I-864: Unusual income situation; filing during tax season

[ElGrandeDoodel 37]

Hi there everyone - I have a few questions about I-864 which me (UK national alien) and my wife (USC petitioner and sole sponsor) are in the process of preparing to submit to NVC in support of an IR-1/CR-1 spousal visa. There's a quite a bit to unpack, so apologies for the long, detailed post. Thanks in advance!

 

Sponsor's income situation is a little unusual:

• For all relevant years, Sponsor's income has exceeded the required level.
• For several years prior to 2022, and for January 2022, Sponsor was a graduate student receiving a research stipend (effectively an employee salary) from the university she was studying at.
• Since early 2022, Sponsor is founder and CEO of an early-stage start up.
• Since the foundation and incorporation of the company in early 2022, Sponsor has been employed as CEO.
• For the first couple of months after foundation, Sponsor was paid directly by the company as an employee.
• She was subsequently awarded an entrepreneurial fellowship which included a living stipend and health insurance stipend. So, since then (from mid-2022 to present), Sponsor is employed as CEO on a zero-dollar salary, with her actual salary paid by the fellowship organisation.
• Due to how the fellowship organisation is set up, Sponsor is not paid as an employee. Rather, she invoices the fellowship organisation monthly for the living and health insurance stipends.
• I-864 will be submitted by mid-February 2023 at the latest. Since this is in the middle of tax season, Sponsor's tax return for 2022 tax year will not have been prepared or filed.

 

Given the complexity of the situation, we're proposing to submit the following supporting documentation with the I-864:

• IRS tax transcripts for tax years 2019, 2020, and 2021 showing adjusted gross income exceeding the required level.
• W-2 and pay stub showing January 2022 university research stipend income.
• W-2 and pay stubs showing first two months of salary from start up (early 2022) which were paid directly by company to Sponsor.
• Fellowship Contract showing appointment as fellow and amount of living and health insurance stipends.
• Signed Income Verification Letter from fellowship organisation confirming (i) Sponsor's appointment as fellow; (ii) that fellowship is a full time position; and (iii) amount of living and health insurance stipends.
• Bank statements for 2022 to present, evidencing stated income from the various sources for 2022 and 2023.
• Signed letter of explanation from Sponsor explaining the situation and various sources of income for 2022, and referring to the various pieces of supporting evidence.

 

So, my questions:

1. Is the above list of supporting documentation we propose to submit with the I-864 in respect of Sponsor's 2022 and 2023 income sufficient? Would you add anything?
2. How should sponsor describe her employment situation on the I-864: employed or self-employed? To reiterate, Sponsor's current employment arrangement is that she is employed as CEO by a company on a zero-dollar salary, but receives a living and health insurance stipend which exceeds the required level from a fellowship, for which she invoices the fellowship organisation each month. On the Form I-864, should this arrangement be described as employment or self-employment?
3. For the I-864, what is the "most recent tax year" when filing I-864 during tax season? We anticipate we will be filing I-864 by mid-February at the latest. Sponsor will not have filed her taxes for 2022 tax year by then; I imagine this is a common situation when filing I-864s during tax season. Literally, the "most recent tax year" is the 2022 tax year. However, when we file the I-864 Sponsor won't have a transcript or other tax-related documents for that year.
4. Even if Sponsor's current and past income comfortably exceeds the required level, is it advantageous to disclose details of assets of the principal sponsored immigrant in Part 7 of I-864? Alien is fortunate to have significant cash and stocks assets (~$180k cash and ~$50k stocks), which exceed 5x 125% of the 2022 HHS poverty guidelines.
5. If the assets of primary sponsored immigrant are disclosed in Part 7 of the I-864 are denominated in a foreign currency (GBP in this case), what forex rate should be applied to state the value in USD?

Thanks again for your help - we're both very grateful for all the help we've got from this community!

[Boiler 45,486]

No harm in having a joint sponsor ready just in case as this sounds complicated, remember who you are dealing with.

 

 

[ElGrandeDoodel 37]

Thanks @Boiler, hasn't considered that. 

 

Can a joint sponsor be added after approval of the I-130 even if they weren't mentioned on the I-130?

[Boiler 45,486]

Well it is an I 864 issue not an I 130 but yes.

