Establishing evidence of domicile and continued income

[Rod James 0]

Hi, I'm new on this forum. There are a lot of acronyms being used on these forums and I currently am catching a little over half of them. I hope i'm in the right place.

Here is our situation and my questions:

I, Rod, am the Canadian immigrant and my wife is the US Citizen. We have been married 10 years and lived all those years in BC, Canada and have had 4 children together. We are planning to move down to Oregon to live close to where her parents live (within a few blocks). Our children all have their US status after filing for Birth abroad. I have worked as a freelance graphic designer for 15 years and plan to continue working in this capacity in the US. We finishe our I-130, packet 3 and now have an interview date and are working on the medical and gathering any other evidences that may help.

Now for the questions:

1. We are trying to determine how to establish the US as my wife’s country of domicile. We have just sold our house but do not receive the funds or give over possession of the house until after the interview. We home school our children so registering our children in a school in Oregon will not work for us at this time. The instructions on the I-864 paperwork indicate the signing of a lease as one of the concrete steps that help to establish intent to be domiciled in the US but other instructions clearly state that we should not change our living arrangements or commit to any change of address until after the interview. Is a rental/lease agreement with a deposit (to begin tenancy after the interview) necessary or is the sale of our current home and the length of our marriage and number of kids enough to demonstrate our intention to move together? Or is there something else i haven’t thought of that could help with this (i.e. joint US bank account, joint membership at a gym in Oregon, etc.)?

2. My wife has been a homemaker for the past 7 years raising and homeschooling our children. We do some income splitting as she provides some creative consulting with my design business and our household income will be the primary consideration for sponsorship (I-864). I will be continuing to work for current clients (US and Canadian) and even new local Canadian clients upon moving to the US. Proximity is not necessary in my line of work with modern technology. Now to establish proof that my current source of income will continue would it suffice to have my two largest and most consistent clients write letters of their intent to continue using my services into the future since I provide a unique service to them which would be difficult to replace? It would be difficult to prove this any other way as a freelance designer not working for an employer in the conventional way.

3. Connected to question 2, we are unsure at this point whether Kendra (wife, USC) is required to have filed income tax in the US for the past few years where she has been living in Canada with no US income. Are tax returns with zero taxable income in the US relevant to our process or is it more important that we bring her Canadian tax returns showing the income that we are wanting to be considered for sponsorship requirements?

4. Question 24e in form I-864 states that the person listed (me, the immigrant) does not need to complete Form I-864 because he/she is the intending immigrant and has no accompanying dependents. This question confuses me because we do have 4 children accompanying us who are dependents of ours but since they already have US citizenship status am I correct in assuming that they don’t count as “accompanying dependents” in this case?

Thank you all for any advice or experiences you can offer to shed some light,j

Rod.

[trailmix 77]

Hi and welcome!

1. We are trying to determine how to establish the US as my wife’s country of domicile. We have just sold our house but do not receive the funds or give over possession of the house until after the interview. We home school our children so registering our children in a school in Oregon will not work for us at this time. The instructions on the I-864 paperwork indicate the signing of a lease as one of the concrete steps that help to establish intent to be domiciled in the US but other instructions clearly state that we should not change our living arrangements or commit to any change of address until after the interview. Is a rental/lease agreement with a deposit (to begin tenancy after the interview) necessary or is the sale of our current home and the length of our marriage and number of kids enough to demonstrate our intention to move together? Or is there something else i haven’t thought of that could help with this (i.e. joint US bank account, joint membership at a gym in Oregon, etc.)?

Although they say not to commit to moving until you have your visa in hand - they don't really mean that lol - well they do and they don't - it's a contradiction for sure.

Where will you stay when you arrive in the U.S., will you stay with her parents? We have noticed (here in this forum) that in terms of reestablishing domicile it is very important to have a lease somewhere. If this means having her parents write up a lease and sending it to you, then you should do that. Absolutely take a document proving that you have sold your house.

You may want to have a look at this thread, including the last few posts, with links to people who have been asked to provide more proof of reestablishing domicile.

