K-1 - Income Requirements

[dnxt 0]

I'm hearing different things regarding income requirements for the K-1 and just want to know definitively. My income for 2000-2008 is above the poverty limits but 2009 is well below. My income now and for 2010 will be well above the poverty limits, but with 2009 being below, will this be an issue?

I know co-sponsorship is not accepted for HCMC, but with my current income above the poverty limits now and the previous 8 years prior to 2009 also above, is this adequate for K-1?

[Bobby+Umit 161]

Did you read the FAQ for the 864 I put in your other topic?

You are required to show the most recent tax return - which would be the 2008. You are not required to fill one for 2009 yet. The closer you get to April 15 will change that.

Further into that entry it says this:

If the income stated by the sponsor does not meet the poverty guidelines then the consular officer may request the sponsor may submit current year income information for additional evidence to reach a determination.

So if you include more evidence for your current income, you will satisfy their requirements.

(not a K-1 topic - moving to Embassy)

[ScottThuy 140]

He's filing K-1.. the 864 wont come into play until they adjust...

[Bobby+Umit 161]

He's filing K-1.. the 864 wont come into play until they adjust...

Embassies use the same instructions for the I-864 for the I-134, as per the FAM and consulate directives.

This is one of the reasons some require 125% (I-1864) of the poverty level instead of the 100% (I-134) level.

[JimVaPhuong 4,863]

Embassies use the same instructions for the I-864 for the I-134, as per the FAM and consulate directives.

This is one of the reasons some require 125% (I-1864) of the poverty level instead of the 100% (I-134) level.

If this was an absolute, then there would probably be a lot more consistency between the different consulates in what sort of evidence they require and will accept with the I-134. For example, the I-864 instructions specifically allow for a co-sponsor. Many consulates will accept a co-sponsor with the I-134, but HCM rarely does. The I-864 specifically allows for either tax transcripts OR a photocopy of the ITR. HCM specifically asks for the transcripts, but state they will accept copies of the ITR under some circumstances. Many other consulates specifically ask for copies of the ITR, and make no mention of the transcripts, even though they will usually accept them.

It's also very difficult to apply the same standards to both the I-864 and I-134 because the forms themselves are not the same. The I-864 provides clear instructions for how to document and determine the sponsor's household size. The I-134, on the other hand, has a section for listing people who are wholly or partially dependent on the sponsor for support. We can only assume that they use this information to determine what the household size would be if the I-864 were being submitted. At least one consulate in India is known for asking that the I-134 include every single person living in the sponsor's home, whether the sponsor actually supports them or not. They then insist that the sponsor's income must be sufficient to support everyone listed on the form. This clearly contradicts the instructions on the I-864, but the consulate has the discretion to make the "public charge" determination however they see fit.

The consulate in HCM has been known to focus only on specific evidence, and use that as a reason for denial. In many cases, other evidence is offered that would have overcome that problem, but the additional evidence is often not accepted and returned to the beneficiary. If the OP's fiancee interviews after April 15th, I can easily see the consulate looking only at the 2009 income tax information, and using that as a basis to deny the visa. The packet 3 and 4 instructions do not ask for anything other than tax information for the most recent tax year, so the CO would not be required to consider any other evidence. The instructions even make it clear that the CO will determine at the interview if a co-sponsor will be accepted. Basically, the "public charge" determination is their 'ace in the hole' when they suspect a relationship is for immigration purposes only, and they don't want to spend any time digging up evidence to prove it. This probably doesn't conform with the directives that the consulates are given in the FAM, but that's not much consolation to a beneficiary who is left holding the FAM in one hand and a denial slip in the other. The only way you can take this discretionary power away from the CO is to get married and file for a CR1.

To the OP, if you choose to pursue the K1 then prepare as much evidence as you can to document that your income is usually well above the threshold, and also explain why your income for 2009 was well below. If you've covered your other bases regarding the bona fides of a genuine relationship, and frontloaded this evidence with your petition, then the CO may not pay much attention to the I-134. They are only likely to use your 2009 income against you if something else about your case smells funny to them.

[Bobby+Umit 161]

If this was an absolute, then there would probably be a lot more consistency between the different consulates in what sort of evidence they require and will accept with the I-134. For example, the I-864 instructions specifically allow for a co-sponsor. Many consulates will accept a co-sponsor with the I-134, but HCM rarely does. The I-864 specifically allows for either tax transcripts OR a photocopy of the ITR. HCM specifically asks for the transcripts, but state they will accept copies of the ITR under some circumstances. Many other consulates specifically ask for copies of the ITR, and make no mention of the transcripts, even though they will usually accept them.

It's also very difficult to apply the same standards to both the I-864 and I-134 because the forms themselves are not the same. The I-864 provides clear instructions for how to document and determine the sponsor's household size. The I-134, on the other hand, has a section for listing people who are wholly or partially dependent on the sponsor for support. We can only assume that they use this information to determine what the household size would be if the I-864 were being submitted. At least one consulate in India is known for asking that the I-134 include every single person living in the sponsor's home, whether the sponsor actually supports them or not. They then insist that the sponsor's income must be sufficient to support everyone listed on the form. This clearly contradicts the instructions on the I-864, but the consulate has the discretion to make the "public charge" determination however they see fit.