[ElGrandeDoodel 37]

Thanks @Boiler understood. I guess I meant that we'd be adding a joint sponsor halfway through the entire process. But sounds like that's not a problem.

[pushbrk 12,882]

34 minutes ago, elgrandedoodel said:

Thanks @Boiler understood. I guess I meant that we'd be adding a joint sponsor halfway through the entire process. But sounds like that's not a problem.

The I-864 is submitted halfway through the process.  You mention "sponsor".  The "sponsor" is the US Citizen Petitioner.  

 

Become A Students of the form instructions and the form itself.

 

Note that tax returns are about the past. They do not have anything to do with current income for an employed person.  Here's an example.  If you earned 100k in 2022 but lost your job a week before you file the I-864, your current income would be zero. If you earned nothing the last three years and took a job a paying 50k a month before filing the I-864 your current income is 50k.  For an employed person, current income is documented with a current pay stub, not a tax return. Tax returns are about the past.  Current income is how one qualifies.

 

Note also that the number used from the tax returns is "Total Income" not AGI, although often those numbers are the same.

Edited January 22, 2023 by pushbrk

[ElGrandeDoodel 37]

Thanks @pushbrk, appreciate the response.

 

3 minutes ago, pushbrk said:

The I-864 is submitted halfway through the process.  You mention "sponsor".  The "sponsor" is the US Citizen Petitioner.

My understanding is that a joint sponsor is different from the petitioner. I mean joint sponsor here in the sense that term is used in the I-864, i.e. someone who is filing an affidavit of support in addition to the petitioner - such a joint sponsor would tick box 1.d on the I-864. Boiler seemed to be suggesting that, given the complexity of our situation, we add a joint sponsor. My concern was that we'd never referred to any joint sponsor in the process thus far, but per Boiler's response it seems that is not a problem.

 

8 minutes ago, pushbrk said:

Tax returns are about the past.  Current income is how one qualifies.

Thanks, understood.

 

The notes on questions 23.a. - 25. Federal Income Tax Return Information of the I-864 do not appear to address the situation where the tax return for the most recent tax year (ie. 2022) has not been filed at the time the I-864 is submitted. The notes presuppose tax returns have been filed for the most recent tax year:
 

Quote

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.

Unless "most recent tax year" is read to mean "most recent tax year for which you have filed a tax return", it's not clear to me how to comply with the requirement to provide a transcript or tax return for the most recent tax year when filing the I-864 during tax reason. Is there any guidance you can provide regarding this? Many thanks! 

[pushbrk 12,882]

7 minutes ago, elgrandedoodel said:

Thanks @pushbrk, appreciate the response.

 

My understanding is that a joint sponsor is different from the petitioner. I mean joint sponsor here in the sense that term is used in the I-864, i.e. someone who is filing an affidavit of support in addition to the petitioner - such a joint sponsor would tick box 1.d on the I-864. Boiler seemed to be suggesting that, given the complexity of our situation, we add a joint sponsor. My concern was that we'd never referred to any joint sponsor in the process thus far, but per Boiler's response it seems that is not a problem.

 

Thanks, understood.

 

The notes on questions 23.a. - 25. Federal Income Tax Return Information of the I-864 do not appear to address the situation where the tax return for the most recent tax year (ie. 2022) has not been filed at the time the I-864 is submitted. The notes presuppose tax returns have been filed for the most recent tax year:
 

Unless "most recent tax year" is read to mean "most recent tax year for which you have filed a tax return", it's not clear to me how to comply with the requirement to provide a transcript or tax return for the most recent tax year when filing the I-864 during tax reason. Is there any guidance you can provide regarding this? Many thanks! 

Petitioner is "Sponsor".  Joint sponsor is somebody else.

 

Most recent tax year actually filed.  If you haven't filed the I-130 yet, then it's likely to be the 2023 tax return.

 

Looked at your timeline, so you'll just take the 2022 tax return to the interview along with a more current pay stub(s)

 

Doesn't sound like any joint sponsor is needed but they are not mentioned in the I-130 at all.

 

If you're not intending to file the affidavit of support until mid February, why not file the tax return first and save yourself some trouble.

