I-864A Intending Immigrant as Household Member, using their continuing Foreign Income

[seattlegc 36]

Hi There,

 

Here's the situation:

 

I'm USC, resident in Washington State.

 

Spouse is Ukranian. She lives abroad in a 3rd country (Namibia), where she was previously married. Has two minor children from ex.

 

We were married in Olympia, WA July 2023. She went back to Namibia, where she is Permanent Resident, as we decided to go consular route, CR1.

 

i-130 file Sep 2023, approved within days

 

DQ on NVC early December. (We applied I-864 route by attempting to use her existing foreign income, which she receives from her two retail stores, which she does not physically manage. This is easily proven with long established business formation documents and also Namibian Tax Transcripts)

 

I completed an I-864 (not enough income; I'm still rebuilding business after Covid)

 

So completed I-864a with Spouse as HOUSEHOLD MEMBER (I successfully added her as one under the Spouse category on CEAC) but also as the Intending Migrant where we attempted to use her continuing FOREIGN income from the two shops mentioned above (about $75000 annually) as proof to meet the threshold.

 

All this was accepted by NVC. No issues.

 

Interview today 15 Feb 2023 JOHANNESBURG, South Africa as it handles Namibian Immigrant Visas

 

However, at the interview: Immigration Officer gave SPOUSE 221(g) Refusal/Administrative Processing - saying she cannot sponsor herself (Which as i understand is incorrect, as per I-864Ainstr - two extracts of that document below), and that we need a Co-Sponsor.

 

https://www.uscis.gov/sites/default/files/document/forms/i-864ainstr.pdf

 

"Who May Be Considered a Household Member for Purposes of Form I-864A? For purposes of this contract, one or more of the following individuals may sign the Form I-864A as a household member if at least 18 years of age:

 

1. The intending immigrant, if the sponsor seeks to rely on an intending immigrant’s continuing income to establish the sponsor’s ability to support the intending immigrant’s spouse or children;"

 

How Can the Intending Immigrant Be Considered a Household Member? Listed below are two ways that the intending immigrant may be considered to be a household member for the purposes of pooling income with the sponsor to meet the Affidavit of Support requirements: Form I-864A Instructions 12/08/21 Page 1 of 10

 

2. The intending immigrant is the sponsor’s spouse and the intending immigrant can show that his or her income will continue from a lawful source after acquisition of lawful permanent residence.

 

Was he wrong, or am I missing something. 

 

 

 

 

[Redro 4,611]

Financial support and the I864 approval is up to the discretion of the consulate. You can reply to the 221g with the rule you posted and see if that will work. But, consulate might not believe the income from the two shops is reliable. 
Was the $75000 the salary the beneficiary was paying herself or was it profit?

And where are the shops based and is there proof you will be able to maintain ownership and control of the two shops after the move to the US?

You need to build a strong case indicating this income is reliable.

[pushbrk 12,878]

42 minutes ago, Redro said:

Financial support and the I864 approval is up to the discretion of the consulate. You can reply to the 221g with the rule you posted and see if that will work. But, consulate might not believe the income from the two shops is reliable. 
Was the $75000 the salary the beneficiary was paying herself or was it profit?

And where are the shops based and is there proof you will be able to maintain ownership and control of the two shops after the move to the US?

You need to build a strong case indicating this income is reliable.

If you do that, submit a new properly completed I-864 with the wife's business income included.  Don't use an I-864a.  That was a mistake you made.  Then, provide plenty of enhanced evidence that income will continue with her in the USA.

An immigrant absolutely  CAN  effectively "self sponsor".  It happens frequently, when the breadwinner is the immigrant, and their income will continue, or when the immigrant's liquid assets are used to qualify.

 

Understand also, you are reading USCIS instructions.  Consular Officers have similar guidelines but it is always a judgment call.  In the situation you describe, an officer is going to consider the impact of your wife's absence on the continuing profitability of the business.  Remember also, it is not the business revenue that counts. It's the profit.  Officers are trained and required to consider the totality of circumstances in all cases, not just what you want them to consider.

Edited February 16 by pushbrk

[Boiler 45,486]

The 75k is what she pays taxes on? Is it salary or dividends.

 

As an aside why have you not gone I 134a?

Ohh and where does SA come into this.

[pushbrk 12,878]

Another consideration in this kind of case is that the Consular Officer may not have said, but may have believed that BECAUSE the immigrant is the breadwinner, they entered into the relationship primarily for the immigration benefit, instead of a bona fide relationship.  This also is part of the "totality of circumstances".

 

[seattlegc 36]

thank for your replies.

 

Spouse has two minor children, so, i completed i-864A as in the Instructions for I-864 is states the following:

 

Item Numbers 8. - 22. Current Annual Household Income. This section is used to determine the sponsor’s household income. If your individual annual income listed in Item Number 7. is greater than 125 percent (or 100 percent if you are on active duty in the U.S. Armed Forces or U.S. Coast Guard and sponsoring your spouse or child) of the Federal Poverty Guidelines for your household size from Part 5., Item Number 8., you do not need to include any other household member’s income. See Form I-864P for information on the Federal Poverty Guidelines.

 

To determine the filing requirements for your relatives included in Part 6., Item Numbers 8. - 19., follow the instructions below.

 

1. If you included the income of your spouse listed in Part 5., Item Number 3., any child listed in Part 5., Item Number 4., any dependent listed in Part 5., Item Number 5., or any siblings, parents, or adult children listed in Part 5., Item Number 7., each one of these individuals must be over 18 years of age and must complete Form I-864A.

