K-1 Income Requirements and Foreign Earned Income Exclusion

[rks_emelander 5]

Hi all, had a question regarding how the foreign earned income exclusion might affect our K-1 application? Just a quick overview:

 

- Filed I-129F in April 2024

- I lived abroad between 2012-2021

- Filed taxes every year, filing taxes

- Claimed the the foreign earned income exclusion each year

- Lived in the US mostly fulltime in 2022-2023

- Paid normal taxes those years

- Will be out of the country most of this year and likely to claim foreign earned income exclusion

 

My income is well over the requirements needed for K-1 sponsorship. Just wonder if either the past use of this tax feature or possibly using it this year will affect the income levels required for the K-1? If so, would the 2 previous years of normal resident taxes offset this?  Thanks!

Edited June 18 by rks_emelander

[EatBulaga 315]

@rks_emelander Your past Foreign Earned Income Exclusion should not matter as long as you have been filing your taxes, and can download your IRS return transcripts. 

 

How you will support your K1 beneficiary with your current income (foreign or resident) will need to be proven in the I-134 with the K1 and the I-864 with the AOS.

 

Edit: Also, if you plan to bring the K1 beneficiary to the US to live but you will be apart living abroad after marriage may raise some suspicion. So best be able to explain your strategy of how you plan to support and live together in a bona fide relationship. 

Edited June 18 by EatBulaga

[rks_emelander 5]

2 hours ago, EatBulaga said:

@rks_emelander Your past Foreign Earned Income Exclusion should not matter as long as you have been filing your taxes, and can download your IRS return transcripts. 

 

How you will support your K1 beneficiary with your current income (foreign or resident) will need to be proven in the I-134 with the K1 and the I-864 with the AOS.

 

Edit: Also, if you plan to bring the K1 beneficiary to the US to live but you will be apart living abroad after marriage may raise some suspicion. So best be able to explain your strategy of how you plan to support and live together in a bona fide relationship. 

 

Thank you for that input and glad to know that past returns won't affect it. But, is there any reason to think that this year's might if I also use the FEIE? I can demonstrate well above the required income, but following the FEIE adjustment, the Adjusted Gross Income essentially becomes 0. I don't know if it's AGI or just demonstrable income that is counted for the requirement?

 

Regarding your edit point, we do not plan to live apart. I will be returning to the US fulltime at the end of this year.

[EatBulaga 315]

34 minutes ago, rks_emelander said:

 

Thank you for that input and glad to know that past returns won't affect it. But, is there any reason to think that this year's might if I also use the FEIE? I can demonstrate well above the required income, but following the FEIE adjustment, the Adjusted Gross Income essentially becomes 0. I don't know if it's AGI or just demonstrable income that is counted for the requirement?

 

Regarding your edit point, we do not plan to live apart. I will be returning to the US fulltime at the end of this year.

Yes. For the K1, the consulates will look at both the AGI and demonstrable income. The three years of return transcripts for the I-134 are more to show the consulate that you have been filing your taxes regularly and don't owe the IRS some large sum.

The demonstrable income from your current employment determines your ability to support the K1 beneficiary going through the process to the AOS.  So include however many months of payslips as part of your I-134 up to the K1 interview.

The consulates can use both or any other provided financial evidence to decide if the K1 beneficiary is at risk of becoming a public charge.

 

The actual legally enforceable affidavit of support is the I-864 which is included as part of the I-485 Adjustment of Status after the K1 beneficiary gets married. So theoretically by then, the US citizen spouse should have more financial evidence to show support.

[rks_emelander 5]

2 hours ago, EatBulaga said:

Yes. For the K1, the consulates will look at both the AGI and demonstrable income. The three years of return transcripts for the I-134 are more to show the consulate that you have been filing your taxes regularly and don't owe the IRS some large sum.

The demonstrable income from your current employment determines your ability to support the K1 beneficiary going through the process to the AOS.  So include however many months of payslips as part of your I-134 up to the K1 interview.

The consulates can use both or any other provided financial evidence to decide if the K1 beneficiary is at risk of becoming a public charge.

 

The actual legally enforceable affidavit of support is the I-864 which is included as part of the I-485 Adjustment of Status after the K1 beneficiary gets married. So theoretically by then, the US citizen spouse should have more financial evidence to show support.

 

I am an independent contractor. My main income is paid from a US client through a monthly wire transfer, which I can certainly provide a long back record of as well as the annual 1099. However, no traditional payslips.

Edited June 19 by rks_emelander

[EatBulaga 315]

53 minutes ago, rks_emelander said:

 

I am an independent contractor. My main income is paid from a US client through a monthly wire transfer, which I can certainly provide a long back record of as well as the annual 1099. However, no traditional payslips.

Any supporting evidences are fine as long as they show you can meet the minimum requirements for your household number. If not, then need a joint sponsor.

See the I-134 instructions for supporting evidence. 

https://www.uscis.gov/i-134

 

I personally included a bank reference letter showing the total sum of deposits and total sum of withdrawals over the past 12 months. You can also list assets like home(s), 401K, Roth IRA, etc.

Or if you have foreign bank account(s), include a copy of your latest FinCen FBAR. Etc.

 

Again, the I-134 doesn't have to be definitive of your whole net worth since it is for the consulate. But the I-864 needs to be more definitive since it is for the USCIS. Many of the I-134 supporting evidence can be repeated for the I-864 since there are no guarantees that anyone at USCIS sees the I-134 after the consulate processed the K1 visa. So make extra copies of all your supporting financial evidences.

Edited June 19 by EatBulaga