All family based immigrants need an Affidavit of Support (Form I-864) as part of their application. This helps immigrant visa applicants to overcome the Public Charge ground of visa ineligibility found in the Immigration and Naturalization Act Sec. 212(a)(4). Those who process through the National Visa Center submit their Form I-864 and supporting documents there first. Those who direct consular process through the US Embassy in London submit their Form I-864 and supporting documents at their interview. Those who adjust status in the United States submit their Form I-864 with the National Benefits Center when they file Form I-485.
Note: Foreign nationals who apply for a US immigrant visa or adjust status on a basis other than an alien relative petition do not have to worry about the public charge ineligibility. These include most employment based immigrants, including the investment based EB-5, and diversity visa (DV) applicants.
Fiancé visa applicants have a lower standard to meet to overcome the public charge inadmissibility grounds. Their petitioners may compete Form I-134 instead of Form I-864 at their consular interview. They can also submit pay stubs or bank statements.
US Tax Returns
The most recent year’s US tax return is absolutely mandatory as a supporting document with the I-864. The adjudicators prefer that the Form I-864 sponsor submit the tax return copy in the form of a tax summary called a “tax transcript.” The latter are available for free upon request from the US Internal Revenue Service; those with tax records in the US can request a tax transcript online at www.irs.gov.
Policing tax reporting. Immigration agencies do not share tax details, but they do police reporting. Failure to submit the most recent US tax return from the sponsor will be an obstacle to visa issuance. The US Embassy in London for example will block the immigrants’ application approval after an interview, until the petitioner files a tax return and the applicant submits it to the post. Likewise, the National Benefit Center will block issuance of the Employment Authorization Document and Advance Parole cards for adjustment of status applicants.
Regular Employment Income
Sponsors with regular employment evidenced by a W-2 in the United States or a P60 in the United Kingdom will have the easiest time with the Affidavit of Support
Sponsors with self-employment should provide in addition to their tax return, evidence to support the gross income stated there. This evidence can include:
1/ the financial statements of the company to see the income generated by it, especially if the owners are paying themselves in dividend income;
2/ evidence of how the sponsor is making the income reported, e.g., contracts for their work;
3/ evidence that the sponsor’s entity is a going concern, with brochures from their work, business cards, business stationery etc.
Income from non-taxable sources does not appear on the tax return as “taxable income,” so it must be documented in other ways.
1/ Social Security Income can be documented with bank statements. The sponsor can highlight the payments from the SSA Treasury. The bank statements will show electronic transfers to the sponsor’s bank account in the amount of the “Federal Benefit Deposit” from SSA Treas. There will be a transaction reference number and a reference in prose to “Soc Sec.” Each monthly payment will generally be identical in a given year.
- If the sponsor has time, they can obtain a letter from the local Social Security Administration office verifying the payments that are being made.
2/ Trust Fund Beneficiary Income. Trusts are used to give income to the beneficiaries in a tax efficient manner, either from living or passed away trust creators. The trust creator has already paid taxes on the money that they earned and later put in the trust. The money comes out tax free when it goes to the beneficiary. The trust money that pays for the household expenses of the beneficiary can be documented with:
- The trust foundation document,
- The statement of the assets in the trust,
- A letter from the trust executor,
- Bank statements of the trust beneficiary showing the trust payments to her, and
- A statement from the beneficiary’s US tax preparer or accountant stating why the trust payments are not found on her tax return.
3/ Legal Settlements. Money from personal injury settlements, worker’s compensation, medical malpractice or other civil action may not be taxable. Evidence that can be used to document are:
- Certified disposition or judgement and payment schedule awarding the funds, proof of fund deposits in a bank account owned by the sponsor over the past three years, and
- A letter from a US tax preparer or accountant stating why the payments are not found on a tax return.
4/ Life insurance proceeds. You can document life insurance proceeds with a letter or documentation from the life insurance company and bank statements for the past three years. There are instructions / information on www.irs.gov on why these do not appear on tax returns.
5/ Alimony and child support payments are not taxable. The payor pays taxes on the money he earns on his own return. Evidence that can be given:
- the court order or legal settlement establishing the payment schedule
- proof that payments are being deposited in the bank account of the sponsor
- payments made based on agreements from outside the court system can be documented by a letter signed by both the payor and recipient
6/ Disability proceeds. Document them and check with the sponsor’s US tax preparer or accountant for a letter as to why they are not on the tax return as income.
Contact Melissa Chavin – US Visa Lawyer