 

2. If you included the income of the intending immigrant who is your spouse (he or she would be counted in Part 5., Item Number 1.), you must provide evidence that his/her income will continue from the current source after obtaining lawful permanent resident status. He or she does not need to complete Form I-864A unless he or she has accompanying children.

 

3. If you included the income of the intending immigrant who is not your spouse, (he or she would be counted on Part 5., Item Number 1.), evidence that his or her income will continue from a lawful source after obtaining lawful permanent resident status must be provided and the intending immigrant must provide evidence that he or she is living in your residence. He or she does not need to complete Form I-864A, unless he or she has an accompanying spouse or children.

[pushbrk 12,878]

3 minutes ago, seattlegc said:

thank for your replies.

 

Spouse has two minor children, so, i completed i-864A as in the Instructions for I-864 is states the following:

 

Item Numbers 8. - 22. Current Annual Household Income. This section is used to determine the sponsor’s household income. If your individual annual income listed in Item Number 7. is greater than 125 percent (or 100 percent if you are on active duty in the U.S. Armed Forces or U.S. Coast Guard and sponsoring your spouse or child) of the Federal Poverty Guidelines for your household size from Part 5., Item Number 8., you do not need to include any other household member’s income. See Form I-864P for information on the Federal Poverty Guidelines.

 

To determine the filing requirements for your relatives included in Part 6., Item Numbers 8. - 19., follow the instructions below.

 

1. If you included the income of your spouse listed in Part 5., Item Number 3., any child listed in Part 5., Item Number 4., any dependent listed in Part 5., Item Number 5., or any siblings, parents, or adult children listed in Part 5., Item Number 7., each one of these individuals must be over 18 years of age and must complete Form I-864A.

 

2. If you included the income of the intending immigrant who is your spouse (he or she would be counted in Part 5., Item Number 1.), you must provide evidence that his/her income will continue from the current source after obtaining lawful permanent resident status. He or she does not need to complete Form I-864A unless he or she has accompanying children.

 

3. If you included the income of the intending immigrant who is not your spouse, (he or she would be counted on Part 5., Item Number 1.), evidence that his or her income will continue from a lawful source after obtaining lawful permanent resident status must be provided and the intending immigrant must provide evidence that he or she is living in your residence. He or she does not need to complete Form I-864A, unless he or she has an accompanying spouse or children.

Right.  Sorry. I neglected to consider the children.  I'm not certain here children are CONSIDERED accompanying children, as they have their own petitions.  Did you submit three sets of financial forms?  I do NOT think the 864a is the actual problem though.

 

 

Edited February 16 by pushbrk

[seattlegc 36]

1 minute ago, pushbrk said:

Right.  Sorry. I neglected to consider the children.  I'm not certain here children are CONSIDERED accompanying children, as they have their own petitions.  Did you submit three sets of financial forms?

 

No, I filed separate I-130 for each child. They are from her first marriage, but are not Ukranian.

 

Their I-130s have not been approved.

 

 

[pushbrk 12,878]

1 minute ago, seattlegc said:

No, I filed separate I-130 for each child. They are from her first marriage, but are not Ukranian.

 

Their I-130s have not been approved.

 

 

I asked if you filed three I-864 packages, one for each immigrant.  I presume you did or you wouldn't have cleared NVC.

[seattlegc 36]

1 minute ago, pushbrk said:

I asked if you filed three I-864 packages, one for each immigrant.  I presume you did or you wouldn't have cleared NVC.

 

 

No, I did not. Only the one I-864 for Spouse.

 

Spouse is the only one who reached NVC stage.

[pushbrk 12,878]

4 minutes ago, seattlegc said:

 

 

No, I did not. Only the one I-864 for Spouse.

 

Spouse is the only one who reached NVC stage.

OK.  @Boiler asked about the 75k, and whether that's the amount she paid income tax on ie Profits.  I mentioned other potential problems for you to consider.  I still don't think the I-864a is the real problem.  It's something else.  Probably something Boiler or I mentioned.

 

Given the children haven't reached NVC, they are definitely NOT considered to be "accompanying" her.

 

 

Edited February 16 by pushbrk

[seattlegc 36]

1 minute ago, pushbrk said:

OK.  @Boiler asked about the 75k, and whether that's the amount she paid income tax on ie Profits.  I mentioned other potential problems for you to consider.  I still don't think the I-864a is the real problem.  It's something else.  Probably something Boiler or I mentioned.

 

That amount is SALARY she paid herself. We have proof that she paid this to herself through official TAX Returns.

[seattlegc 36]

23 minutes ago, Boiler said:

The 75k is what she pays taxes on? Is it salary or dividends.

 

As an aside why have you not gone I 134a?

Ohh and where does SA come into this.

She is Permanent Resident in Namibia. US Consulate in Johannesburg, South Africa handles Immigrant visas for Namibia.

[pushbrk 12,878]

Just now, seattlegc said:

That amount is SALARY she paid herself. We have proof that she paid this to herself through official TAX Returns.

You're going to need to enhance  your evidence.  Are their bank records showing these deposits?  What kind of business is this?  How will her absence impact future profits (from which her income will continue)?

[Boiler 45,486]

19 minutes ago, seattlegc said:

No, I filed separate I-130 for each child. They are from her first marriage, but are not Ukrainian.

 

Their I-130s have not been approved.

Why are they also not Ukrainian?