RFE

[kcoyclay1 98]

I received an email this morning stating that there is an RFE in the mail. I'm assuming it has to do with my husband's lack of income. My husband has not filed taxes, because he has been unemployed. He wrote a letter stating his unemployment status when he submitted the I-485. I'm the household sponsor. If that is the case, I would like to know beforehand what proof can be submitted. I'm aware it may not be for that; however, want to be prepared. I don't know what evidence from IRS he could possibly send because there is no income. What proof can he show when he had no income to file taxes?

[KayDeeCee 4,896]

IRS Pub 17 tells how much you have to earn in order to be legally required to file: http://www.irs.gov/publications/p17/ch01.html#en_US_2011_publink1000170407

[kcoyclay1 98]

Thank you. He did not earn anything because he's unemployed.

[JimVaPhuong 4,863]

I received an email this morning stating that there is an RFE in the mail. I'm assuming it has to do with my husband's lack of income. My husband has not filed taxes, because he has been unemployed. He wrote a letter stating his unemployment status when he submitted the I-485. I'm the household sponsor. If that is the case, I would like to know beforehand what proof can be submitted. I'm aware it may not be for that; however, want to be prepared. I don't know what evidence from IRS he could possibly send because there is no income. What proof can he show when he had no income to file taxes?

You're going to have to be more specific. I presume your son did not enter the US with an immigrant visa or else he wouldn't need to adjust status. I also assume it wasn't any sort of derivative K visa because you didn't enter the US with a K visa. So, did your son enter the US with a B2 visa, like you did? And now he's adjusting status as an immediate relative of a US citizen, like you did?

You're not a US citizen yet, so the only way your son could adjust status would be via a petition from your husband. Did your husband concurrently submit an I-130 with your son's I-485?

If the above is true, then your husband is the primary sponsor. A simple letter explaining his income situation is not sufficient. He would also be required to submit an I-864 affidavit of support. Did he do that?

This is what the Adjudicators Field Manual says about tax returns:

The sponsor must submit with the Form I-864 the sponsor’s U.S. Federal income tax return for the most recent tax year (that is, the completed tax year immediately preceding the date the sponsor signs the Form I-864). USCIS may generally expect a sponsor, after April 15 of any given year (or April 16 or 17, in a year in which April 15 is on a Saturday or Sunday), to have completed his or her tax return for the previous year. If the sponsor requested an extension, the sponsor should provide proof of filing for the extension.

If the sponsor did not file a tax return, the sponsor must prove that he or she was not required to file.

If a sponsor should have filed, the sponsor must file retroactively and provide proof of filing. Note that U.S. citizens generally have an obligation to file a tax return on non-U.S. earnings even if there was no tax liability.

...

Typical proof that a sponsor was not required to file a tax return for a particular year would consist of

a written statement from the sponsor, signed under penalty of perjury, attesting to the amount of his or her income for the relevant year and to the fact that a tax return was not required by law

. USCIS adjudicators handling Form I-864 issues should be aware of the income threshold for the requirement of filing a tax return for the last several years, so that an

RFE

for evidence of the law is not necessary. In particular, the Instruction booklets for each year’s Forms 1040, 1040A, and 1040EZ specify the income threshold below which a person is not required to file a return.

Pay particular attention to the bold portions highlighted above. They want a sworn statement indicating how much income he received, and also indicating that he was not required by law to file a tax return.

Obviously, his affidavit of support will not be sufficient without income. He has two options.

1. He can get a joint sponsor who has enough income to qualify for their own household size, including the intending immigrant. The joint sponsor would submit a complete I-864 package, including tax returns/transcripts, proof of US citizenship or permanent resident status, and proof of domicile in the US.

2. You, as his wife living in the same household, can combine income with your husband to help him qualify. You would submit an I-864A, and copies of your own tax returns/transcripts. You would also submit proof that you're a qualified member of your husband's household (living in the same residence, and related as spouse, adult child, parent, or sibling). There's a line on the I-864 for carrying over the income you declared on the I-864A. If the combined income on the I-864 is above the threshold for the household size then the I-864 would be considered sufficient.

