Question about I-130 and I-864

A

albertoavena

New Member
My wife and I are filing the I-130 but realized that the I-130 is for the US citizen living in the U.S. already and the spouse overseas.

We both live overseas (Japan) and I don't live in the US and haven't for many years. We don't have a place we can call our own and we were planning on using a family members house for the time being in the application.
Japan doesn't have or offer Direct Consular Filing (DCF) services and have been told to send all the paperwork to the Chicago lockbox.

Is this OK? Can I continue using this document?

About the I-186, based on some checklist I've seen, I will need the I-864 for the interview and this is also written. "I-864 Affidavit of Support Form along with past 3 year U.S tax returns (or transcripts) and any other financial documents required."

I've been living here before and after marriage (in Japan) and haven't worked in the U.S. for many years. I also don't have a job in the U.S. yet and wasn't thinking about looking for work until after the interview and the OK from immigration to move.
Will this be a problem? I have no idea where to get my U.S. tax returns.

Please advise.
 
To start with, the tax return question (since this may be the most important): As a US citizen, you are normally required to file US income tax returns every year on your worldwide income regardless of where you live. It does not matter where you live or where you work or whether you lived or worked in the US or anywhere else. You must file US income tax returns, exactly the same as if you lived and worked in the US. There are a very few limited exceptions to this rule, the main one being if you didn't earn enough money during the tax year, normally $10150 USD for singles and $20300 for married couples.

If, as I suspect, you were required to file US income tax returns and you didn't file them, then you won't be allowed to sponsor anyone for a green card until you correct the error. File the overdue tax returns as soon as possible, even though they're late.

If you didn't earn enough money to be required to file US income tax returns, then you probably also didn't earn enough money to meet the minimum income requirements for sponsoring anyone for a green card. In this case your lack of tax returns can be excused (attach a statement stating that you didn't earn enough money), but you'll need a joint sponsor in order to sponsor anyone for a green card.

Now, assuming that you can get the tax issue sorted out, you (the US citizen) need to file I-130, along with G-325A biographical information for you and your spouse.

You'll have an initial interview at your closest US consulate to determine eligibility. At the initial interview, they will mainly focus on one question: Do you currently reside in the United States, or are you planning to move to the United States after getting her green card? If eligible, you will then file I-864 affidavit of support, and your wife will file DS-260 Immigrant Visa Electronic Application (online). Then you will have another interview at the US Embassy in Tokyo where they will evaluate your marriage: Is your marriage a good-faith marriage, one that was entered into for legitimate reasons such as love or family and not a marriage arranged solely for the purpose of obtaining a green card?

In order to get her a green card, it is very very important that you convince the officials you are either living in the USA or intend to move to the USA permanently very soon. The legal basis for issuing green cards to spouses is family reunification: if you (the US citizen) are living in the US, and your wife is not living in the US, then the law allows you to ask for a green card for your wife, in order that you can both live together in the US. However, if you are not living in the US, then this logic does not apply; and since the only possible legitimate function of a green card under the law is to let your wife live in the US, it follows that if you are not living in the US and have no plans to live in the US, then there is no possible family reunification scenario that a green card could solve. In this case your request for a green card will be rejected.
 
Thank you very much for your informative reply.

Considering I was a student more than half the time of already being here, I can't imagine I 'd owe too much (If I owe). I'm looking into that right now and am looking for some tax services here in Japan to help me.
In the mean time, can I file everything else and while waiting for an interview date, get the tax problem sorted out? Or should I file all my taxes first, then file the I-130 and the other documents?

I do want to be as efficient as possible and am looking at all the possibilities.
 
You need to determine if you have a tax problem before you apply for sponsorship. If you have a tax problem, then you need to sort it out before you can sponsor, since the sponsorship application requires your tax documents.

If you don't have a tax problem because you didn't earn enough money, then you might have a different problem: you might not have earned enough income to sponsor anyone. In this case you'll need a joint sponsor before you can apply for sponsorship.
 
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