Proving domicile when not living in the U.S., Even if you have never lived in the U.S.

2. Now to establish proof that my current source of income will continue would it suffice to have my two largest and most consistent clients write letters of their intent to continue using my services into the future since I provide a unique service to them which would be difficult to replace? It would be difficult to prove this any other way as a freelance designer not working for an employer in the conventional way.

Technically it should.

3. Connected to question 2, we are unsure at this point whether Kendra (wife, USC) is required to have filed income tax in the US for the past few years where she has been living in Canada with no US income. Are tax returns with zero taxable income in the US relevant to our process or is it more important that we bring her Canadian tax returns showing the income that we are wanting to be considered for sponsorship requirements?

Yes, she is required to file U.S. returns or explain (for the I-864 affidavit of support) why she didn't - and it has to be a valid reason. Basically each year, in the instructions for the 1040 tax return, it states who must file based on income cut offs (which are very low) - they vary dependant on filing status - married filing separately etc etc. You will need to look at the instructions for the last 3 tax years and see if she falls under the cutoff amount (Canadian gross income converted to U.S. dollars).

If she does, then she needs to attach a note to the I-864 explaining - ie: I was not required to file a tax return in 2006 as my income was less than $ 3800.00 U.S. - she may also attach the Canadian return in this case, to prove that she fell under the cut off in the guides.

If she didn't earn less than the cut off amount then she absolutely must file the returns, it is required.

4. Question 24e in form I-864 states that the person listed (me, the immigrant) does not need to complete Form I-864 because he/she is the intending immigrant and has no accompanying dependents. This question confuses me because we do have 4 children accompanying us who are dependents of ours but since they already have US citizenship status am I correct in assuming that they don’t count as “accompanying dependents” in this case?

I'm not sure, but i'm sure someone else can answer this one!

Edited November 13, 2009 by trailmix

[Rod James 0]

thank you so much for your input Trailmix. Do you happen to know if we would be able to file income tax for her now (late) for the previous year and then take a copy of what we filed or do we need to get something back from the US government? I'm hoping we can file for last year and take just the one statement as the I-864 seems to indicate that is all that is necessary. If we have to get something back that could be a problem.

thanks.

[trailmix 77]

You're welcome - how long until your interview?

Yes you only need to present 1 tax return as evidence, that is true - however there are two other things to consider:

- It is an absolute requirement for the I-864 that you file returns for the last 3 years.

- They may ask you for the other two years as well (it happens and not infrequently - my Husband was asked for the additional transcripts - some people are not asked). On the day of his interview the CO had a list of things he wanted - those other two years of returns were on that list. If he hadn't had them - I don't think the visa would have been issued right away.

Yes they will probably accept a copy of the 1040 plus slips (yes, even if they are Canadian slips). Technically, according to the instructions, you are supposed to have something from the IRS confirming that you have filed that return late - now how sticky they will be about that - i'm not sure. The I-864 is a legally binding document and it states that you must have filed if you were required to do so.

From page 8 of the I-864 instructions:

If you were required to file a Federal income tax return during any of the previous three tax years but did not do so, you must file any and all late returns with IRS and attach an IRS-generated tax return transcript documenting your late filing before submitting the I-864 Affidavit of Support. If you were not required to file a Federal income tax return under U.S. tax law because your income was too low, attach a written explanation.

Edited November 13, 2009 by trailmix

[Rod James 0]

Yikes, my interview is Dec. 21

I hope there's some way to expedite an IRS transcript back into our hands. I would not even have known to prepare this if it weren't for this website and your help so thank you SOOOOO much.

Maybe i should plan a contingency...do you recall if it's possible for my wife (the USC) to be my petitioner but not the sponsor? I could have one of her parents or brother be the primary sponsor and then perhaps her tax filing oversight would not be a factor?

working the angles here...

[Malrothien 6]

The petitioner HAS to be the primary sponsor. You can request the transcripts be faxed to you.

[trailmix 77]

Yes, as Malrothien mentioned, your wife has to be the primary sponsor. I understand trying to work the angles - working the angles pops up on this board regularly - trust me, if there was an angle here we would have found it and someone would have posted it for you - there isn't when it comes to the tax returns.

