RFE related to I-864 (Affidavit of Support)

[jsnow 1]

I am an F1 student (maintaining status), and I applied for AOS through my wife who is a USC.

She didn't work last year (was a student), but we filed taxes jointly, and our household income was 25k (through my work in the university).

She still filled the I-864 as my sponsor (her name was the first on the joint tax return), but only my W2's were included, as she had no employment.

 

We received the attached RFE. 

It asks for the supporting tax documentation for the petitioner.

A legal representative that helped us fill the forms suggested we ask an accountant to write a letter explaining whey my wife (the petitioner) has not W-2, 1099, etc. 

Would that be acceptable?

Is our joint household (made solely from my income - the applicant) acceptable?

 

Finally, what the implications on my F1 status if I withdrew this GC application? (Since I don't have joint sponsor, if it's required)

Will I still be able to continue studying, apply for OPT and jobs?

 

 

[azblk 338]

Your wife should write a letter explaining she was a full time student and did not work last year.

Since you legally earned all the household income from your work at the university. You can use your income alone but you will need a letter from your employer (the university) basically saying that you can/will continue to work there and your income will continue even after you get you green card.

 

#4. Include the Intending Immigrant's Income in Certain Situations. The sponsor can include the intending immigrant's income on line 24b of the I-864 if the intending immigrant either resides with the sponsor or is the sponsor's spouse. The final rule added a new requirement, however. The intending immigrant's income must be derived from "lawful employment in the United States or from some other lawful source that will continue to be available to the intending immigrant after he or she acquires permanent resident status." This means that if the intending immigrant is residing in this country, he or she must currently be working with USCIS employment authorization. It also means that, regardless of where the intending immigrant is residing, he or she must establish that the current source of income will continue after acquiring LPR status.

The USCIS has not defined the term current, lawful "source" of income. It could include the income from those who are employed by a specific employer, as well as from those who are self-employed. If the intending immigrant is employed abroad, presumably the worker cannot include that income unless he or she will be working for the same employer or company (e.g., at a multi-national corporation) upon transfer to this country. But if the intending immigrant is self-employed and will continue that same self-employment after immigrating, that should be sufficient.

The intending immigrant does not need to execute an I-864A unless he or she has a derivative spouse or child who will be accompanying the intending immigrant. Only household members who execute an I-864A must include a copy of their tax return for the prior tax year. Therefore, if the couple is recently married and did not file a joint tax return in the prior year, simply include the sponsor's last tax return and indicate the alien spouse's current income on line 24b. No proof of the intending immigrant's current or past income is required beyond establishing that it is lawful and will continue.

 

[xillini 71]

This is tricky part that I had to face. 

As Azbik said, the USCIS does not define the term and has discretionary power to interpret the lawful source of income. 

So it could virtually mean any lawful source of incomes to meet the Federal Poverty guideline. 

 

In this case, the most common way is to use joint sponsor if availiable, but I didn't want to give financial burden with my close friends (even if I would never use Social security until I retire).

 

I got this RFIE (other than my paper was red, not yellow) and I responded by 

1) In my particular case, I had gift money taxed and verified in my home country 3-4 years ago for 60000$, which is already enough to meet FPG (using a financial assets as described in RFIE notice)

2) I attached I-9 as I was doing OPT, showing that this is USCIS's its own form and implying it would be weird and contradictory if USCIS does not accept this form while it requires every employer to verify legal work authorization working in U.S. 

3) I attached my employer's letter stating that full-time with benefit eligible and they would like to continue to work on with me. 

 

Since you got RFIE, your EAD/AP is also on hold,

 

Funny thing was my attorney advised me we would just wait until new EAD would be issued, so I did not respond to RFIE until I made a service inquiry to see what is going on (5 months after my RD and 2 months after RFIE), 

but clearly since I-485 was on hold, any other associated applications (I-765) were on hold. 

 

Maybe in the past, it was successful that they just filed for I-485 and received RFIE about I-864 whatever reasons, but it did not hold I-765, so eventually they were able to get EAD, by which I-864 can be met in requirement,

but it seems that now USCIS has a new policy when I-485 has RFIE, it does not process I-765. 

Many people including my attorney and VJ community here told me I-485 and I-765 are completely different processes, so one does not interfere another, which was clearly wrong in my case and I had to pay to take the credit for the wrong advice. 

(Maybe, National Benefit Center might follows this way while in Service center like Nebraska, CA, TX, VA I-485 AND I-765 are completely different processes like attorney advised) 

 

So don't waste your time because my attorney advised me just to wait for pretty much until 2 weeks ago when RFIE response deadline was approaching, and I still did not get my EAD, which was also closing to my OPT EAD expiration date and I had to make expedite requests for my pending EAD/AP. 

Edited July 15, 2017 by xillini

[jsnow 1]

@azblk Thanks for the info. I will do that. It should be pretty easy to get a letter from my employer (University).

 

@xillini Thanks a lot. I didn't know about the pending EAD because of the RFIE. This should make it even more urgent for me to respond to the RFIE as I need EAD for a research internship outside my host university this fall semester.