I-864 - tax return for most recent tax year issue

[Edward&Wendy 2]

Well, I know we're getting ahead of ourselves a little here, but my fiancé and I are just keen to make sure everything is ready.

Long and the short of it, we have a co-sponsor for the I-864 affidavit of support, however, they have an extension for filing their most recent tax return, which means they subsequently can't supply it for the form, and the same will happen when the new tax year begins in April (should we be filing for AOS after that date). When that's the case, how is the most suited means for supplying appropriate information?

Is a tax extension receipt, along with the W2 for the most recent tax year a sufficient means when the most recent tax return is not available?

I would understand that for question 18.a. on the form, the answer would be 'no', but they do have copies of tax returns for the second and third most recent tax years (which I know aren't as significant as the actual most recent).

Also, would the income displayed on the W2 for 2014 be sufficient for answering the part on question 19.a., or does the total income have to come directly from the tax return?

Please forgive any naivety or confusion in what I'm asking, I'm still learning about US taxes and everything involved, but any help or advice would be greatly appreciated.

[Nich-Nick 3,354]

Your joint sponsor does not qualify until they actually file their tax return. An extension does not count. You should start now looking for another sponsor.

[JamnSol 35]

I'm not sure, but right now, the most recent tax year may be 2014- taxes for 2015 aren't due until April 15, 2016. If you have the info for 2012, 2013 and 2014, get it filed now. Then while waiting, look for a back up sponsor in the event you get an RFE.

Tax years are (for most people) January to December, but by law, employers are not required to supply the documents required to file taxes until February, and the filing deadline isn't until April 15. So right now, it would be impossible to supply tax return info for 2015.

Best of luck!

[Nich-Nick 3,354]

I forgot to answer this question

Also, would the income displayed on the W2 for 2014 be sufficient for answering the part on question 19.a., or does the total income have to come directly from the tax return?

Total income for 19abc comes from tax returns. If you look at this tax form https://www.irs.gov/pub/irs-pdf/f1040.pdf , you will see that Line 7 is a total of all W2 wages. But it is lines 7-21 added together to make Line 22 Total Income. Chances are, your intended joint sponsor has something on more than Line 7.

[Villanelle 4,122]

Your joint sponsor does not qualify until they actually file their tax return. An extension does not count. You should start now looking for another sponsor.

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.

EXAMPLE 3: Sponsor signs the Form I-864 on May 5, 2006. However, the

sponsor also filed with IRS a Form 4868, obtaining an extension of the 2005

income tax filing deadline. The sponsor must submit his or her 2004 U.S.

Federal income tax return.

From page 14 - http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2006/affsuppafm062706.pdf

If the sponsor has filed an extension request for his or her most current tax return, would a copy

of the extension request, current year Forms W-2/1099, and the last year’s tax return be

acceptable as initial evidence?

A: Yes.

Dated 2012 from page 2 - http://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2012/November%202012/NBC-AILA-11-30-12.pdf

Im not sure what to make of the wording acceptable as 'initial evidence'... sounds like it leaves it open for 'further evidence' ? Thoughts?

[Nich-Nick 3,354]

Im not sure what to make of the wording acceptable as 'initial evidence'... sounds like it leaves it open for 'further evidence' ? Thoughts?

My thoughts were based on the instructions saying "If you were required to file a Federal income tax return during any of the previous three tax years but did not do so, you must file all late returns with the IRS and attach an IRS-generated tax return transcript documenting your late filing before submitting Form I-864.". I think there is potential for a problem without an actual filed, final, not extended, return. And transcripts for late filing can take a l-o-n-g time. . They are already 10 months late for 2014 and plan to be late for 2015 as well. No clue why the returns can't be done on time but the OP can't really force them to get on with it

So I personally would be looking for a new joint sponsor since they said "my fiancé and I are just keen to make sure everything is ready." It's painful to want to get your immigration just perfect and have to ask someone for a huge favor and then sit and worry that you can't make them do their part. I don't have a legal answer, just that I would want a for sure sponsor lined up.

