Question about non-taxable income and I-864

[Shana131]

I am an American citizen and resident who is married to a lawfully admitted French citizen. He received his Work Permit with no problems and our AOS Interview on January 28, 2008 went very well and the interviewing officer approved our petition.

However, because my income, prior to July 11, 2007 was non-taxable, the Field Office Director sent us a form letter saying we need a Joint-Sponsor.

We are searching for a Joint-Sponsor, but in the meantime, I sent the Director, by Certified Mail, one pound of documents that I sent with my initial evidence along with my I-864 and that I offered to the interviewing officer, who didn't even want to see it. He said things were fine as they were. I sent notarized declarations that the money was a non-taxable gift, copies of the wire transfers, the relevant IRS Code and other publications that say I did not even have to file a return until this year. My income is far in excess of the 125% over-the-Federal-poverty-guideline limit.

I wondered if anyone else had ever shown they could support a spouse with non-taxable income and what the outcome was. In addition, my spouse is now working and his income alone is sufficient. Together, we could support a dozen or more immigrants. The sticking point with this director seems to be that until July 11, 2007, it was non-taxable income. I feel I've proved, by a preponderance of the evidence (the USCIS rule) that I didn't need to file (the IRS says I didn't) and that my income is sufficient. Neither my husband nor I have ever committed a crime and his background check was clean. Everything was great but my lack of tax returns despite the fact that the IRS says I should not have filed.

Thank you.

 

[austriacus]

I don't think it should be an issue whether it's taxable or non-taxable. As an example, let's say someone makes $25,000 but contributes $15,000 to a 401(k) in a particular year, their taxable income would only be $10,000. However, their income is still $25k and they could choose to not fund a 401(k) for future years. I don't see anything in I-864 or rules related to it that the "current income" that you claim has to be taxable income (even though for 99% of people it probably is!).

However, the non-taxable income you've received, is this recurring current income or was that a one time gift? Does the preponderance of evidence show that you'll likely continue to receive this income for 2008 and beyond?

Another consideration would be that, if your income is far in excess of the 125%, and you have it available as assets (only certain assets qualify), could you qualify by 3 x 125% poverty income in assets? Is my understanding that your income is taxable now? They are supposed to look at your current (2008) income and not prior income. Can you provide pay stubs or an employer letter as proof of current income? Or can your husband?

Is the USCIS's problem with the approval the "current income" or that you didn't file tax returns? ... I guess you could file 1040X for the last three years showing $0 income and $0 tax for the heck of it to make USCIS happy.

If you don't mind me asking, I'm curious as to the general nature of the non-taxable income ... but you don't have to answer if you want to keep it private.

 

[Shana131]

I don't think it should be an issue whether it's taxable or non-taxable. As an example, let's say someone makes $25,000 but contributes $15,000 to a 401(k) in a particular year, their taxable income would only be $10,000. However, their income is still $25k and they could choose to not fund a 401(k) for future years. I don't see anything in I-864 or rules related to it that the "current income" that you claim has to be taxable income (even though for 99% of people it probably is!).

However, the non-taxable income you've received, is this recurring current income or was that a one time gift? Does the preponderance of evidence show that you'll likely continue to receive this income for 2008 and beyond?

Another consideration would be that, if your income is far in excess of the 125%, and you have it available as assets (only certain assets qualify), could you qualify by 3 x 125% poverty income in assets? Is my understanding that your income is taxable now? They are supposed to look at your current (2008) income and not prior income. Can you provide pay stubs or an employer letter as proof of current income? Or can your husband?

Is the USCIS's problem with the approval the "current income" or that you didn't file tax returns? ... I guess you could file 1040X for the last three years showing $0 income and $0 tax for the heck of it to make USCIS happy.

If you don't mind me asking, I'm curious as to the general nature of the non-taxable income ... but you don't have to answer if you want to keep it private.

Thank you.

Sorry to quote your whole response, but I couldn't remember everything you wrote.

The non-taxable income was a gift from my then husband to me and gifts from a husband to a wife aren't taxable according to the IRS. He received absolutely nothing in return for the money. I helped him start his own business in 1996 and he's simply grateful, I guess. We separated in 2001, but there was no formal separation agreement and no oral or written order for him to pay maintenance. I didn't even ask for the money as I was staying with my brother and didn't need it.

Yes, the preponderance of the evidence shows that I will be able to provide support as I have an employment contract at $39,000/year that runs until 2022. I provided a letter from my employer and my husband also provided a letter from his employer, but the interviewing officer didn't even look at them. He just listened to my explanation of why the income was non-taxable and waved it away and said, "Oh, that's fine then."