Edited January 23, 2023 by pushbrk

[ElGrandeDoodel 37]

9 minutes ago, pushbrk said:

Looked at your timeline, so you'll just take the 2022 tax return to the interview along with a more current pay stub(s)

Thanks, that's helpful. So:

• Past income for 2021, 2020, and 2019 tax years, but not 2022, will be included in I-864 if we file in the next couple of weeks (i.e. before 2022 tax return has been filed).
• Current income will be evidenced by pay stubs, bank statements etc. in I-864.
• Come interview time, 2022 tax return will have been filed and processed, so 2022 tax transcript and more recent evidence of current income will be brought to interview.

Have I got that right?

[pushbrk 12,882]

1 minute ago, elgrandedoodel said:

Thanks, that's helpful. So:

• Past income for 2021, 2020, and 2019 tax years, but not 2022, will be included in I-864 if we file in the next couple of weeks (i.e. before 2022 tax return has been filed).
• Current income will be evidenced by pay stubs, bank statements etc. in I-864.
• Come interview time, 2022 tax return will have been filed and processed, so 2022 tax transcript and more recent evidence of current income will be brought to interview.

Have I got that right?

Yes, but what are the bank statements for?

 

[ElGrandeDoodel 37]

Just now, pushbrk said:

Yes, but what are the bank statements for?

Well, Sponsor's income for 2022 onwards, and in particular current income, is not simple at all:

• For several years prior to 2022, and for January 2022, Sponsor was a graduate student receiving a research stipend (effectively an employee salary) from the university she was studying at.
• Since early 2022, Sponsor is founder and CEO of an early-stage start up.
• Since the foundation and incorporation of the company in early 2022, Sponsor has been employed as CEO.
• For the first couple of months after foundation, Sponsor was paid directly by the company as an employee.
• She was subsequently awarded an entrepreneurial fellowship which included a living stipend and health insurance stipend. So, since then (from mid-2022 to present), Sponsor is employed as CEO on a zero-dollar salary, with her actual salary paid by the fellowship organisation.
• Due to how the fellowship organisation is set up, Sponsor is not paid as an employee. Rather, she invoices the fellowship organisation monthly for the living and health insurance stipends.

I take your previous point, though, that I am probably conflating past and current income. But in any event, to evidence current income, I think we will need to provide:

• Fellowship Contract showing appointment as fellow and amount of living and health insurance stipends.
• Signed Income Verification Letter from fellowship organisation confirming (i) Sponsor's appointment as fellow; (ii) that fellowship is a full time position; and (iii) amount of living and health insurance stipends.
• Bank statements for 2022 to present, evidencing payment of living and health insurance stipends from the fellowship.
• Signed letter of explanation from Sponsor explaining the source of current income.

Does that sound sensible?

[pushbrk 12,882]

2 hours ago, elgrandedoodel said:

Well, Sponsor's income for 2022 onwards, and in particular current income, is not simple at all:

• For several years prior to 2022, and for January 2022, Sponsor was a graduate student receiving a research stipend (effectively an employee salary) from the university she was studying at.
• Since early 2022, Sponsor is founder and CEO of an early-stage start up.
• Since the foundation and incorporation of the company in early 2022, Sponsor has been employed as CEO.
• For the first couple of months after foundation, Sponsor was paid directly by the company as an employee.
• She was subsequently awarded an entrepreneurial fellowship which included a living stipend and health insurance stipend. So, since then (from mid-2022 to present), Sponsor is employed as CEO on a zero-dollar salary, with her actual salary paid by the fellowship organisation.
• Due to how the fellowship organisation is set up, Sponsor is not paid as an employee. Rather, she invoices the fellowship organisation monthly for the living and health insurance stipends.

I take your previous point, though, that I am probably conflating past and current income. But in any event, to evidence current income, I think we will need to provide:

• Fellowship Contract showing appointment as fellow and amount of living and health insurance stipends.
• Signed Income Verification Letter from fellowship organisation confirming (i) Sponsor's appointment as fellow; (ii) that fellowship is a full time position; and (iii) amount of living and health insurance stipends.
• Bank statements for 2022 to present, evidencing payment of living and health insurance stipends from the fellowship.
• Signed letter of explanation from Sponsor explaining the source of current income.

