Joint-Sponsor Question

[pushbrk 12,883]

A paid off house is a sizable asset and should definitelty be listed. In a preposterous thread that ran this week you claimed any attempt to NOT list something on the I-134 such as Unemployment Insurance benefits was lying and making a misrepresentation to the DOS. Other members responded with a resounding "HOGWASH."

See this link for the "HOGWASH"

http://www.visajourney.com/forums/topic/254736-can-we-put-unemployment-benefits-on-i-134/

The house represents a sizable asset and testimony to the joint sponsor's ability and responsibility.

There is no basis in fact for your assumption that "Consulates tend to use the guidelines as given in the I-864 instructions."

I don't know what facts you have to claim the Consulates tend to use...

I didn't suggest not listing the house. I wrote only about how it would be considered.

With respect, that you are unaware of the basis for my assertion and as you say, "don't know what facts" I have to make ANY claim, has little if anything to do with whether there IS a basis or what it is. For the record, my basis for stating, "Consulates tend to use the guidelines as given in the I-864 instructions." comes from direct statements to that effect from a Consular officer for starters but that's just for starters. How you rank the members you respect is your business. Where I obtain my facts or how I come to my conclusions is mine, with absolutely no accountability to you.

Expecting a cosponsor's paid for house to be considered to make up an income shortfall (particularly the home of a family with three dependent children) is a prescription for a huge disappointment. I advise YOU against advising somebody to count on it in a K1 visa process. Finding a truly qualified sponsor is far better advise and the first step in making that happen is to recognize you don't have one yet.

I suggest that in the future, before you challenge the validity of any of my direct assertions, you have an alternate solution to suggest that makes some common sense. I assure you US Consular Officers are trained to and expected to use plenty of it.

[Bobby+Umit 161]

I agree with Pushbrk about embassies tending to use the 864 rules when they consider the 134, for "immigrant visas" (including the K type, since you will eventually use the 864).

What I base that on is my own reading of cases, and my own discussions with the Ankara embassy (I tend to ask a lot of questions when I have someone on my dime, so to speak - your embassy may vary).

My specific question about this was made because the Ankara K-1 instructions, for the I-134, states this:

Form I-134 (Affidavit of Support) together with evidence which may be presented to meet the public charge provisions of the law must be fully completed

So the question was, "what is the law you are referencing on your K-1 instructions to meet the public charge provisions?"

The reply was this:

"8 CFR 213a.2 - Use of affidavit of support." and FAM 40.41.

Yikes - 125% - and it only talks about the I-864, not the I-134, and it's for immigrant visas, not non-immigrant visas. Confusing, but if that is what they are using, then that is what I showed for my AoS.

There instructions for the I-134 also state this:

EVIDENCE OF FINANCIAL SUPPORT: K-1/K-2 principal and derivative applicants are subject to INA 212(a)(4) and must demonstrate to the consular officer's satisfaction that they will not become a public charge. The enclosed information sheet, Optional Form 167, lists evidence, which may be presented to meet this requirement of law. The affidavit of support to be submitted must be Form I-134 and must be accompanied by the most recent year's tax return form. Co-sponsors should also include a copy of their US passports or green cards to their I-134 form.

This shows that this particular embassy considers K visas fall under 864 regulations, and that they want a tax return (not listed as needed on the I-134 I might add).

So it would be good advice for someone trying to show they will not be a public charge would be that they try to meet the 125% level (of the 864), of stable income (or plenty of assets) regardless of what embassy you are going through.

More is better, and if you wish to have a smooth visa journey, it would beneficial you to try to stack the deck in your favor.

----------

How to determine "Public Charge" with affidavits of support?

The FAM gives them great latitude to determining this:

INA 212(a)(4)(B)

(B) Factors to be taken into account.-

(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General

shall at a minimum consider the alien's-

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills

Also - the State departments FAQ on the 864 confirms:

Is a sufficient I-864 the only consideration for meeting any public charge issues at the time of the visa interview?

No. Even though the I-864 is a contract and the U.S. government prohibits giving immigrants most federal means-tested public benefits for at least the first five years after their arrival in the U.S., consular officers look at other public charge issues. They will look at the complete financial situation of the sponsor and the applicant. This means looking at the age, health, education, skills, financial resources and family status of the applicant and the sponsor. They will confirm to the extent possible that the applicant will have adequate financial support and is not likely to become a public charge.

So, "just making it" on the 864 is not a guarantee that you will be accepted.

What is bad about the whole thing is that there is no regulations like this for the 134. Simply put, I believe it's that way because the 134 is not legally enforceable, whereas the 864 is.

So, imagine if your the CO, determining if a 134, for K visa, is sufficient.

Would you go with the 100% level (as it says for the 134), or knowing that the K visa will most likely turn into a immigrant visa, use the 125% (for the 864)?

