Clash between NVC and Consulate.

[A and F 24]

Hi VJ Members. I am facing a very strange problem regarding AFFIDAVIT OF SUPPORT (I-864).

We got married in Feb 2010. My wife had 2 daughters from previous marriage. Therefore the affidavit of support is for 4 members family and Poverty guideline for 4 members family is 27937.00 US Dollars for year 2011.

My wife had a steady job until last year when she decided to change the job and started working in a retail business. In the month of February my wife was informed that she got an inheritance and received 17000 US Dollars as first installment. The Trust informed her that she would get second installment later when the property which she had a share in as a heir would be sold. In May we got a letter from trust that the house has been sold and she would get the second installment sooner. We actually got second installment on July 26 2011.

Then she was informed in May that she has been accepted for a State job that would be starting from June, 15 2011.

At the date of sending AFFIDAVIT OF SUPPORT (I-864) which was June 19th 2011, she was drawing a salary of 21000 US Dollars with 8000 US Dollars in Bank and a share in inheritance of 21000 US Dollars (which was an estimate as per the price demanded for the property) BUT we actually got 50000 US Dollars. We attached Bank Statement, Email from the Lawyer and Web Shots of the property listing that was for sale along with the Will of her aunt.

When I went to US Consulate for CR1 interview, the consular officer told me that I need to find a joint sponsor because

1_ My wife has an unstable employment history

2_ My wife earned 15000 US Dollars in 2010 which is well below poverty guideline for 3 members and you are starved to death in a country like US in 15000 US Dollars (amazingly my wife and my daughters are alive). Since US economy is bad and that is why you need to find a co sponsor.

I asked consular officer that We have assets which are beyond 8 times the difference but officer said that its upon the discretion of Consular Officer. My wife has plans to write to her Senator and Congressmen but I want to know the legal postion here on this forum as we should do something based on true knowledge. Do we need to find a Co Sponsor or we can challenge the decision as US State website clearly states that first Income then Assets are counted. That clearly shows the conflict between US State Department's publicized information and actual incidents.

Edited August 13, 2011 by Awais

[Inky 1,110]

Find a co-sponsor and be done with it.

Fighting the consul is going to take you forever.

[JimVaPhuong 4,863]

Find a co-sponsor and be done with it.

Fighting the consul is going to take you forever.

This is correct. Immigration law lays down the minimum requirements for a sponsor, but gives the consular officer discretion in determining if the requirements have been met. Immigration law also says they may consider assets, but they aren't required to consider them, and the asset/shortage ratio is a matter of policy and not a matter of law.

Don't fight the consulate. You won't win. Get a joint sponsor.

[A and F 24]

I have heard that Consular Officers NOW have limited discretion regarding I-864. Dont know if its true or not. Also I have never heard of any precedent where consular officer asked for a joint sponsor on the basis that he/she wont accept Assets. If considering assets is a discretion of consular officer then why state website doesnt say that to clarify the matter.

[A and F 24]

I have heard that Consular Officers NOW have limited discretion regarding I-864. Dont know if its true or not. Also I have never heard of any precedent where consular officer asked for a joint sponsor on the basis that he/she wont accept Assets. If considering assets is a discretion of consular officer then why Department of State website doesnt say that to clarify the matter.

[EAbbas 213]

The CO can consider liquidating your assets (or using them) as a hardship therfore they can decide not to accept them. I had 108k in stocks and they didnt want to accept this but my i 864 was accepted because I was above poverty in 2010 and this year as well..

Because your wife isnt' even close to the 125% in 2010 or now with her salary they probably will ask for joint sponsor.

There was another individual recently also that was at the cut off and had plenty of assets but they didnt accept them.

Your best bet is to find a joint sponsor and get that info to them asap so they can move forward with your visa....

Wish you luck in this...

[EAbbas 213]

Although this doesnt say anything about your savings of inheritence it would still be up to the CO... sometimes I think they want to see a good working stable job that supplies enough income vs just assets...at least at ISL embassy that's what they want to see I think....if you look at the last year you will see a good marjority of requirements of joint sponsors even if the petitioner/beneficiary feel they should be ok.

Edited August 13, 2011 by EAbbas

[A and F 24]

I know that I have to find a joint sponsor as consulate has already asked me to do so. However before finding a joint sponsor, I want to know the "LEGAL" position under US Immigration Law. Whether a Consular Officer has DISCRETION to accept assets or not has never been heard. Why I am having ambiguity is because of the information on US State Department website regarding I-864. On US State Department Website it has not been mentioned about discretion of Consular Officer and also they say that first the Salary of the principal sponsor would be considered then sponsor's assets are counted. For spouse the difference between Salary and Poverty Guideline the difference should be 3 times. Nowhere it has been mentioned that acceptance of assets is a 50/50 Chance. Furthermore our assets are HIGHLY Liquid. In any Legal system "foreseeable future" is considered. What confuses me is that when we have a reasonable salary and excessive amount of assets then WHY we should seek the help of a Joint sponsor. I dont think ever we would literally need any help from co sponsor Insha Allah.

[rika60607 215]

$21K is not a reasonable salary for a family of four living in the US, regardless of poverty limits.

[A and F 24]

Here I would reply with merely a simple concept which all of you can understand. Its called SUBSTANCE OVER FORM. Irrespective of my wife's salary, irrespective of anything, we have to see what is the legal position. In my opinion 50,000 US $ is also not a very good salary in US but that is irrelevant as opinions are opinions and reality is reality.

[rika60607 215]

You have your question answered - CO wants to see a co-sponsor and you have next to no leverage in changing his decision...