[Villanelle 4,122]

Oh I agree with the potential problem bit...

Im just wondering about what they considered "filed" and was hoping you would have insight. (whether you like it or not you are one of the go-to people on here re taxes haha) Would an extension count as having something filed? Seems like in the Q&A it is but its not that clear. I was able to find 2 different threads on VJ where people asked something similar and no one really had any answers- it was suggested to just send the extension and the previous year but sadly no one ever followed up and said what happened/ if they were accepted or not.

Im also a bit confused on why they still havent filed taxes yet? I thought extensions were 6 months its been 10 (?) But since the couple is going to be filing AOS after 2015 taxes are due- using the above they would use the 2015 extension and the 2014 completed filing. No clue if it will be accepted or not.

[Nich-Nick 3,354]

Im just wondering about what they considered "filed" and was hoping you would have insight. (whether you like it or not you are one of the go-to people on here re taxes haha) Would an extension count as having something filed?

Well from the IRS--

Form 4868, Application for Automatic Extension of Time To File U.S. Individual Income Tax Return

A U.S. citizen or resident files this form to request an automatic extension of time to file a U.S. individual income tax return.

Filing Your Tax Return

You can file your tax return any time before the extension expires

The wording indicates to me that filing an extension form is not filing a tax return. The form itself is the size of an envelope, so hardly anything close to a tax return. There is really no tax data on it.

I am hardly a tax expert but I have done my own taxes since way before home computers, tax programs, or even calculators. You get In depth experience when all you have is a form, instructions, a pencil and scratchpad for the math. I think maybe my skill is trying to say it in very simple terms, knowing the audience has never seen a U.S. Tax return and may not be fluent in English. I used to teach elementary school and spent seven years teaching learning disabled. You learn to break down concepts in order for them to be understood.

[Edward&Wendy 2]

Well, I have to say I really do appreciate the responses to this. I had been browsing the forums for a similar situation to the one we find ourselves in, but without a clear or decisive answer.

Just as an update, we're in touch with our co-sponsor and emphasising the importance of this hoping that they can get their tax return done in good time for our sake, since we just don't have the option of finding ourselves a new co-sponsor.

[Edward&Wendy 2]

Just as an update:

I will be filing for AOS before the new fiscal year (April) using my co-sponsor's 2014 tax return. My co-sponsor will be filing an extension for 2015 taxes. If my interview falls after April 2016, will proof of the extension as granted by the IRS plus current income proof (2015 W2s, recent pay stubs, and employment letter) suffice?

[Nich-Nick 3,354]

Just as an update:

I will be filing for AOS before the new fiscal year (April) using my co-sponsor's 2014 tax return. My co-sponsor will be filing an extension for 2015 taxes. If my interview falls after April 2016, will proof of the extension as granted by the IRS plus current income proof (2015 W2s, recent pay stubs, and employment letter) suffice?

The tax year in the U.S. begins Jan 1. Not sure what your reference to fiscal year is unless your sponsor chooses a fiscal year for filing his taxes.

If he files a standard Jan1-Dec 31 tax return which is not due until April 18 this year, then 2014 can be considered as the latest tax return until the due date for filing 2015. If the I-864 is signed and filed with AOS prior to tax due date, then a 2014 return works as the required tax return. But you said he has not filed 2014 yet. So right now, there is no tax return. Correct?

At the interview you are not supposed to be asked for an updated (2015) return unless the interviewer believes that something other than the passage of time has changed with the sponsor's income. That comes from a long memo explaining the use of I-864.

There are several things to understand here. Certain things about this affidavit of support are written in immigration law. He must be a citizen or resident of the U.S. He must provide his most recent (at the time of filing) tax return. If you could show a W2 of two million dollars, they would give you an RFE if he did not provide a tax return or proof of his citizenship. So get AOS filed prior to April 18 and you should be good with a 2014 tax return. Get it done after April 18 and a 2015 extension proof may allow you to still use 2014 as the most recent tax return according to the memo.