I don't know, since I got a form letter, but I feel the director's problem lies with the fact that I didn't have taxable income for the past three years. I had to put $0.00 on the I-864, but I did attach an explanatory letter and I took copies of $52,000 (2007), 48,000 (2006) and $40,000 (2005) worth of wire transfers as monetary gifts, plus a sworn statement saying they were gifts from my ex-husband.

 

[asPapi]

I am an American citizen and resident who is married to a lawfully admitted French citizen. He received his Work Permit with no problems and our AOS Interview on January 28, 2008 went very well and the interviewing officer approved our petition.

However, because my income, prior to July 11, 2007 was non-taxable, the Field Office Director sent us a form letter saying we need a Joint-Sponsor.

We are searching for a Joint-Sponsor, but in the meantime, I sent the Director, by Certified Mail, one pound of documents that I sent with my initial evidence along with my I-864 and that I offered to the interviewing officer, who didn't even want to see it. He said things were fine as they were. I sent notarized declarations that the money was a non-taxable gift, copies of the wire transfers, the relevant IRS Code and other publications that say I did not even have to file a return until this year. My income is far in excess of the 125% over-the-Federal-poverty-guideline limit.

I wondered if anyone else had ever shown they could support a spouse with non-taxable income and what the outcome was. In addition, my spouse is now working and his income alone is sufficient. Together, we could support a dozen or more immigrants. The sticking point with this director seems to be that until July 11, 2007, it was non-taxable income. I feel I've proved, by a preponderance of the evidence (the USCIS rule) that I didn't need to file (the IRS says I didn't) and that my income is sufficient. Neither my husband nor I have ever committed a crime and his background check was clean. Everything was great but my lack of tax returns despite the fact that the IRS says I should not have filed.

Thank you.

Since your interview was held on 1/28/08 the IO will be looking at Form I-864 income for 2006.

1. Did you work in 2006?
2. Did you file taxes in 2006?
3. If you did, was your AGI above the guidelines?
4. When did your husband start working?

You have represented to the USCIS, that your pre July 11 funds were a gift and not income. Since a gift is not expected to continue, the IO has disregarded the "gift" for I-864 purposes. A gift is always discretionary.

Depending on your responses, I would get a joint sponsor unless your assets can make up for the shortfall as austriacus has suggested.

 

[austriacus]

Hm, that's strange then. They are supposed to examine your current (2008) income and compare it to 125% poverty level. I'm not even sure how the non-taxable income issue came up because you showed 0.00 for previous years and submitted an explanation that your taxable income was below the threshold, right? Perhaps you disclosed the non-taxable income to them in hopes it would help your case, but maybe it confused them more than it helped? (I think disclosing one-time gifts wouldn't help your situation anyway, no matter how large, unless you include them as assets.) Or, perhaps you felt the need for full disclosure of your income.

Anyway, why would you need a joint sponsor if you have $39,000 current income?? I'm assuming you put $39,000 on the line for "current income" and provided pay stubs??

I'll just take a guess, that USCIS might believe you failed to file tax returns and that's why they don't accept your I-864 (but then they shouldn't accept it at all, and ask you to file your prior returns, rather than ask for a joint sponsor).

Maybe make an infopass to clarify why they don't accept the I-864?

 

[Shana131]

Thank you for the advice and information.

No, I did not work in 2006. No, I did not file taxes in 2006. Yes, my AGI was above the guidelines. No, my husband did not begin working until January 2008. I have assets that make up the difference, though I do think we've found a joint sponsor. Not sure, but I think so.

I do have an Employment Contract that guarantees me $39,000/year through 2022, though, so the director should know there's no danger of my husband becoming a public charge.

Thank you again.

 

[Shana131]

Hm, that's strange then. They are supposed to examine your current (2008) income and compare it to 125% poverty level. I'm not even sure how the non-taxable income issue came up because you showed 0.00 for previous years and submitted an explanation that your taxable income was below the threshold, right? Perhaps you disclosed the non-taxable income to them in hopes it would help your case, but maybe it confused them more than it helped? (I think disclosing one-time gifts wouldn't help your situation anyway, no matter how large, unless you include them as assets.) Or, perhaps you felt the need for full disclosure of your income.

Anyway, why would you need a joint sponsor if you have $39,000 current income?? I'm assuming you put $39,000 on the line for "current income" and provided pay stubs??

I'll just take a guess, that USCIS might believe you failed to file tax returns and that's why they don't accept your I-864 (but then they shouldn't accept it at all, and ask you to file your prior returns, rather than ask for a joint sponsor).

Maybe make an infopass to clarify why they don't accept the I-864?