If I was a CO, I would use the 864 level - just to ensure the person would not become a public charge. (but that is me )

Yes - you can list houses, cars (more than one), UI - but if all you have is "temporary" income like UI, that would put into question number IV on what they use to determine if your going to be a public charge.

(Now it's interesting why they do not allow you to use a car if you have only one, where most people have one house. Logically, I think it's like this because you can't really do anything with a car, other than sell it for money, but a house, you can take out loans on it - not actually sell it to satisfy the level, all though, it doesn't state you can't.)

I have read about cases where the I-134 was rejected, even though they made 100% of the level needed, for K visas, simply because the CO didn't think it was sufficient. (was the embassy using the same criteria as Ankara?)

It's up to the CO, in all cases, so I would think it would be better to have more income(assets) than not, don't you agree?

(For what it's worth, I think Ankara embassy has great guidance and instructions for their visa process, some embassy websites are lacking in that regard...)

[pushbrk 12,883]

I agree with Pushbrk about embassies tending to use the 864 rules when they consider the 134, for "immigrant visas" (including the K type, since you will eventually use the 864).

What I base that on is my own reading of cases, and my own discussions with the Ankara embassy (I tend to ask a lot of questions when I have someone on my dime, so to speak - your embassy may vary).

My specific question about this was made because the Ankara K-1 instructions, for the I-134, states this:

So the question was, "what is the law you are referencing on your K-1 instructions to meet the public charge provisions?"

The reply was this:

"8 CFR 213a.2 - Use of affidavit of support." and FAM 40.41.

Yikes - 125% - and it only talks about the I-864, not the I-134, and it's for immigrant visas, not non-immigrant visas. Confusing, but if that is what they are using, then that is what I showed for my AoS.

There instructions for the I-134 also state this:

This shows that this particular embassy considers K visas fall under 864 regulations, and that they want a tax return (not listed as needed on the I-134 I might add).

So it would be good advice for someone trying to show they will not be a public charge would be that they try to meet the 125% level (of the 864), of stable income (or plenty of assets) regardless of what embassy you are going through.

More is better, and if you wish to have a smooth visa journey, it would beneficial you to try to stack the deck in your favor.

----------

How to determine "Public Charge" with affidavits of support?

The FAM gives them great latitude to determining this:

Also - the State departments FAQ on the 864 confirms:

So, "just making it" on the 864 is not a guarantee that you will be accepted.

What is bad about the whole thing is that there is no regulations like this for the 134. Simply put, I believe it's that way because the 134 is not legally enforceable, whereas the 864 is.

So, imagine if your the CO, determining if a 134, for K visa, is sufficient.

Would you go with the 100% level (as it says for the 134), or knowing that the K visa will most likely turn into a immigrant visa, use the 125% (for the 864)?

If I was a CO, I would use the 864 level - just to ensure the person would not become a public charge. (but that is me )

Yes - you can list houses, cars (more than one), UI - but if all you have is "temporary" income like UI, that would put into question number IV on what they use to determine if your going to be a public charge.

(Now it's interesting why they do not allow you to use a car if you have only one, where most people have one house. Logically, I think it's like this because you can't really do anything with a car, other than sell it for money, but a house, you can take out loans on it - not actually sell it to satisfy the level, all though, it doesn't state you can't.)

I have read about cases where the I-134 was rejected, even though they made 100% of the level needed, for K visas, simply because the CO didn't think it was sufficient. (was the embassy using the same criteria as Ankara?)

It's up to the CO, in all cases, so I would think it would be better to have more income(assets) than not, don't you agree?

(For what it's worth, I think Ankara embassy has great guidance and instructions for their visa process, some embassy websites are lacking in that regard...)

All excellent but written in the context of the primary sponsor. Co-sponsors or Joint Sponsors are considered somewhat differently particularly when it comes to assets. For instance, while the US Citizen spouse might reasonably be expected to liquidate the family home to support their spouse, it is far less reasonable to expect that a joint sponsor would. In addition, the primary sponsor who own their house free and clear can be considered more solvent and have more day to day cash available for mutual support. This adds to the totality of circumstances. A joint sponsor who falls short of the minimum income and has a spouse and three children doesn't look nearly so solvent when the totality of circumstances is considered.

[JimVaPhuong 4,863]

A paid off house is a sizable asset and should definitelty be listed. In a preposterous thread that ran this week you claimed any attempt to NOT list something on the I-134 such as Unemployment Insurance benefits was lying and making a misrepresentation to the DOS. Other members responded with a resounding "HOGWASH."

See this link for the "HOGWASH"

http://www.visajourney.com/forums/topic/254736-can-we-put-unemployment-benefits-on-i-134/

The house represents a sizable asset and testimony to the joint sponsor's ability and responsibility.

There is no basis in fact for your assumption that "Consulates tend to use the guidelines as given in the I-864 instructions."