They can fax you the transcripts, as Malrothien also mentioned, but as your interview is only a 5 weeks away, i'm not sure that the return would actually be completed by then. I can't remember exactly (I also had to file 3 years worth of returns) - but I think it took them a few months to actually do them.

As you are filing back a few years, you, obviously, have to send a manual tax return, so even the mailing time - then it is, of course, manually processsed - so I think it would be lucky if you could actually get a transcript of the return in time for the interview.

If you can't here is what I would recommend.

- That you have a copy of the 1040 and any corresponding slips for each year - that she will have filed at that point. (Oh and ensure her gross income for the year, which will be entered on the I-864 matches her gross income on the tax return. The instructions are a bit misleading when foreign income is involved because, unless she made around 80 thousand last year, her bottom line on the U.S. return will be zero - if you followed the instructions to the letter you would be entering zero on the I-864 - that is not what they 'really' want).

- Although the instructions say - do not present foreign returns - do have on hand, at least, your Canadian notice of assessment for each tax year (for both of you) and any income slips that relate to that.

Edited November 14, 2009 by trailmix

[Malrothien 6]

Hmm, didn't even think of processing times. Trail is right, though, make sure you have a copy of all returns filed.

[Rod James 0]

- That you have a copy of the 1040 and any corresponding slips for each year - that she will have filed at that point. (Oh and ensure her gross income for the year, which will be entered on the I-864 matches her gross income on the tax return. The instructions are a bit misleading when foreign income is involved because, unless she made around 80 thousand last year, her bottom line on the U.S. return will be zero - if you followed the instructions to the letter you would be entering zero on the I-864 - that is not what they 'really' want).

when you mention to have a copy of the 1040's that we will have filed at that point you mean the last three years that we will be filing late, as opposed to ones she already filed before moving to Canada, correct? I didn't realize it took so long for IRS to process after they are filed...would e-filing be any better perhaps? we are planning to go to a US accountant on monday and thought maybe having these filed by a certified accountant would be more acceptable (and considered credible) than by filing ourselves.

[Rod James 0]

Oh, and what do you mean by slips with the 1040's? If she has no US income for those years I would assume there are no slips like W2's or whatever.

And is it enough just to bring Notices of Assessment for our Canadian income instead of the full tax filing forms? that would be great because a full set of Income Tax papers is like 20 pages or more for each of us every year. then to make extra copies means a whack of paper. They don't need that much detail do they?

You guys are so awesome and helpful...if only i had discovered this place when I started.

[Malrothien 6]

- That you have a copy of the 1040 and any corresponding slips for each year - that she will have filed at that point. (Oh and ensure her gross income for the year, which will be entered on the I-864 matches her gross income on the tax return. The instructions are a bit misleading when foreign income is involved because, unless she made around 80 thousand last year, her bottom line on the U.S. return will be zero - if you followed the instructions to the letter you would be entering zero on the I-864 - that is not what they 'really' want).

when you mention to have a copy of the 1040's that we will have filed at that point you mean the last three years that we will be filing late, as opposed to ones she already filed before moving to Canada, correct? I didn't realize it took so long for IRS to process after they are filed...would e-filing be any better perhaps? we are planning to go to a US accountant on monday and thought maybe having these filed by a certified accountant would be more acceptable (and considered credible) than by filing ourselves.

You only need the last 3 years for immigration. You can't e-file returns filed by US citizens living abroad (I am one). Your wife needs to file a 1040 and a 2555EZ for each year she has lived abroad. It's really easy to do and you shouldn't need an accountant to do it. She also needs to file for an ITIN (a tax ID number) for you.

Oh, and what do you mean by slips with the 1040's? If she has no US income for those years I would assume there are no slips like W2's or whatever.

And is it enough just to bring Notices of Assessment for our Canadian income instead of the full tax filing forms? that would be great because a full set of Income Tax papers is like 20 pages or more for each of us every year. then to make extra copies means a whack of paper. They don't need that much detail do they?