You said that YOU were the household sponsor. Did you use option #1 above, and submit an I-864 for yourself as a joint sponsor? Or, did you use option #2 above, and submit an I-864A as a household member combining income with your husband, the primary sponsor? If you didn't use either of these options, and you were the only one who submitted an affidavit of support, then that's why you're getting an RFE.

[kcoyclay1 98]

You're going to have to be more specific. I presume your son did not enter the US with an immigrant visa or else he wouldn't need to adjust status. I also assume it wasn't any sort of derivative K visa because you didn't enter the US with a K visa. So, did your son enter the US with a B2 visa, like you did? And now he's adjusting status as an immediate relative of a US citizen, like you did?

You're not a US citizen yet, so the only way your son could adjust status would be via a petition from your husband. Did your husband concurrently submit an I-130 with your son's I-485?

If the above is true, then your husband is the primary sponsor. A simple letter explaining his income situation is not sufficient. He would also be required to submit an I-864 affidavit of support. Did he do that?

This is what the Adjudicators Field Manual says about tax returns:

The sponsor must submit with the Form I-864 the sponsor’s U.S. Federal income tax return for the most recent tax year (that is, the completed tax year immediately preceding the date the sponsor signs the Form I-864). USCIS may generally expect a sponsor, after April 15 of any given year (or April 16 or 17, in a year in which April 15 is on a Saturday or Sunday), to have completed his or her tax return for the previous year. If the sponsor requested an extension, the sponsor should provide proof of filing for the extension.

If the sponsor did not file a tax return, the sponsor must prove that he or she was not required to file.

If a sponsor should have filed, the sponsor must file retroactively and provide proof of filing. Note that U.S. citizens generally have an obligation to file a tax return on non-U.S. earnings even if there was no tax liability.

...

Typical proof that a sponsor was not required to file a tax return for a particular year would consist of

a written statement from the sponsor, signed under penalty of perjury, attesting to the amount of his or her income for the relevant year and to the fact that a tax return was not required by law

. USCIS adjudicators handling Form I-864 issues should be aware of the income threshold for the requirement of filing a tax return for the last several years, so that an

RFE

for evidence of the law is not necessary. In particular, the Instruction booklets for each year’s Forms 1040, 1040A, and 1040EZ specify the income threshold below which a person is not required to file a return.

Pay particular attention to the bold portions highlighted above. They want a sworn statement indicating how much income he received, and also indicating that he was not required by law to file a tax return.

Obviously, his affidavit of support will not be sufficient without income. He has two options.

1. He can get a joint sponsor who has enough income to qualify for their own household size, including the intending immigrant. The joint sponsor would submit a complete I-864 package, including tax returns/transcripts, proof of US citizenship or permanent resident status, and proof of domicile in the US.

2. You, as his wife living in the same household, can combine income with your husband to help him qualify. You would submit an I-864A, and copies of your own tax returns/transcripts. You would also submit proof that you're a qualified member of your husband's household (living in the same residence, and related as spouse, adult child, parent, or sibling). There's a line on the I-864 for carrying over the income you declared on the I-864A. If the combined income on the I-864 is above the threshold for the household size then the I-864 would be considered sufficient.

You said that YOU were the household sponsor. Did you use option #1 above, and submit an I-864 for yourself as a joint sponsor? Or, did you use option #2 above, and submit an I-864A as a household member combining income with your husband, the primary sponsor? If you didn't use either of these options, and you were the only one who submitted an affidavit of support, then that's why you're getting an RFE.

Thank you for your response. You have given a wealth of information. However, I am aware of them. I noted that the email stated that I had not submitted an initial evidence and was wondering what I would need if it were due to my husband's lack of income. Would they need a notarized statement? Do they ned notarized statements for those who are unemployed? I did some researching and found that a noatrized statement is needed for those whose income is too low and not for those who have no income. Thanks again.