Yes, I think disclosing the non-taxable income confused more than it helped and I probably should have listed the money as an asset, however since it came monthly for six years, it seemed more like income to me. But I'm no expert, as I've shown. I did feel the need for full disclosure and I think that confused more than it helped.

I did provide proof that my current income is $39,000/year and will continue through 2022, but I honestly don't think they looked at that. I think they just looked at the $0.00 for taxable income for the last three years and decided I needed a joint sponsor. I'm hoping the clarification I sent in will be enough, but at any rate, I do think we've perhaps found a joint sponsor.

I very much appreciate the help and clarification. Thank you.

 

[austriacus]

Since your interview was held on 1/28/08 the IO will be looking at Form I-864 income for 2006.

1. Did you work in 2006?
2. Did you file taxes in 2006?
3. If you did, was your AGI above the guidelines?
4. When did your husband start working?

You have represented to the USCIS, that your pre July 11 funds were a gift and not income. Since a gift is not expected to continue, the IO has disregarded the "gift" for I-864 purposes. A gift is always discretionary.

Depending on your responses, I would get a joint sponsor unless your assets can make up for the shortfall as austriacus has suggested.

asPapi, I think the "three most recent tax years" would depend on whether they brought a new I-864 to the interview or used the one presumably submitted in 2007. If they submitted a new I-864 with a 2008 date I think they could legitimately use 2007, 2006, and 2005 as most recent tax years.

Why did you ask her if her 2006 income was above the guidelines? I don't think it's required that a prior year's AGI be above any guideline, at least it's not stated anywhere. (But I agree it might make for a stronger case.)

 

[austriacus]

It may be better to give in and have a joint sponsor than to fight this with USCIS on who's right and who's wrong. I think you're absolutely right that you don't need a joint sponsor but USCIS seems confused. Sometimes when USCIS gets confused, it may be better to do what they ask to avoid them from getting further confused. I suppose it's the IO's judgement call whether he or she considers the I-864 evidence sufficient or not. If they don't accept your 39,000 a year for whatever reason they probably ain't happy with including your husband's new job income either, so the only other route would be to reveal your substantial assets. That's quite a long employment contract you have there, by the way! Some companies don't even stay in business that long!

 

[asPapi]

asPapi, I think the "three most recent tax years" would depend on whether they brought a new I-864 to the interview or used the one presumably submitted in 2007. If they submitted a new I-864 with a 2008 date I think they could legitimately use 2007, 2006, and 2005 as most recent tax years.

Why did you ask her if her 2006 income was above the guidelines? I don't think it's required that a prior year's AGI be above any guideline, at least it's not stated anywhere. (But I agree it might make for a stronger case.)

My comments are based on her interview date being close to mine.

I had my interview on 1/15/08. I did take along 2007 W2's and income information, which the IO disregarded.

Now according to the IO and I did question his logic, I was told that the applicable year to my case was 2006 since I submitted my petition in July 2007. So if the AGI on the 2006 taxes is above 125% of poverty level, then that's fine as long as I had submitted paystubs for the year I applied which was 2007.

In the OP's case, she had $0 income and was not required to file 2006, 2005, 2004 and both husband and wife had no income from employment during the year they applied.

 

[Shana131]

asPapi, I think the "three most recent tax years" would depend on whether they brought a new I-864 to the interview or used the one presumably submitted in 2007. If they submitted a new I-864 with a 2008 date I think they could legitimately use 2007, 2006, and 2005 as most recent tax years.

Why did you ask her if her 2006 income was above the guidelines? I don't think it's required that a prior year's AGI be above any guideline, at least it's not stated anywhere. (But I agree it might make for a stronger case.)

The interviewing officer, who didn't see any problem (he even told my husband his GC would arrive in about forty-five days), did not even take the new I-864. I think that's part of the problem. He approved everything, but I think, because he did not take the new I-864, my photcopied tax form for 2007 ($23,500 was taxable - enough of it to meet the guidelines), and my employment contract, though offered, the director sent the form letter saying we needed a joint sponsor. And, I probably should have listed the monetary gifts as assets, not income.

I greatly appreciate the help. I don't know where to go from here if the director doesn't accept my explanation. I did send him a certified envelope with all the documents the interviewing officer did not take, the new I-864, the tax form, the employment contract, the wire transfers, etc., plus an explanatory letter.

Thank you again. It's becoming a little clearer to me with every post.

 

[Shana131]

My comments are based on her interview date being close to mine.

I had my interview on 1/15/08. I did take along 2007 W2's and income information, which the IO disregarded.

