I-485 Denied Based on Joint Tax return

[above_and_beyond 1]

 submitted back in Jan 2021. Received request for more information in May 2021. Specifically income verification and tax return. On the submitted tax return only the first 1040 page was given. Petitioner is self employed and spouse worked overseas while both lived overseas. In addition a years worth of business account history along with verified 1099k to show verified business income.

 

Application was denied specifically because it was joint filed and no clarification was given as to the source of the incomes on the tax return. Additionally business assets are not admissable and they don't care it's a pass through business the business account can't be used apparently.  

 

Note everything was reviewed by a lawyer before submission, not a cheap lawyer at that. They saw the single page joint tax return and all business documents. There was no mention of giving a schedule c or clarifying income. They seriously dropped the ball on this. Worse yet the lawyer actually discussed documents in there so they clearly read it and felt it was enough....

 

Lawyer now wants to try again and says I-290b is a bad idea and will take much longer. The self employed taxed and reported income of the petitioner is enough to meet the 125% threshold. This feels like clearly a mistake that a 290b is meant for. 

 

What's everyone's thoughts here? Has Anyone done a i-290b or reapplied for 485? What's the timeline for either or for work permission under i-485 typically? It's going on 11 months since application was filled and now denied. That's a long time to not work.

[K1visaHopeful 2,814]

I290b is when USCIS makes an error.

They didn't.

 

[above_and_beyond 1]

Feels like it could be made more clear somewhere that a jointly filled tax return needs additional clarification. Also Seems like since the application is valid and they just didn't understand the return it was in error. 

[Ayrton 965]

5 hours ago, above_and_beyond said:

Feels like it could be made more clear somewhere that a jointly filled tax return needs additional clarification. Also Seems like since the application is valid and they just didn't understand the return it was in error. 

If you are submitting a 1040, instead of tax return transcript, you must submit the whole tax package. You said you only submit the first page of the 1040. That's not enough. When you're self employed, the instructions also mention that you must submit all the schedules that shows how much money the sponsor is making. When it's a joint return, the instructions also says that you should submit proof of just the sponsors income, and not the spouse.  That's all in the instructions.

[above_and_beyond 1]

5 hours ago, Ayrton said:

If you are submitting a 1040, instead of tax return transcript, you must submit the whole tax package. You said you only submit the first page of the 1040. That's not enough. When you're self employed, the instructions also mention that you must submit all the schedules that shows how much money the sponsor is making. When it's a joint return, the instructions also says that you should submit proof of just the sponsors income, and not the spouse.  That's all in the instructions.

Actually it was 3 years of transcripts official ones provided with the initial application. Then they said no they want actual tax returns in a request for information. This is when the tax return was sent. All this was done with a lawyer. I honestly thought they would catch something so clearly obvious as a joint return requiring clarification of income source. The request for more info didn't state needing schedule c or clarifying in a joint return. It was a bad combination of trusting the lawyer and not doing our own research. Now we are out the money to the lawyer and fees along with deciding ASAP if it's better to request it reopened under 290b or resubmitting. 

 

One has to wonder if a lawyer is liable for such negligence in counsel.

[Ayrton 965]

58 minutes ago, above_and_beyond said:

Actually it was 3 years of transcripts official ones provided with the initial application. Then they said no they want actual tax returns in a request for information. This is when the tax return was sent. All this was done with a lawyer. I honestly thought they would catch something so clearly obvious as a joint return requiring clarification of income source. The request for more info didn't state needing schedule c or clarifying in a joint return. It was a bad combination of trusting the lawyer and not doing our own research. Now we are out the money to the lawyer and fees along with deciding ASAP if it's better to request it reopened under 290b or resubmitting. 

 

One has to wonder if a lawyer is liable for such negligence in counsel.

Unfortunately your lawyer didn't do a good job. And since you trusted them, you didn't pay a closer attention to your forms.

 

A complete tax return is not only the first page of the 1040. It's the whole package. Every schedule, every W2, every 1099.

 

From the instructions of the form, which is what you and your lawyer should be following:

 

"Item Numbers 23.a. - 25. Federal Income Tax Return Information.

 

You must provide either an Internal Revenue Service (IRS) transcript or a photocopy from your own records of your Federal individual income tax return for the most recent tax year. If you believe additional returns may help you to establish your ability to maintain sufficient income, you may submit transcripts or photocopies of your Federal individual income tax returns for the three most recent years.

 

You are not required to have the IRS certify the transcript or photocopy unless specifically instructed to do so by a Government official; a plain transcript or photocopy is acceptable. Do not submit copies of your state income tax returns.

 

Do not submit any tax returns that you filed with any foreign government unless you claim that you were not required to file a Federal individual income tax return with the United States Government and you wish to rely on the foreign return solely to establish the amount of your income that is not subject to tax in the United States.

 

If you provide a photocopy of your Federal individual income tax returns, you must include a copy of each and every Form W-2 and Form 1099 that relates to your returns. Do not include copies of these forms if you provide an IRS transcript of your Federal individual income tax returns rather than a photocopy unless you filed a joint income tax return with your spouse and are qualifying using only your income.

