Question about I-864: using income from the non USC spouse

[elie]

Hi everyone,
I am new to the forum, but I've been reading posts for a while and I should say they are GREAT. Incredibly helpful!

My husband and me are preparing to file all the AOS documents and here's our question. We're going to use only my income on I-864 (which is more than enough, over $40k). He is in law school (entered right after college) and didn't file taxes for the past 3 years. I am fresh out of college too, so this is my first year filing taxes. I worked before but those jobs were either unpaid internships or income was below the limit to file anything.

We do live in different cities at the moment, but we're setting up a joint bank account and making other arrangements. Our agreement financially is that I am helping him out while he's at school (his father provides for him mostly); he will take over financial responsibilities once he gets internships and/or graduates. Sidenote: we wouldn't want to use his dad as the I-864 co-sponsor.

There are 2 concerns. First, we don't live together at this moment. His school is in another state, but as I-864 instructions state this is not important and the non USC spouse's income can still be used on I-864 as far as I understand.

The other issue: I am on F-1 OPT EAD right now that is expiring closer to the end of June. So we're concerned that this might cause some problems, b/c I won't be able to work legally in the US --> once my EAD expires in June.

Do you think we should be fine with my income? or is there a reason to be concerned? If so, what do you suggest that we should do?

Both of us graduated from one of the top colleges. My non-USC parents have been helping me with my expenses and his USC parents have been sponsoring him while at school. It is unlikely that either me or him will have any difficulty getting jobs in the future: he after his graduation or in summer, and me once I get a new EAD (I already have other offers). This is a sidenote not really providing any legal evidence of income or anything *sigh*

Impatiently waiting for your advice! Many thanks!!

 

[dr_lha]

I believe the benefitiary's (i.e. foriegn spouse) income can only be used as part of the affidavit if they live with the petitioner (US citizen spouse), as it can they can then be counted as a household member.

If you don't live together this might cause issues. Even then, only have 1 year of income behind you might also cause issues. I'd personally prepare to get a co-sponsor. His parents would be the prime candidates.

 

[dr_lha]

I quote from the I-864 instructions part where it lists what income can be included on the affidavit:

Income from the intending immigrant, if that income will
continue from the same source after immigration, and if the
intending immigrant is currently living in your residence. If
the intending immigrant is your spouse, his or her income
can be counted regardless of current residence, but it must
continue from the same source after he or she becomes a
lawful permanent resident.

So actually, it looks like you're OK!

 

[elie]

Yup, read those lines many times and came to the same conclusion =)
Thank you for looking into this!

What about regading the 2nd part?.....my employment and hence my income is conditional to having an unexpired EAD what might not be the case at the end of June, July etc.

I am actually thinking about attaching a letter explaining how important it is for our family to get EAD fast as I am the primary provider these days...Perhaps this might speed up things a little??

Although there's no legal indication that it will, but a touchy letter helped when I was filing for F-1. I got my admissions documents really late back then, but my application was processed incredibly fast, in a little over 2 weeks I was ready to go....I mean fly.

 

[dr_lha]

Yeah, good point. If your OPT runs out in June, then you can officially legally work (a word of advice though, don't tell your employers about your EAD running out, just continue working if they don't notice).

Sadly you can't get EAD expedited, it takes around 90 days, no exceptions except for the very lucky. Your letter would fall on deaf ears. It can't hurt to try, but I doubt you'll get any results I'm afraid.

I think giving your OPT expiration, you might have a hard time proving your continued employment. I think you probably want to go the co-sponsor route, because if USCIS decides that you don't have enough evidence that you can cover the requirements of the affidavit, then they will issue and RFE and that will slow down the processing of your case, and most importantly, your EAD.

 

[Giovanni28]

Yeah, good point. If your OPT runs out in June, then you can officially legally work (a word of advice though, don't tell your employers about your EAD running out, just continue working if they don't notice).

Unfortunately, most mid-size/large companies utilize some sort of enterprise HR solution such as PeopleSoft. Peoplesoft, in particular, has the ability to track the date of your EAD expiration and alerts the HR department a month in advance of your EAD expiring. So, if you work in a fairly mid-sized company using an HR solution like this (most companies do), its not a question of whether they will notice, but what they will do about it, and how cooperative they will be.

Either way, be prepared for the possibility that you might have to terminate your employment during the gap between the EADs. If your supervisor/manager doesn't consider you a pain in the ass, they might just be willing to let you work regardless and pay you when you EAD arrives.

Good luck!

 

[dr_lha]

Unfortunately, most mid-size/large companies utilize some sort of enterprise HR solution such as PeopleSoft.

Yes, my point was, don't volunteer the information that your EAD is expiring. They might not notice, and it doesn't harm your AOS application in any way to work "illegally".

 

[elie]

In fact I work for a huge corporation and the situation is quite complicated. They do know that my EAD expires (they knew that from the day I was hired). They even applied for an H1B for me which I don't really need now (not sure if I'll get it since this year it's a big lottery). The worst thing is that they actually insist on shipping me abroad for a few months to avoid a gap in employment (they care more about being understaffed rather than my life plans). They insist on this relocation even now, after they found out that I am applying for a family-based GC.

Now, as far as I know, I should not leave the country under any circumstances while my application is pending. Is that right? I looked at I-131 but not sure if it's gonna help in my case.