Now according to the IO and I did question his logic, I was told that the applicable year to my case was 2006 since I submitted my petition in July 2007. So if the AGI on the 2006 taxes is above 125% of poverty level, then that's fine as long as I had submitted paystubs for the year I applied which was 2007.

In the OP's case, she had $0 income and was not required to file 2006, 2005, 2004 and both husband and wife had no income from employment during the year they applied.

I think it is the year in which the petition was filed, not the interview year, which would be 2007 in my case. My husband and I filed our petition in August 2007, so I would need to show proof of income for 2007, I think. I have that, and a tax form, but not for 2006, although I did, as the directions stated, attach a letter as to why the monthly income, which totaled $52,000 in 2007 and $48,000 in 2006, was not taxable, but perhaps I should have listed all the money as assets instead.

I honestly don't know, but it seems to me that it doesn't help my case that this particular director has been sued numerous times for various reasons, all involving being way too harsh on people. He's been demoted at least three times that I know of. I know there are rules against discrimination, being too harsh, etc., and I honestly don't know if this director is being too harsh with me or just being very "by the book." If it's "by the book," I can't blame him, though I wish he'd approve my petition, of course.

He put one woman and her child in removal proceedings because her husband died while awaiting a very lenghtly (years) determination regarding their interview and she appealed all the way to Federal court and prevailed. (The little boy is the original petitioner's natural son.)

 

[austriacus]

Well, silly me would have assumed that the "most recent tax years" and "current income" would apply to the date that the I-864 is signed and dated. It makes no sense to me at all that a new I-864 that you submit at the interview would be to prove prior year income because the AOS was filed then. But, USCIS is not always logical so you might just be right.

In any case, your 2007 income exceeded the required limit, your 2008 income will exceed the required limit, and you were not required to file taxes for 2004-2006 so I don't understand why there's even a problem. Well, you could contact the USCIS ombudsman if you feel discriminated against. Or take the easier route which is probably the joint filer, or include your assets with the I-864.

 

[Shana131]

Thank you for the help. How does one go about correcting a mistake they made on the I-864? Do you know? And do you know if the assets have to be five times the income or only three times now? (If you don't know offhand, I can look on the USCIS Website. I don't want to impose.)

Don't feel silly. I thought the same thing about "current income." "Current," at least to me, implies "now."

In 2007, I had approx. $52,000 of income (possibly assets and income) and $23,500 of that was taxable income, which meets their requirements. I'll have $39,000 income (no gifts, taxable income) in 2008 and beyond.

I never thought of calling the Ombudsman. Thank you for the help and the suggestion. I don't really feel discriminated against as I feel it's a huge mix-up and the officers don't want to take the time. I realize they're overworked, but they do need to examine all the evidence in each and every case.

We'll go with the joint sponsor if he comes through. He said he would, but he's not a relative and people have a hard time signing a paper that says the government can sue you, and honestly, though I want him to come through, I really can't blame him if he's hesitant. He's known my husband for eight years now, but hasn't seen him in awhile.

 

[Shana131]

I looked it up. It's five times if you're using assets rather than income and three times if you're using assets instead of income and you're sponsoring your spouse or minor child, however, I have the required income for 2007, which was the year we filed our petition and I'll have the required income in 2008 and beyond, so I don't see the problem, either. I really don't think I should need the assets, I just think they help. I was shocked and dismayed to get the letter.

I think I do need to call the Ombudsman. I think, in trying to be extremely thorough and not hide or overlook anything at all, I confused the issue. And I also think the officer not taking my employment contract was a big mistake. It was sent with the initial evidence, but I'm sure the director didn't sit there and go through the entire file of papers on my husband and me. They were nearly a foot thick. Maybe more. I sent two pounds of initial supporting documents.

 

[Shana131]

My comments are based on her interview date being close to mine.

I had my interview on 1/15/08. I did take along 2007 W2's and income information, which the IO disregarded.

Now according to the IO and I did question his logic, I was told that the applicable year to my case was 2006 since I submitted my petition in July 2007. So if the AGI on the 2006 taxes is above 125% of poverty level, then that's fine as long as I had submitted paystubs for the year I applied which was 2007.

In the OP's case, she had $0 income and was not required to file 2006, 2005, 2004 and both husband and wife had no income from employment during the year they applied.

No taxable income, no income from employment, but income of more than $52,000 in 2007 nonetheless, plus a lump sum payment of $25,000 for my equity in a vacation home and income of $48,000 in 2006. And, I have the wire transfers for three years. And an employment contract guaranteeing me a minimum of $39,000 through 2008. There's no possible way my husband would become a "public charge."

I submitted the wire transfers for thirty-six months, sworn statements as to the money being a gift, the employment contract, and the IRS rules that say the previous income was non-taxable.