 

If you selected Part 6., Item Number 2. that you are self-employed, you should have completed one of the following forms with your Federal income tax return: Schedule C (Profit or Loss from Business), Schedule D (Capital Gains), Schedule E (Supplemental Income or Loss), or Schedule F (Profit or Loss from Farming). You must include each and every Form 1040 Schedule, if any, that you filed with your Federal income tax return."

 

On your first package that you sent transcripts, did you also send the 1099s, and the schedules? If not, your RFE was correct. 

 

On the RFE response, you already mentioned you didn't send the whole tax return, and even if the RFE is not specific, you should still follow the form instructions to respond to it. Since you and your lawyer failed to do that, the denial was correct. 

 

Only option you have is to refile. Trying to appeal the case will only result in another denial and more money spent, because the case was correctly denied.

Edited November 11, 2021 by Ayrton

[above_and_beyond 1]

Thanks for detailed follow up. I'm pretty frustrated that something so simple has now caused nearly a year of delays and back and forth headaches. Honestly I can't imagine how my lawyer could have critiqued other documents in the follow up but missed such a crucial point about a joint tax return. It's really frustrating because I actually remember reading that part years ago before starting the process and that's why we initially only sent the transcripts. Again the lawyer didn't see any issue. This person has been practicing for 10+ years we couldn't have been the first self employed joint process. Ugh. So much money and time wasted because we trusted our lawyer to direct us in the process and double check our documents. Swear we could have done this better ourselves 

[arken 4,197]

Had you not filed for EAD along with initial i485? It would have at least allowed you to work till i485 got denied.

 

Anyway, the best is to file for AOS asap along with EAD/AP. In that case if EAD is issued sooner than GC, you can start working earlier. Make sure you include everything this time including evidences of current income for self employed people. Good luck and this time save attorney fee for urself.

[above_and_beyond 1]

1 hour ago, arken said:

Had you not filed for EAD along with initial i485? It would have at least allowed you to work till i485 got denied.

 

Anyway, the best is to file for AOS asap along with EAD/AP. In that case if EAD is issued sooner than GC, you can start working earlier. Make sure you include everything this time including evidences of current income for self employed people. Good luck and this time save attorney fee for urself.

We had actually it basically never got issued. I guess we'll have to do it again. What's the typical time for an EAD?

 

Thanks

[Chancy 6,241]

29 minutes ago, above_and_beyond said:

What's the typical time for an EAD?

 

Current estimate for EAD processing is 9 to 12 months -- https://egov.uscis.gov/processing-times/

 

[above_and_beyond 1]

9+ more months.. Remarkable.... Our lawyer should be disbarred for such an oversight.

[above_and_beyond 1]

Does anyone know if the i-130 will continue after the i-485 has been denied? They asked us to submit the affidavits and other relationship verifications in mail on the same day the denial of i-485 was sent.

[arken 4,197]

38 minutes ago, above_and_beyond said:

They asked us to submit the affidavits and other relationship verifications in mail

For i130? 
Then do provide enough by deadline. If they don't get it by due date, your i130 will be denied. If so, you can't file the new i485.

if they asked it for i130, that means your i130 evidences aren't strong.

 

41 minutes ago, above_and_beyond said:

Does anyone know if the i-130 will continue after the i-485 has been denied?

Yes, i130 doesn't get impacted by i130 denial .

 

[above_and_beyond 1]

1 hour ago, arken said:

For i130? 
Then do provide enough by deadline. If they don't get it by due date, your i130 will be denied. If so, you can't file the new i485.

if they asked it for i130, that means your i130 evidences aren't strong.

 

Yes, i130 doesn't get impacted by i130 denial .

 

Really appreciate your follow up. This is actually their first request for relationship information for the i-130. It's odd that it's dated on the same day as the i-485 denial. We didn't even get to the point for an interview yet only bio metrics. 

 

That's interesting that the i-130 can continue irrespective of the i-485. The relationship history is pretty strong though. Long 5 year courtship. 3 year marriage.

 

Of course with this idiotic i-485 denial it might make sense to go over the top with provided information now. Thinking Affidavit, previous trips together before and after marriage. Lease. Car insurance. Utilities. Etc. 

 

Is there a chance the i-130 might be approved before a secondary i-485? Would the i-130 approval basically be the end of it? 

[arken 4,197]

1 hour ago, above_and_beyond said:

The relationship history is pretty strong though. Long 5 year courtship. 3 year marriage.

For uscis, what you provided as an evidences tells how strong the relationship is, not the time you tell them. So it's important to provide evidences of bonafide relationship.

 

1 hour ago, above_and_beyond said:

Is there a chance the i-130 might be approved before a secondary i-485?
 

Very likely since it's already that many months for i130. For you new i485, it may take up to another 1- 2 years depending upon your field office.

 

1 hour ago, above_and_beyond said:

 

Would the i-130 approval basically be the end of it? 

What end? I130 approval doesn't mean i485 will be approved. I485 has to be approved on its own merit.