The consulate in HCM has been known to focus only on specific evidence, and use that as a reason for denial. In many cases, other evidence is offered that would have overcome that problem, but the additional evidence is often not accepted and returned to the beneficiary. If the OP's fiancee interviews after April 15th, I can easily see the consulate looking only at the 2009 income tax information, and using that as a basis to deny the visa. The packet 3 and 4 instructions do not ask for anything other than tax information for the most recent tax year, so the CO would not be required to consider any other evidence. The instructions even make it clear that the CO will determine at the interview if a co-sponsor will be accepted. Basically, the "public charge" determination is their 'ace in the hole' when they suspect a relationship is for immigration purposes only, and they don't want to spend any time digging up evidence to prove it. This probably doesn't conform with the directives that the consulates are given in the FAM, but that's not much consolation to a beneficiary who is left holding the FAM in one hand and a denial slip in the other. The only way you can take this discretionary power away from the CO is to get married and file for a CR1.

To the OP, if you choose to pursue the K1 then prepare as much evidence as you can to document that your income is usually well above the threshold, and also explain why your income for 2009 was well below. If you've covered your other bases regarding the bona fides of a genuine relationship, and frontloaded this evidence with your petition, then the CO may not pay much attention to the I-134. They are only likely to use your 2009 income against you if something else about your case smells funny to them.

Your correct - I am basing my post on what I've read from other posts and trawling around State/USCIS memo's and the such.

Each embassy is free to deviate from the rules, as we all know.

(BTW - here is the entry in the FAM - which I based my statement on for the 864 is used to determine 134 reqs, I also talked to Ankara embassy about this, and they said basically the same thing to me)

30.8 Affidavits of Support for Nonimmigrants.

They shall be advised, however, that the Forms I-134 are furnished solely as a guide as to items generally required in affidavits of support (see notes to 22 CFR 41.91(a)(15) and 42.91(a)(15) in Volume 9--Visas, Foreign Affairs Manual). Forms I-134 are to be made available only for use in individual cases and are not to be distributed outside the USCIS .

(Here is a link to the State Department FAM -for visa)

(unfortunately - 41.91 and 42.91 appear to be classified and it's redacted from the public)

Edited January 17, 2010 by Bobby+Umit

[dnxt 0]

Jim,

Thanks for the well thought out, thorough answer. It seems that my best bet is either to wait until 2011 to file or do the CR-1, which would allow for a co-sponsor. I'm really leaning towards the latter.

CR-1 has some benefits which include:

- No EAD required to work

- Advance Parole not required to travel outside US

- About half the cost of K-1

[JimVaPhuong 4,863]

Jim,

Thanks for the well thought out, thorough answer. It seems that my best bet is either to wait until 2011 to file or do the CR-1, which would allow for a co-sponsor. I'm really leaning towards the latter.

CR-1 has some benefits which include:

- No EAD required to work

- Advance Parole not required to travel outside US

- About half the cost of K-1

You should also be aware that the CO's in HCM will scrutinize a CR1 just as closely as they would a K1, so your evidence of a bona fide relationship will still need to be just as strong. The main thing in your case is that the consulate doesn't review the affidavit of support, since it will be submitted before the consulate ever gets the case. The qualifying rules for the I-864 are spelled out pretty clearly.

Getting married in Vietnam is complicated. Look into the requirements before deciding to go this route. There is a considerable amount of documentation which you'll both need to submit, as well as the possibility you'll both be interviewed by the VN government before getting the marriage license. Depending on how much the VN government feels like jerking you around, as well as your willingness to cough up a little coffee money, it can take anywhere from a couple of weeks to a couple of months or more to get the license. Some people have managed to get everything done in a single two week trip, while others have needed to either remain in Vietnam longer, or do everything over the course of two or more trips.

[saritamackita 0]

This post has been really helpful, especially the information put by JimVaPhuong. Thank you so much! I have been wondering pretty much the same thing. I started working July 2009 and if I had worked the full year then I would have an income sufficient to be over the poverty level for a family of 3, which is what I will need. I am NOT over the 125% the poverty level though. So how can I find out what the requirements for my particular embassy are? (I am going through Guayaquil, Ecuador). Do I just ask them in an email or is there a better way?

Thanks for your help. I was also wondering, since I am a newbie...what some of the following acronyms mean that I have seen in these posts...

ITR

HCM

FAM

OP

CO

[pushbrk 12,881]

The main thing in your case is that the consulate doesn't review the affidavit of support, since it will be submitted before the consulate ever gets the case. The qualifying rules for the I-864 are spelled out pretty clearly.

The first of these two statements is incorrect. NVC will forward an I-864 to the Consulate even if the petitioner doesn't appear to qualify based on income. It's actually quite common when the income shortfall is potentially offset by assets.

NVC never makes the final approval on the public charge concern. That is always left the Consular officer.

Here's the text of a recent NVC notification. Bold added for emphasis.