But that brings up the same question. Have they FILED 2014 yet? And keep in mind that an interviewer can ask for anything he bloody well pleases and you are kinda stuck with providing it or face denial., removal, etc. It's a bit of a slippery slope that could go pear shaped, so cross your fingers and hope for the best since you have no other options.

Edited January 10, 2016 by Nich-Nick

[Villanelle 4,122]

This is a tricky question.

If you file before taxes due Apr 15 2016- you will fill out the 864 with the last 3 yrs as 14,13,12. As well as showing current income. The form will be valid at the time it was submitted/completed. However it takes time for them to review your packet including the 864. Technically any day after tax due date the USCIS expects you to have the prior years taxes done and can ask for them.

Many many people file AOS around the end of tax season. Based on observations the further it is from Apr 15th the more likely they are to ask for an updated 864. So pretty much in late Apr they sometimes let is slide since your form was valid when submitted. Past that though I cant recall anyone 'getting away' with it. Some people who had interviews Apr 16th or 17th needed updated info. As I said the rule is pretty straightforward- after tax due date when the year flips so does the what is considered the prior year and you need the prior year return. Its safer to assume you will then to assume you will get a pass.

They will either RFE you for updated info or ask for it at the interview. Often K1s dont get interviews.

The best I can say is use the memos from above. For after Apr 15th 2016 you will be using the years 15,14,13 respectively. You have or will have the completed 14 return or transcripts and a 15 extension. Submit it or present it as you have it- the 2015 extension and the completed 14 proof. Include a copy of the memos above and hope for the best. It does say 'initial evidence' which is a pretty lousy term if you ask me because it leaves the door open for 'further evidence'.

Best of luck to you at your upcoming interview!!! and please keep us posted on how it goes with the 864.

[angey_blueskies 2]

Many many people file AOS around the end of tax season. Based on observations the further it is from Apr 15th the more likely they are to ask for an updated 864. So pretty much in late Apr they sometimes let is slide since your form was valid when submitted. Past that though I cant recall anyone 'getting away' with it. Some people who had interviews Apr 16th or 17th needed updated info. As I said the rule is pretty straightforward- after tax due date when the year flips so does the what is considered the prior year and you need the prior year return. Its safer to assume you will then to assume you will get a pass.

They will either RFE you for updated info or ask for it at the interview. Often K1s dont get interviews.

I'm here in the US on a K-1 visa. My husband and I were married on April 2, 2016 then went on a honeymoon. My husband had filed for an extension on his 2015 taxes, as they are more complicated than most. He has completed his taxes for 2014, 2013, 2012 and prior.

It is now May 5th, 2016 and I am 3/4 of the way through completing the AOS package.

Can we just submit the evidence for the 2015 tax extension and W2 information, or must we truly get his 2015 taxes done first? What would happen if we get an RFE?

Would just submitting the extension + W2 evidence for now, while getting my husband on top of completing taxes be the best option? That way if we get a RFE, we could then just submit the tax return info as soon as it's received, while at the same time our application would be further down the processing line than if we just waited for the 2015 taxes to be done first?

Any and all advice is most appreciated.

[KayDeeCee 4,893]

File with proof of filing for the extension. Have your husband get those taxes filed to have on hand to easily respond to an RFE asking for them.

[angey_blueskies 2]

At the interview you are not supposed to be asked for an updated (2015) return unless the interviewer believes that something other than the passage of time has changed with the sponsor's income. That comes from a long memo explaining the use of I-864....

There are several things to understand here. Certain things about this affidavit of support are written in immigration law. He must be a citizen or resident of the U.S. He must provide his most recent (at the time of filing) tax return. If you could show a W2 of two million dollars, they would give you an RFE if he did not provide a tax return or proof of his citizenship. So get AOS filed prior to April 18 and you should be good with a 2014 tax return. Get it done after April 18 and a 2015 extension proof may allow you to still use 2014 as the most recent tax return according to the memo....

@Nich-Nick - What memo are you referencing and where can I find a copy to read it?

Thank you for your time