I don't know what facts you have to claim the Consulates tend to use... But as a matter of point, two highlr senior and respected members have stated...

Jim does conclude that applicants will be safe using the I-864 125% guideline but not that the I-864 Instructions apply to the I-134. But his comment is ONLY in respect to the 100% vs. 125% poverty level.

In fact this joint sponsor will appear as a Rock in the Community and very catchable if the government were to go after him because the alien fiance(e) ended up claiming means tested benefits. This house is clearly what will propel him well above the ability to pay in the mind of the COs.

pushbrk is a strong advocate for accuracy and completeness in all documentation you provide to the US government, and this advice will almost always serve you well in this process. I rarely disagree with his opinions, and have the utmost respect for his knowledge and experience.

In that particular thread I had a disagreement with his implication that a lack of completeness might rise to the level of misrepresentation. Following pushbrk's advice in that thread would have caused no harm to the OP's case. It was simply my opinion that excluding the unemployment payments would also not harm the OP's case as it didn't constitute any intent to misrepresent themselves, and was income the consulate wasn't likely to consider anyway. I may have overreacted when I said "hogwash", but I was on my first cup of coffee.

I believe pushbrk is correct in this case. USCIS only considers an asset you can convert to cash in a reasonable amount of time (12 months), and without undue hardship. As the I-864 instructions indicate, USCIS will not consider your only car as a qualifying asset, even if it has considerable value, since selling it will leave you a pedestrian - an undue hardship. By the same token, selling your only home would leave you homeless, which would certainly be an undue hardship. Yes, in either cause you could simply replace the asset you sold - buy another car, and buy another home or lease an apartment. If you have to spend money in order remove the hardship, then it's basically a wash, or at least USCIS doesn't want to get into nitpicking the pennies you might have left over by buying a less expensive home or car. If USCIS wouldn't consider your only car as a qualifying asset, there's no reason to believe they'd feel any different about your only home. There's certainly no harm in listing it, but you probably shouldn't rely on them considering it in order to qualify.

Whether the same rules apply with the I-134 at the consulates is a matter for debate, but there's sufficient anecdotal evidence that they usually do, based on many case reports. When someone submits an I-134 that clearly meets the minimums established for the I-864 then the consulate almost always considers them to be qualified. When an I-134 clearly does not meet the I-864 minimums then the consulate almost always considers them to be unqualified. People want clear guidance before they go to the interview. Unfortunately, neither the Department of State nor the consulates (for the most part) are offering any. We can only go by the case history and try to figure out what works and what doesn't. The anecdotal evidence seems to indicate that the consulates are using the I-864 minimums as a guideline.

[pushbrk 12,883]

pushbrk is a strong advocate for accuracy and completeness in all documentation you provide to the US government, and this advice will almost always serve you well in this process. I rarely disagree with his opinions, and have the utmost respect for his knowledge and experience.

In that particular thread I had a disagreement with his implication that a lack of completeness might rise to the level of misrepresentation. Following pushbrk's advice in that thread would have caused no harm to the OP's case. It was simply my opinion that excluding the unemployment payments would also not harm the OP's case as it didn't constitute any intent to misrepresent themselves, and was income the consulate wasn't likely to consider anyway. I may have overreacted when I said "hogwash", but I was on my first cup of coffee.

I believe pushbrk is correct in this case. USCIS only considers an asset you can convert to cash in a reasonable amount of time (12 months), and without undue hardship. As the I-864 instructions indicate, USCIS will not consider your only car as a qualifying asset, even if it has considerable value, since selling it will leave you a pedestrian - an undue hardship. By the same token, selling your only home would leave you homeless, which would certainly be an undue hardship. Yes, in either cause you could simply replace the asset you sold - buy another car, and buy another home or lease an apartment. If you have to spend money in order remove the hardship, then it's basically a wash, or at least USCIS doesn't want to get into nitpicking the pennies you might have left over by buying a less expensive home or car. If USCIS wouldn't consider your only car as a qualifying asset, there's no reason to believe they'd feel any different about your only home. There's certainly no harm in listing it, but you probably shouldn't rely on them considering it in order to qualify.

Whether the same rules apply with the I-134 at the consulates is a matter for debate, but there's sufficient anecdotal evidence that they usually do, based on many case reports. When someone submits an I-134 that clearly meets the minimums established for the I-864 then the consulate almost always considers them to be qualified. When an I-134 clearly does not meet the I-864 minimums then the consulate almost always considers them to be unqualified. People want clear guidance before they go to the interview. Unfortunately, neither the Department of State nor the consulates (for the most part) are offering any. We can only go by the case history and try to figure out what works and what doesn't. The anecdotal evidence seems to indicate that the consulates are using the I-864 minimums as a guideline.

All the above is magnified to some degree when speaking of a co or joint sponsor.