I-864 Affidavit of Support Now Requires Only One Tax Return Posted Jan 06, 2006 ©MurthyDotCom Under recently-revised policy, the Affidavit of Support (I-864) form that is used in immigrant visa cases requires the tax return only for the most recent tax year. The law, as it is written, requires three years of federal tax returns. The Department of Homeland Security (DHS) has the discretion, however, to allow the submission of only one tax return for the most recent tax year. The USCIS, therefore, is taking the approach that only one tax return is needed. The change applies to cases filed after November 23, 2005. ©MurthyDotCom Applicable Only to Form I-864 ©MurthyDotCom The change applies only to the I-864 Affidavit of Support. This does not affect procedures for the Form I-134 Affidavit of Support that is used in certain nonimmigrant cases and with some I-485 filings for dependents. The I-134 is often used in nonimmigrant visa applications at the consulate. The I-864 is a requirement for family-based permanent immigration cases, as well as certain employment-based immigration cases in which a family member owns at least five percent of the sponsoring employer entity. ©MurthyDotCom Evaluation of Financial Ability to Sponsor ©MurthyDotCom Since the purpose of I-864 is to determine whether the prospective immigrant has sufficient financial support, the sponsor can still choose to submit three tax returns if those returns will increase the likelihood that an examiner will view the sponsor as able to provide the needed support. This might be advisable if the income in the most recent tax year is on the borderline of being sufficient while the past years show greater income. ©MurthyDotCom Test to Satisfy Financial Ability ©MurthyDotCom The sufficiency of income is determined based upon whether the sponsor has the means to maintain an annual income at or above 125 percent of the poverty guidelines. (This is reduced to 100 percent for active-duty military personnel who are sponsoring spouses and/or children.) For more information on the matter of poverty guidelines, please review our February 25, 2005 MurthyBulletin article, Poverty Guidelines for 2005 Released!, available on MurthyDotCom. The adjudicator must apply the poverty guideline for the year in which the I-864 is filed. ©MurthyDotCom If Most Recent Year Shows Insufficient Income ©MurthyDotCom If the tax return reveals that the current income is sufficient, the case should move forward without a Request for Evidence (RFE) on the I-864. The adjudicator can request more evidence, such as an employment letter, pay stubs, and financial information if the tax return shows income below the required level and there is no other proof to show that the sponsor meets the requirements. The adjudicator can also issue an RFE if there is some reason to disbelieve the veracity of the documents submitted. ©MurthyDotCom If the adjudicator finds that the income for the last tax year is not sufficient, s/he should then ask for proof relating to the current year's income. If this is sufficient, then the case can be approved. ©MurthyDotCom Affidavits Filed with Application ©MurthyDotCom The Affidavit of Support must be filed with each application requiring the Form I-864. Previously, local offices were somewhat flexible and had different policies on this matter. It was acceptable in some jurisdictions to simply present the Affidavit of Support at the local interview in family-based cases. Those whose cases were filed without the Affidavit, before issuance of the Memo, will be allowed to present the completed I-864 with the required evidence at the interview. ©MurthyDotCom Conclusion ©MurthyDotCom The above is a change in procedure only. It is still necessary to overcome public charge provisions under law to sponsor a relative for permanent residence in the U.S. If the sponsor does not work or does not make sufficient income, it is possible to use a qualifying joint sponsor or other proof of assets. Questions related to this matter should be discussed with an experienced, knowledgeable immigration attorney. If you do not have an attorney, please contact our law firm at <law@murthy.com>. The Murthy Law Firm is happy to assist in such cases. Copyright © 2006, MURTHY LAW FIRM. All Rights Reserved
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