Poverty guidelines are only a formal requirement, and sometimes an income that low can be accepted by CO (or not) - based on individual circumstances. He applied his discretion as he saw fit.

Legal position? You want to sue the consulate? I understand your frustration, but it is better to focus on getting a visa rather than starting a fight with the consulate.

Here I would reply with merely a simple concept which all of you can understand. Its called SUBSTANCE OVER FORM. Irrespective of my wife's salary, irrespective of anything, we have to see what is the legal position. In my opinion 50,000 US $ is also not a very good salary in US but that is irrelevant as opinions are opinions and reality is reality.

[Gosia & Tito 199]

Hi VJ Members. I am facing a very strange problem regarding AFFIDAVIT OF SUPPORT (I-864).

We got married in Feb 2010. My wife had 2 daughters from previous marriage. Therefore the affidavit of support is for 4 members family and Poverty guideline for 4 members family is 27937.00 US Dollars for year 2011.

My wife had a steady job until last year when she decided to change the job and started working in a retail business. In the month of February my wife was informed that she got an inheritance and received 17000 US Dollars as first installment. The Trust informed her that she would get second installment later when the property which she had a share in as a heir would be sold. In May we got a letter from trust that the house has been sold and she would get the second installment sooner. We actually got second installment on July 26 2011.

Then she was informed in May that she has been accepted for a State job that would be starting from June, 15 2011.

At the date of sending AFFIDAVIT OF SUPPORT (I-864) which was June 19th 2011, she was drawing a salary of 21000 US Dollars with 8000 US Dollars in Bank and a share in inheritance of 21000 US Dollars (which was an estimate as per the price demanded for the property) BUT we actually got 50000 US Dollars. We attached Bank Statement, Email from the Lawyer and Web Shots of the property listing that was for sale along with the Will of her aunt.

When I went to US Consulate for CR1 interview, the consular officer told me that I need to find a joint sponsor because

1_ My wife has an unstable employment history

2_ My wife earned 15000 US Dollars in 2010 which is well below poverty guideline for 3 members and you are starved to death in a country like US in 15000 US Dollars (amazingly my wife and my daughters are alive). Since US economy is bad and that is why you need to find a co sponsor.

I asked consular officer that We have assets which are beyond 8 times the difference but officer said that its upon the discretion of Consular Officer. My wife has plans to write to her Senator and Congressmen but I want to know the legal postion here on this forum as we should do something based on true knowledge. Do we need to find a Co Sponsor or we can challenge the decision as US State website clearly states that first Income then Assets are counted. That clearly shows the conflict between US State Department's publicized information and actual incidents.

I'd say the the short route is to find a co-sponsor. You can fight the system and you would probably prevail in the run, but it would take time and energy; the key words here are: short route vs long run.

[Gosia & Tito 199]

Here I would reply with merely a simple concept which all of you can understand. Its called SUBSTANCE OVER FORM. Irrespective of my wife's salary, irrespective of anything, we have to see what is the legal position. In my opinion 50,000 US $ is also not a very good salary in US but that is irrelevant as opinions are opinions and reality is reality.

At the end of the day, legally, the CO can apply his own subjective opinion (and support it by vague enough assessments to make it stick) and there wouldn't be much you could do.

While there is a legal framework supporting all these immigration processes, there are too many loose ends that are heavily favoring the house (the system in which the CO lives in this case).

It would be nice to stick it to them once in a while, but you have a relatively simple out to win the issue. I'd take it and run with it.

Of course it is your right to fight it base on principle. The opinion of the postings you are seeing is based on the collective experience of many members here and what they have seen over time; yet it is still an opinion and not even a legal one. No one here except some of the lawyers that participate in this discussions can give you a legal opinion.

[Anh map 2,098]

I know that I have to find a joint sponsor as consulate has already asked me to do so. However before finding a joint sponsor, I want to know the "LEGAL" position under US Immigration Law. Whether a Consular Officer has DISCRETION to accept assets or not has never been heard. Why I am having ambiguity is because of the information on US State Department website regarding I-864. On US State Department Website it has not been mentioned about discretion of Consular Officer and also they say that first the Salary of the principal sponsor would be considered then sponsor's assets are counted. For spouse the difference between Salary and Poverty Guideline the difference should be 3 times. Nowhere it has been mentioned that acceptance of assets is a 50/50 Chance. Furthermore our assets are HIGHLY Liquid. In any Legal system "foreseeable future" is considered. What confuses me is that when we have a reasonable salary and excessive amount of assets then WHY we should seek the help of a Joint sponsor. I dont think ever we would literally need any help from co sponsor Insha Allah.

Are looking for a cause to fight? Or are you seeking to secure a visa for your loved one(s)? Choose the correct battle to fight and move on.

The laws and policies give plenty of latitude to the CO conducting the interview. They are not picking on you. They simply want to make a decision that will stand up to scrutiny by their superiors.

Picking a fight to prove a point will consume plenty of your time and money. If that's your choice, I admire you.

Focus on what will unite your family together in the US. That's why you began this immigration journey.

[fazmo 24]

The legal position is that the CO has a legal discretion to evaluate if someone could become a public charge or not. The CO can - and has the full authority - to delay the issuance of visa or even deny it if, upon evaluation of the provided financial support evidence, the beneficiary was still unable to overcome the public charge presumption. A senator cannot do anything about it. The NVC cannot do anything about it. The CO has the final say in evaluating financial support that is available for the intending immigrants to avoid becoming a public charge. Remember that the CO could have denied your visa and still be within his legal lane. You are given a chance to seek a co-sponsor, which I find a lot easier to find than initiating a fight against a system you have almost zero chance of prevailing.