K-1 and I-134/I-864 question

[ryna 132]

I'm not sure I am fully understanding the purpose of the I-134 vs the I-864 as it applies to the K-1 process.

Is the I-134 only intended to show sufficient means of support during the non-immigrant visa phase of the process (before AOS application) and the I-864 only used for the AOS (I-485(?)) petition?

The reason I ask is, while I have earned well above the 125% poverty guidelines, I was recently laid-off just as I was filing my I-129F and can only show assets and prior year tax returns, i.e. no current pay stubs, no letter from current employer, etc. Through this partial year (2010), I meet the 125% guidelines. Is that sufficient for the I-134? I have willing and able joint sponsor(s) but I only want to rely on them if I haven't landed another position by the time my fiancee's interview is scheduled. Would having a new job of a short duration present any problems given a history of earning sufficient wages? Is it possible to file an amended and/or new I-134/I-864 removing the co/joint sponsor once the (current) income requirements are met solely by me again? I certainly don't want my joint sponsor(s) to be responsible (long-term) once I'm working but, given it's duration, I just can't let the K-1 process be derailed because of a short-term issue, especially since I seen that a second petition (even for the same person) is held in a bad light. (It requires a waiver, right?)

Thanks

[djeslinger 0]

I am a little confused also here. I read on the USDOS website that the I-864 requires 125% and the I-134 requires 100%.

Since the I-134 is what is used why does everyone say the guideline is 125%?

Here is the link for that info: http://travel.state.gov/visa/immigrants/types/types_2994.html#Forms

Edited May 11, 2010 by djeslinger

[Penguin_ie 5,995]

The current situation matters, not what was in the past. So if you currently have no income, even if your previous job was sufficient to meet the poverty line, as the job no longer exists, you cannot rely on it for financial sponsorship. You will either need to sponsor on assets, or get a co-sponsor.

The I-134 technically requires only 100%. However, as soon after you will need the I-864 for AOS, many consulates use the guidelines and rules of the I-864 to determine financial sponsorship elligibility, thus it is best to be able to show 125% from the start.

[Bernie C 24]

The current situation matters, not what was in the past. So if you currently have no income, even if your previous job was sufficient to meet the poverty line, as the job no longer exists, you cannot rely on it for financial sponsorship. You will either need to sponsor on assets, or get a co-sponsor.

The I-134 technically requires only 100%. However, as soon after you will need the I-864 for AOS, many consulates use the guidelines and rules of the I-864 to determine financial sponsorship elligibility, thus it is best to be able to show 125% from the start.

I'm totally in agreement with "the Penguin".

[pushbrk 13,006]

I am a little confused also here. I read on the USDOS website that the I-864 requires 125% and the I-134 requires 100%.

Since the I-134 is what is used why does everyone say the guideline is 125%?

Here is the link for that info: http://travel.state.gov/visa/immigrants/types/types_2994.html#Forms

Because most Consulates use the 125% guideline for visas intended for those with immigrant intent. Any K visa case is for an applicant who will soon be needing to meet the I-864 requirements.

[JimVaPhuong 4,863]

I am a little confused also here. I read on the USDOS website that the I-864 requires 125% and the I-134 requires 100%.

Since the I-134 is what is used why does everyone say the guideline is 125%?

Here is the link for that info: http://travel.state.gov/visa/immigrants/types/types_2994.html#Forms

That statement on the DoS website is not based on policy or law. In fact, there is very little in the way of policy or law that covers the I-134. Section 212 of the INA only says that an alien is inadmissible if, in the opinion of the consular officer, they are likely to become a public charge in the future. The INA says that a consular officer may consider an affidavit of support in making this determination. Section 213A of the INA describes the requirements of the affidavit, but only the I-864 meets the requirements of that section. The I-134 does not. It's not a legally binding contract, as the law requires, and the oath portion of the document does not explicitly state what obligations (if any) are being assumed by the sponsor.

In short, the I-134 is little more than a summary sheet for the other financial evidence that the consulate wants to see in order to make the "public charge" determination.

You also should look at this from a practical perspective. Why would they issue a visa to an intending immigrant with a sponsor who doesn't meet the requirements that they will need to meet once they arrive in the US and apply for a green card? Wouldn't this leave some K1 visa holders stuck in the US without a sponsor who qualifies to help them adjust status?

The public charge determination is up to the discretion of the consular officer. They aren't bound by statements on the DoS website. There is ample evidence from cases on VJ that many applicants have been told to get a co-sponsor when their primary sponsor fell below the 125% income threshold.

[ryna 132]

Thanks all. That's what I figured on the current income, I just wasn't 100% certain how they determined "income": on a current year basis (OK) or on a continuing basis (not at the moment). It's not so bad if the I-134 is only until the I-864 is filed as that would be several months after the I-134 is needed at the interview and allows me that much more time to start my next contract assignment, if it comes to that. This is actually welcome news to me. I don't mind so much asking my co-sponsor(s) for a short-term (I-134) backing just in case the visa interview comes before a new assignment does, but I really prefer the long-term (I-864) to be strictly on my shoulders and that shouldn't be a problem by the time I'll need it.

The only thing that could be an issue is: Does USCIS look at the length of time a person has been on a particular job or just at the income level? Can the filings be amended at a later time to remove co-sponsors?

Sorry for all the questions but this is totally new to me.

[pushbrk 13,006]

Thanks all. That's what I figured on the current income, I just wasn't 100% certain how they determined "income": on a current year basis (OK) or on a continuing basis (not at the moment). It's not so bad if the I-134 is only until the I-864 is filed as that would be several months after the I-134 is needed at the interview and allows me that much more time to start my next contract assignment, if it comes to that. This is actually welcome news to me. I don't mind so much asking my co-sponsor(s) for a short-term (I-134) backing just in case the visa interview comes before a new assignment does, but I really prefer the long-term (I-864) to be strictly on my shoulders and that shouldn't be a problem by the time I'll need it.

The only thing that could be an issue is: Does USCIS look at the length of time a person has been on a particular job or just at the income level? Can the filings be amended at a later time to remove co-sponsors?

Sorry for all the questions but this is totally new to me.

Joint sponsors cannot be removed. You mention a contract assignment. If you are paid with 1099, you are technically self employed. As such, you would state your current income as the number from line 22 of the 2009 1040, even if you are between assignments. It is "Employees" that state current income from "employment" or retirees from pensions etc.

[djeslinger 0]

You also should look at this from a practical perspective. Why would they issue a visa to an intending immigrant with a sponsor who doesn't meet the requirements that they will need to meet once they arrive in the US and apply for a green card? Wouldn't this leave some K1 visa holders stuck in the US without a sponsor who qualifies to help them adjust status?

Very good answer!!!!!

[ryna 132]

Joint sponsors cannot be removed. You mention a contract assignment. If you are paid with 1099, you are technically self employed. As such, you would state your current income as the number from line 22 of the 2009 1040, even if you are between assignments. It is "Employees" that state current income from "employment" or retirees from pensions etc.

Unfortunately, I contract through agencies as a W-2 employee to them and they don't keep contractors on the books between assignments. All the more reason to consider going it solo in the future (but that's a different story!)

Thanks. I just need to make sure everything is in order when I-864 time rolls around...