Help Needed

[Frita 0]

I posted earlier, but haven't had any feedback - maybe no one has gone through this before????

I'm trying to help my brother-in-law out - he went this past week for his Citizen Exam and Interview - he passed his Exam with flying colors, looked like he was getting approved BUT THEN, the interviewer asked him about a company that sponsored him back in 2005, they wanted to know if the company paid federal taxes on him, unfortunately the company is no longer in business, and my brother-in-law only worked for them a couple weeks. He had pay stubs from that time that show federal taxes were taken from him, he then became self-employed after that time. He placed a call yesterday to IRS and is having his transcripts sent to him, and trying to contact a Immigration Attorney to help with this as well. He asked what will happen once he gets these documents and he was advised to get the docs to come to the next interview which is 2 months away.

From my own experience in the past year with my husbands AOS - I thought if his file was reviewed and documents were missing, shouldn't they have sent a request for this document before he went for his interview and actually take the exam???

Any help or suggestions would be greatly appreciated...

[Kathryn41 3,205]

It sounds like your brother-in-law is taking the correct course of action. He has paystubs to show that the money was withheld from him and the company was supposed to pay it to the IRS. The transcripts should show if they did indeed make those payments, but they will also show they he did file a tax return and claim the amounts on his return. He has fulfilled his obligation.

If your brother-in-law has proof that he 'paid' his taxes and declared that amount to the IRS, then even if the employer neglected to do so, he should be fine. He is not responsible for the actions of an employer especially if he had no reason to expect them to break the law by not sending in his tax withholds. In all likelihood, the employer did make those tax payments. It is probably because the company sponsored him to the US that she wants to verify they fulfilled their commitments as well. Consulting a lawyer with the information he has and the receipts from the IRS is probably a good idea under the circumstances since the company is no longer around to be contacted.

The N-400 seems to be handled somewhat differently than the other immigration applications. In others they review the application before hand and decide if they have enough to make a decision or if they need more information or an interview. The examiner doesn't seem to look at the contents of N-400 applications until the actual interview date. I know that is what happened at mine - she was going through the application and the attachments for the first time at the interview (I commented on the size of my file, actually, and it was obvious she hadn't looked at it before my arrival). So, it was while she was reviewing your brother-in-law's application that the issue came up. I'm surprised that she asked for clarification of that issue since she should have had the tax information for 2005 in front of her. I am also surprised she would expect him to know if the company did or did not comply with their tax obligations, especially if he declared the amount in his returns and it shows the tax withheld at source.

(I've also removed the duplicate copy of your post so that all of the answers will be in one place. Sometimes it takes a while - especially on a weekend - for people to 'weigh in' with their responses).

Edited April 18, 2010 by Kathryn41

[NickD 203]

The subject of coming here with a work visa is foreign to me, but was under the impression it was only good as long as you were employed by the sponsoring company. Just sounds like this is being questioned. What is really foreign to me is how does a person coming here with a work visa manage to gain LPR status. In that movie, "The Proposal", marriage was the answer, I have no idea.

My wife came here through marriage, and yes, her IO wanted to see her W-2's that is a summation of your paycheck stubs. As a self employed person, I certainly have to file taxes each year, even if a year operates at a loss. Its an advantage in our tax system to do so as that loss is a carry over to next years taxes. So isn't your brother-in-law filing taxes? Of course, the IRS doesn't like to see an individual operating at a loss and may be in for a huge audit with a very close examination of your books and life style. Big corporations get away with that with a very strong legal department, heck if you operate at a loss or very little profit, you don't pay taxes. And yes, those football stadium boxes, country clubs, private jets, etc., were fully deductible, but don't even try to deduct a candy bar as an individual.

As a worker with an earned income and a W-2, have no choice but to pay taxes, can't even deduct your transportation expenses to and from work, that is how our country has become. Everyone with earned income pays FICA taxes, that an employer is forced to deduct and pay directly to the IRS. But income taxes, also have to be deducted, and your brother-in-law could have gotten a refund if he filed his taxes. So the question remains, why didn't he file his taxes? And yes, you are expected to keep at least a five year record of your tax returns, law actually states three years, but with an audit, they will go back five years.

[Frita 0]

Kathryn41 thanks for your input - he said he had all the paperwork there, so he was surprised as well. He said as soon as he saw it was a woman, he knew there was going to be a problem!! hahaha

NickD - he was working for the company that sponsered him - he recieved his greencard, at that time his lawyer stated he could work anywhere now - so he decided to open his own business - he's been self employeed now for over 5 years now. And of course he is/has filed taxes, it was never stated that he didn't file his tax - the question is did his EMPLOYER PAY TAXES on him during the few weeks he was employed with them.

Hopefully once the IRS transcripts come in this will be solved and he can continue with this Oath Ceremony and be done with USCIS....

[NickD 203]

Kathryn41 thanks for your input - he said he had all the paperwork there, so he was surprised as well. He said as soon as he saw it was a woman, he knew there was going to be a problem!! hahaha

NickD - he was working for the company that sponsered him - he recieved his greencard, at that time his lawyer stated he could work anywhere now - so he decided to open his own business - he's been self employeed now for over 5 years now. And of course he is/has filed taxes, it was never stated that he didn't file his tax - the question is did his EMPLOYER PAY TAXES on him during the few weeks he was employed with them.

Hopefully once the IRS transcripts come in this will be solved and he can continue with this Oath Ceremony and be done with USCIS....

Sounds weird his IO is concerned about his employer paying taxes. His employer is required by law to pay the full amount of FICA taxes and to deduct the correct amount of income taxes. Although half of the FICA taxes and full amount of the income taxes can be deducted from the employees paycheck. If his employer did not pay taxes, the IRS would go against the employer and not him.

Also sounds weird his IO is making an issue out of now, should have been done in his LPR status. Sometimes a person does need an experience immigration attorney to straighten out these federal employees that know the law. Your brother-in-law may have to do that.

[Frita 0]

I thought it was odd myself - because he was working for this company around the time he had gotten his green card.

Thanks again for your help - I really hope everything works out for him..