Does that sound sensible?

For the top section, the "total income" (not AGI) information from three tax returns is needed but you only need to provide a copy of the latest.

 

For the bottom section the fellowship contract itself and a current pay stub are all you need. The contract explains the source and amount.  The pay stub evidences payment.  Keep it simple.

[Wuozopo 4,293]

@elgrandedoodel

 

The above information is spot on. A few things that may not have been directly addressed—

 

7 hours ago, elgrandedoodel said:

How should sponsor describe her employment situation on the I-864: employed or self-employed?

It sounds like she may be employed half year and self-employed half year. She may have to check both boxes. Did she get a W2 (employed) or a 1099 (self-employed contractor) statements of wages for 2022? Or both?  If you wait until the 2022 tax return is filed, you may have a better idea. There is no deadline to get this uploaded to NVC. 

 

 

7 hours ago, elgrandedoodel said:

For the I-864, what is the "most recent tax year" when filing I-864 during tax season?

Until April 18, 2022 (filing deadline) the most recent tax return is 2021 if she signs/submits the I -864 before then and before filing 2022. However, if she submits the I-864 after filing her 2022 return, the most recent return is 2022.

 

7 hours ago, elgrandedoodel said:

Even if Sponsor's current and past income comfortably exceeds the required level, is it advantageous to disclose details of assets of the principal sponsored immigrant in Part 7 of I-864?

If she can show current income is over the threshold, the assets are of no advantage. It won’t get you “more approved”. However, if you the immigrant have that level of assets, you can self-sponsor in London. The problem is the NVC will review everything before sending the case to London and the workers often don’t understand anything but the boilerplate tax return and a job exceeding the threshold. They could be a sticking point to qualify you ready for interview because they don’t understand self-sponsorship is a thing in London. If she can do a traditional I-864 proving current income, it will likely go faster. She can add your assets with proof on her I-864 in part 7 under “Assets of the intending immigrant” but I would keep it simple and just use her income.
 

 

7 hours ago, elgrandedoodel said:

If the assets of primary sponsored immigrant are disclosed in Part 7 of the I-864 are denominated in a foreign currency (GBP in this case), what forex rate should be applied to state the value in USD?

I would go with the USD value on the date on your last financial statement proving each asset. 
 

 

And repeating previously mentioned to you—-
Skip her bank statements. Not needed. 

The I-130 is a petition to USCIS and the I-864 is not on it. Your approved petition is handed off to the Dept of State at the National Visa Center. New people, new part of the government. They are the ones wanting I-864. 
 

Edited January 23, 2023 by Wuozopo

[pushbrk 12,882]

Note the employed or unemployed question is asked in the present tense.  A fellowship stipend is employed.  On salary from a company you own, is employed.

[ElGrandeDoodel 37]

Thank @pushbrk and @Wuozopo for your input, very very helpful.

 

3 hours ago, Wuozopo said:

It sounds like she may be employed half year and self-employed half year. She may have to check both boxes.

I guess that's correct for tax year 2022, but for the current tax year (2023), and for her current situation, she is only receiving the fellowship stipends, and so is either self-employed or employed. Sponsors current employment situation is relatively simple; it is tax year 2022 where we have the patchwork of incomes.

 

3 hours ago, Wuozopo said:

If you wait until the 2022 tax return is filed, you may have a better idea. There is no deadline to get this uploaded to NVC.

Agreed, this is definitely right. We're keen to keep things moving, but obviously should balance our desire to get things submitted against the need to submit at the most sensible time.

 

3 hours ago, Wuozopo said:

She can add your assets with proof on her I-864 in part 7 under “Assets of the intending immigrant” but I would keep it simple and just use her income.

Thanks for the detail here - sounds like the simplest route is simple to ignore alien's assets and just proceed on the basis of sponsor's income.

 

3 hours ago, Wuozopo said:

Skip her bank statements. Not needed. 

Noted. I have a tendency to want to over provide, but I take your point and that made by @pushbrk that simplicity is key here. Provide what is requested and nothing more.

 

2 hours ago, pushbrk said:

Note the employed or unemployed question is asked in the present tense. 

Thanks for reiterating @pushbrk, good to remember.