will be listed on the I-864 and I-864A. The final rule stresses that it is this "reasonably expected household income" that shall be given the "greatest evidentiary weight." Tax returns or other documentation will serve merely to evidence the likelihood that the sponsor will be able to maintain this income in the future.

The sponsor does not have to be employed. The I-864 requires the sponsor to state whether he or she is employed, self-employed, retired, or unemployed. Income could come from any source, including pensions, interest income and dividends, alimony, or child support.

Question 25 on the I-864 requires the sponsor to check a box indicating that he or she has either (1) filed a tax return for each of the three most recent tax years and is attaching a photocopy or transcript of the most recent return, or (2) is voluntarily attaching photocopies of the tax returns for the second and third most recent tax years. This now reflects the latest policy memos from USCIS and DOS that reduced the proof of tax filings to the most recent year rather than the last three years. Regrettably, there is no comparable box to check if the sponsor did not have a tax liability for any of those three years. If the reason is due to insufficient income, the instructions tell the sponsor to "attach a written explanation," so presumably he or she would still qualify to check the first box.

If the sponsor is exempt from tax filing due to some other reason, he or she must "attach a written explanation including evidence of the exemption and how [he or she is] subject to it." The sponsor in that case may still submit other evidence of annual income. The sponsor or household member must establish by a preponderance of the evidence that he or she had no duty to file the tax return. Being exempt from the income tax filing requirement does not exempt the sponsor from the affidavit of support filing requirement.

The sponsor must list on the I-864 the total income for the last three tax years as reported on those tax returns, since they will be used as an indication of the sponsor's ability to maintain that income over time. If estimated current annual income appears significantly higher than past reported income, or if the income varies widely from year to year, it will likely raise suspicions with an adjudicator. In those cases, expect the USCIS or consular official to request additional proof, such as pay stubs or an employer's letter. Otherwise, those employment records are no longer required to be submitted with the affidavit of support.

The instructions also specify which line from the tax return should be used when reporting "total" income — either gross or adjusted gross — and explain that it is only the federal tax return that must be submitted. The sponsor or household member should not submit a state or foreign income tax return unless the person had no federal tax liability and wants to use the return to verify current income. The sponsor may submit either a plain (uncertified) IRS transcript or a photocopy of the tax return from his or her own records. Include the W-2, Form 1099, and all other attachments and schedules that were submitted with the federal return.

The sponsor may not count any means-tested benefits (food stamps, Supplementary Security Income, Medicaid, Temporary Assistance to Needy Families, or State Child Health Insurance Program) as income, but he or she may include retirement benefits, unemployment compensation, workman's compensation, or other similar benefits. Earlier policy memos explained that sponsors are able to include both taxable and nontaxable income, such as disability and child support payments, as part of the total household income. Until USCIS or DOS issues further guidance, proceed as if those interpretations are still in effect.

Every sponsor who executes an I-864 and every household member who executes an I-864A must submit a copy of their most recent tax return. Many intending immigrants, however, do not need to submit an I-864A. It does not appear that the sponsor has to submit the tax return of the intending immigrant if his or her income is being included and he or she did not execute an I-864A. In those cases, the sponsor simply includes the intending immigrant's income in section 24b of the I-864 as part of total household income. But given that the intending immigrant must either be the sponsor's spouse or be residing with the sponsor, in most situations the intending immigrant either will have filed a joint tax return or be listed as a dependent on the sponsor's return. Bear in mind that the intending immigrant must still submit proof that the "lawful" employment will continue from the same source after he or she obtains LPR status.

What happens when the affidavit of support isn't examined for sufficiency until months or even years after it was submitted? The new rule clarifies that the adjudicating official must consider the sufficiency of the affidavit of support based on the income reported for the year the I-864 or I-864A was submitted, not on the sponsor's income on the date the application for adjustment of status or an immigrant visa is adjudicated. Similarly, adjudicators must use the federal poverty income guidelines in effect at the time the affidavit of support is submitted, not at the time it is considered for sufficiency. For that reason, all sponsors must submit Form I-864P, Poverty Guidelines, with the affidavit of support. In the event that more than one year has passed from the date of submission to the date of adjudication, USCIS or DOS officials may, in the exercise of discretion, request additional evidence, such as income tax returns for the most recent tax year. In those cases, it will be the sponsor's income and poverty income guidelines in effect for the year the adjustment or immigrant visa application is adjudicated that will control, not for the year the affidavit of support was originally submitted.

The INS stated in a 2000 policy memo that the affidavit of support must be legally sufficient at the time the adjustment of status application was approved, not at the time the affidavit was filed. That policy allowed adjustment applicants to submit an affidavit of support showing income below the required level, provided they supplemented it at the adjustment interview showing proof of sufficient income. USCIS has recently reversed its position on this issue and has now determined that the affidavit must be sufficient both at the time of filing and at the time the adjustment application is adjudicated. The NBC already has been following that procedure when it vets the affidavit of support as part of the process of preparing the adjustment application for adjudication. Beginning Nov. 23, 2005, all adjustment applications have to be filed centrally and must include the I-864.

[athena_ny 1]

I remember that this question was covered, but I can't find the post.

I see that the I864 has a box to check saying, "I filed taxes for the last three years, but am only including my tax return from the most current year."

I only filed this year and last because the year before that I was living in Mexico and my income didn't require me to file. I don't have any record of this though. Do I leave that box unchecked?

My mother will be the co-sponsor. It would be much easier if she were to just submit a copy of her return rather than getting it from the IRS. They ask for the W2s and 1099s if this is submitted, but she's retired.

In the step-by-step instructions it says that if you were not required to file for any of the last three years to attach a written explanation of why you were not required to file (citing tax code is popular in this explanation) and evidence that you were not. Living in Mexico alone does not exempt you from filing (which from your wording, you seem aware of) so it seems they need evidence that your income was not high enough to require filing.

This can be found on page 8 of 19 on the I-864.