The NVC has received the information you have submitted in reference to

the Affidavit of Support. Please be advised that you, as the Petitioner, do

not appear to meet the minimum income requirement according to the

current poverty guidelines to sponsor the intending immigrant(s) for this

petition. The consular officer will make a decision regarding this

requirement at the time of your interview. In order to avoid delays, you

may wish to submit an additional Affidavit of Support (Form I-864) for a

Joint Sponsor to the National Visa Center to assist in sponsoring the

intending immigrants. To view the current poverty guidelines, visit

http://www.uscis.gov/files/form/I-864P.pdf.

If you decide to use a Joint Sponsor to assist in sponsoring the intending

immigrants, please note that you the sponsor may not use Form I-864EZ

and will also need to submit Form I-864.

Edited January 18, 2010 by pushbrk

[JimVaPhuong 4,863]

The first of these two statements is incorrect. NVC will forward an I-864 to the Consulate even if the petitioner doesn't appear to qualify based on income. It's actually quite common when the income shortfall is potentially offset by assets.

NVC never makes the final approval on the public charge concern. That is always left the Consular officer.

Here's the text of a recent NVC notification. Bold added for emphasis.

The NVC has received the information you have submitted in reference to

the Affidavit of Support. Please be advised that you, as the Petitioner, do

not appear to meet the minimum income requirement according to the

current poverty guidelines to sponsor the intending immigrant(s) for this

petition. The consular officer will make a decision regarding this

requirement at the time of your interview. In order to avoid delays, you

may wish to submit an additional Affidavit of Support (Form I-864) for a

Joint Sponsor to the National Visa Center to assist in sponsoring the

intending immigrants. To view the current poverty guidelines, visit

http://www.uscis.gov/files/form/I-864P.pdf.

If you decide to use a Joint Sponsor to assist in sponsoring the intending

immigrants, please note that you the sponsor may not use Form I-864EZ

and will also need to submit Form I-864.

Thanks. I wasn't aware of that!

This post has been really helpful, especially the information put by JimVaPhuong. Thank you so much! I have been wondering pretty much the same thing. I started working July 2009 and if I had worked the full year then I would have an income sufficient to be over the poverty level for a family of 3, which is what I will need. I am NOT over the 125% the poverty level though. So how can I find out what the requirements for my particular embassy are? (I am going through Guayaquil, Ecuador). Do I just ask them in an email or is there a better way?

Thanks for your help. I was also wondering, since I am a newbie...what some of the following acronyms mean that I have seen in these posts...

ITR

HCM

FAM

OP

CO

The website for the consulate will often tell you what they expect to be submitted with the affidavit of support. Each consulate's website is designed differently, so I can't tell you exactly where to look. This information is usually also provided with the packet 4 instructions. Unfortunately, few consulates will tell you exactly what the minimum requirements are, but the general consensus is that they are the same as for the I-864.

ITR - Individual Tax Return, the package of papers you sent to the IRS when you filed your return; e.g., 1040, W2's, etc.

HCM - Ho Chi Minh, as in Ho Chi Minh City - the city in Vietnam where the US consulate is located.

FAM - Foreign Affairs Manual - the policy manual issued by the Department of State for foreign service workers.

OP - Original Poster - the person who created the first post in the thread. This is common jargon on internet forums.

CO - Consular Officer - a foreign service officer working in a US consulate in a foreign country.

[ScottThuy 140]

Also keep in mind that the HCMC Consular website is not accurate and contains much misinformation... Confirmed by Consulate via email last month...

Edited January 18, 2010 by ScottThuy

[Anh map 2,098]

I'm hearing different things regarding income requirements for the K-1 and just want to know definitively. My income for 2000-2008 is above the poverty limits but 2009 is well below. My income now and for 2010 will be well above the poverty limits, but with 2009 being below, will this be an issue?

I know co-sponsorship is not accepted for HCMC, but with my current income above the poverty limits now and the previous 8 years prior to 2009 also above, is this adequate for K-1?

Current and continuing income is what will be evaluated. If you believe that it will help your case you are free to include more than the most recent tax return. From what you've posted that would show that 09 was a "blip" in your earnings.

A lot of people took income hits in 2009. The CO's are aware of this. If you can demonstrate that your income now and for the year 2010 will meet the requirement then I would feel confident about submitting an I-124 to the HCMC consulate.

[Karimah 0]

I'm currently having a disagreement with my attorney. Previous to going back to school I was making $35,000 a year. I returned to school to obtain a degree in nursing and worked on a part-time temporary basis as many know there are little to no night nursing schools and my previous degree allowed me to only work a 9-5.

While in school I earned roughly $11,000 a year working through temp agencies while on semester break or between classes.

Now that I have graduated, I have earned over $11,000 in the last three months. My yearly salary is approximately $45,000 and will move up to $80,000 with the position I am about to accept.

I am being told that I do not meet the income requirements based on my 2013 tax return and will have to wait until I file my 2014 tax return to be approved for the fiance visa. In the meantime,my application been approved and is enroute o the NVC and my attorney is asking for a cosponsor. What should I do? Is there a way around this?

Oh yeah, I'm also being told that this is just a forum and doesn't know the laws but I'm in disagreement with basing my income on a previous tax return when the income I make right now is about to be considerably more.