Intending immigant using personal income for Affidavit of support

[Dakine10 5,452]

This might be my 2nd post in this forum I have searched all over for an answer to my question and there seems to be none, I hope someone can help me answer this.

My wife is a USC and she is filing a petition for me. I have been in the US for approximately 9 years, workied legally for 2 years then my work permit expired and I have since been working illegally for the past 4-5 years. I have filed my taxes for each year that I have worked.

We recently decided to file for my Immigration status. This year will be the first year we file taxes together and my question is as follows;

1. Can I use my income for us to meet the poverty guidelines? Her gross for 2009 is 15900 i'm at 22k, she clearly falls short by a few thousand dollars.

2. If I can use my income, how do I prove that my employment will continue afterwards as stated in the guidelines of the I864?

3. Will the fact that I was working unlawfully be a problem for me to use my income?

We wanted to send this out after we fill our taxes and I just wanted to be clear on that.

Any help would be immensely appreciated!

Thanks

Hi Lostinnc. Since you have been here for 9 years and I'm guessing you must have a SSN, have you checked how close you are to getting 40 qualifying quarters for SS benefits? It can be done in 10 years if you worked most of that time. Once you qualify, you don't even need the affidavit of support. Just pointing this out since you may be close to qualifying.

[Bobby+Umit 161]

Regarding the tax returns filed with the i864, are the requirements the most recent year or the most recent 3 years? There seems to be a little confusion regarding this.

There should not be any confusion.

It's always based on the "recent" tax year.

Right now - that would be 2008,2007,2006.

Once you get to April 15, 2010 - the recent tax year(s) will be 2009,2008,2007.

The instructions state 1 year is sufficient - but if you feel more will help your case, you can add 2 more.

Sometimes you will be ask to provide all 3 (some IO's/embassies)

let me clarify something. If somebody is about to immigrate to the US, that person's income cannot be used to satisfy the requirement, as nobody knows if he or she will be able to continue making that kind of money once in the US.

This is incorrect - if you meet the following criteria, you can use the immigrants income.

From the AFM:

(4) Use of Intending Immigrant’s Income .

If the sponsor does not meet the income requirement on the basis of his or her own income and/or assets, the sponsor may also count the intending immigrant’s income if (1)(a) the intending immigrant is either the sponsor’s spouse or (B) has the same principal residence as the sponsor, and (2) the preponderance of the evidence shows that the intending immigrant’s income results from the intending immigrant’s lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status. The prospect of employment in the United States that has not yet actually begun does not count toward meeting this requirement.

Again - the immigrant in this post has unlawful employment - so he will not be able to use this employment - according to the instructions.

If it was lawful, and they can show evidence that it will continue once they become LPR's, then it can be used. (in addition to the two conditions as listed).

Also - there is a note...

Note The interim rule did not directly address the ability of a sponsor to rely on an intending immigrant’s income from unauthorized employment in meeting the Poverty Guidelines threshold for the sponsor’s household income. In response to a specific comment relating to the issue of the sponsor’s reliance on an intending immigrant’s income, the revised definition of “household income” now makes it clear that income from an intending immigrant’s unauthorized employment may not be considered in determining whether the sponsor’s anticipated household income meets the applicable Poverty Guidelines threshold. The basis for this clarification is the clear public policy, as stated in sections 245©(2) and 274A of the Act, 8 USC 1255©(2) and 1324a, against unauthorized employment. Unauthorized employment, admittedly, is not always a bar to adjustment of status. Nevertheless, sections 212(a)(4)© and 213A of the Act clearly assume that it is primarily the sponsor himself or herself who must meet the income threshold for the Form I-864. This principle is gravely undermined by permitting the sponsor to rely on the intending immigrant’s income, if it is derived from unlawful employment.

Best bet would be for them to get a co-sponsor, or have the sponsor show assets that are 3x the amount needed to make up the difference...

Edited January 25, 2010 by Bobby+Umit

[Bobby+Umit 161]

Hi Lostinnc. Since you have been here for 9 years and I'm guessing you must have a SSN, have you checked how close you are to getting 40 qualifying quarters for SS benefits? It can be done in 10 years if you worked most of that time. Once you qualify, you don't even need the affidavit of support. Just pointing this out since you may be close to qualifying.

This is true.