You guys are so awesome and helpful...if only i had discovered this place when I started.

If she has no slips, then don't bring them. Abroad citizens could still have slips - 401K, IRA, etc. Notice of Assessments would be fine as they list all relevant information.

[trailmix 77]

Yes, I was really just using the 'slips' as an example. I understand from what you said that your wife 'works' for you (income splitting, as you mentioned) and that you are self employed.

If you are only going to present the 1040 (rather than a transcript) I would recommend that you bring the supporting document(s) for that income. Kind of a - however you proved her income to CRA - those are the documents/slips/invoices she will need to have accompany her 1040/I-864.

For you, as you are the main income earner and you are basically relying on your continuing income for support with regard to the I-864 - you also need to bring your tax returns to prove that, as you mention. You are basically the joint sponsor here, your income will be included on the I-864 - so in fact I would recommend that you bring your entire tax return. You don't necessarily need to present that right away, you may just want to bring your notice of assessment and give them that if they ask for it - but have the returns as back up in case they ask for those.

Oh and I never got a ITIN for my Husband, I just filed - married filing separately, to keep things simple, since his income is basically irrelevant to the returns I filed before we moved to the U.S.

[Rod James 0]

Malrothien, i agree that the paperwork doesn't look too complicated to fill out ourselves but my thinking is a) time is of the essence and i want to be sure of what i submit (not even sure if we should use 2555 or 2555EZ) and B) perhaps it will appear more authoritative to the immigration officer knowing that someone certified has reviewed and submitted our returns (less likely to be incorrect). Perhaps the accountant would also know how we might expedite things?

Trailmix, is the ITIN number something i will need after entry to the US but not necessary for the interview? We definitely were planning just to file her income with the 1040's with the thought that my income is not yet relevant until I become a resident.

we are working on enrolling our children in a homeschool program in Oregon and also checking into a rental agreement that would give us some paperwork before the interview but begin tenancy on February 1st. if we can't find such a rental agreement then we will have her parents draw up a rental/tenancy agreement for us at their address. Hopefully something like this will work.

I'm curious if anyone has experience being rejected for not having the IRS transcripts for filing late. trying to measure my chances a bit. I realize that each officer has the power to decide how they see fit on our case but i'm curious to know if there's still a good chance we'll get through without the transcripts. the trip to Montreal will cost us around $2000 and it's not something we want to see thrown away, but at this point everything is moving ahead and would be very difficult to postpone the interview.

I keep saying thank you and it might sound redundant, but i'm really so grateful for this information you both are offering that is critical to our case.

[Malrothien 6]

I only have a copy of my 2008 filing since I filed late - NVC didn't seem to mind.

You should use the EZ since she has no income, etc. I've filed mine since moving to Canada. It's not going to make much difference to the CO who filed it, just as long as it gets filed. It was a bit annoying for me the first time due to my having income here in Canada, but if your wife has 0, you just carry 0's down the entire 1040. Sign and send off.

[trailmix 77]

I can understand your wanting to see an accountant about the returns, as Malrothien mentioned - they aren't hard, but they are time consuming - not once you know what you are doing, it's all the reading you have to do to make sure you do know what you are doing (well that was my experience anyway).

Yes even a rental agreement from your parents is better than no lease.

You won't need the ITIN once you have moved as you will have a SSN and that is all you will need for your income tax returns. In a nutshell the ITIN is just a number to identify someone to the IRS when they don't have a SSN.

I have never heard of anyone being rejected for not having transcripts for filing late. That doesn't mean it has never happened, just that I haven't read about it.

The trip to Montreal will not be a waste (well I mean really it is anyway - but lol) - even if they send you away on the day and request more information from you, you won't have to make a trip back - they will just ask you to submit it to them before they issue the visa. The downside to that, of course, is that when that visa will be issued is so up in the air. There are a few people here who were sent away from their interview with a request that they submit more evidence of reestablishing domicile - several weeks later, after sending that info - they are still waiting.

But, postponing is not a good move - because A. Worst case scenario you end up having to submit more information B. You might just go to the back of the line if you do.