DOS Cable with Q&As on Form I-864
Editor's note: this document was also cited as AILA Doc. No. 98081190.
R 222136Z JUL 98FM SEC STATE WASH DC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
BUJUMBURA POUCH
ASMARA POUCH
Unclas State 133584
Visas Inform Consuls
E.O. 12958: N/A
Tags: CVIS, CMGT
Subject: I-864 Affidavit of Support - Update No. 17: More Q's and A's
Ref: (A) 97 State 235260 (B) 97 State 228862 and All Previous
1. This message contains additional guidance on the I-864. Consular Section Chiefs should ensure that all Immigrant Visa Line Officers, FSN's and anyone who responds to inquiries regarding immigrant visas read this message.
Revisions to the I-864
2. Q: Is the 10/5/97 Form still the only acceptable version of the I-864?
A: No. INS made some minor revisions to both the I-864 and I-864A in January. The revised forms are dated 1/21/98. Unless otherwise notified, previous forms will also remain in use.
Incorrectly Completed I-864's
3. Q: If the affidavit is not complete or is not filled out correctly, but it is clear from supporting documentation that the I-864 would meet all public charge requirements, must the sponsor submit a new and correct I-864?
A: Certain sections of the affidavit (listed below) must/must be correct. The I-864 must be returned to the sponsor for correction before issuance if the following information is missing, incomplete or inaccurate:
Sponsor's name and bio data
Household member's name and bio data (I-864A)
Beneficiary's and accompanying family members' names and bio data
Original sponsor's signature in the correct section
Original sponsor's and household member's signatures in the correct sections (I-864A)
Original notarization on the principal applicant's I-864 and I-864A (if needed)
Other sections are less critical to the sponsor's obligation to provide support. Many sponsors inadvertently provide incomplete or incorrect information or check the wrong box regarding most recent year's income, household size, basis for filing (petitioner, relative with ownership interest, joint sponsor), etc. In such cases, it is first necessary to ascertain whether the incomplete/incorrect information is due to the sponsor's not understanding the form or due to an attempt to conceal a poor financial situation. If there is no indication of fraud, and if the officer is able to verify the correct information and conclude that the public charge concerns are met, a new I-864 would not be needed. The officer should note correct information on a separate sheet of paper, apply the officer's name stamp and initials and attach it to the form. For example, the sheet might read:
"Actual household size is (number)."
"Actual basis for filing is ( )."
"Part 4 D: Sponsor's individual income as listed on (year) tax return is ( ) instead of ( )." (Note: This should be for relatively small discrepancies between claimed income in Part 4 and the income listed on the tax return. Large discrepancies that would affect whether the sponsor meets the minimum income requirement might require an amended tax return.)
Under no circumstances should the officer make notes on the form or correct the form itself.
As always, common sense must prevail. If the form is illegible or seriously deficient (e.g., everything but the names left blank), a new I-864 would be needed. Posts may also check with CA/VO/F/P or CA/VO/L/A with complicated or borderline cases.
Income Requirement
4. Q: Must each of the last three years' income equal 125% of the poverty line?
A: No. The current year's income, supported by employment letters or other appropriate documentation to demonstrate continued employment/income, will govern. It is possible that a sponsor whose last three years of tax records are all below the minimum income requirement will still qualify as a sponsor if current income is sustainable and will meet or exceed the minimum income level. For example, someone who recently graduated from college may have had little or no income while in school, but is now employed with an income that meets or exceeds 125% of the poverty guideline for his/her household size. The visa should not be denied because of the previous years of low income. Conversely, a sponsor who earned a high income three years ago, but whose income is now below the poverty guideline would need a joint sponsor, absent significant assets or an I-864 from a qualifying household member(s), to meet public charge concerns.
Tax Returns
5. Q: If a sponsor cannot present three years of tax returns because he/she was not obligated to file, can he/she qualify as a sponsor?
A: Yes. A sponsor is only required to submit returns for years in which he/she was obligated to file. The lack of tax returns if there was no obligation to file does not disqualify him/her as a sponsor. The deciding factor is current and sustainable income. See para. 4 above.
6. Q: How can a consular officer tell if there is a tax obligation?
A: Consular officers should not and do not have to become instant tax experts to process the new I-864. Any sponsor that claims not to have had an obligation to file a tax return should provide a written explanation. It is up to the sponsor to demonstrate that s/he did not need to file. The easiest way would be for them to provide a copy of the IRS guidance, found in the various IRS tax publications, that covers their situation. Pages A and B of the 1997 1040 instructions chart the basic criteria for determining whether there is an obligation to file in most cases. Posts can also refer difficult cases to regional IRS offices for an opinion.
7. Q: How can an officer verify that the submitted tax returns were actually filed?
A: In those cases where the officer questions the submitted tax returns, s/he may require the sponsor to submit a tax summary prepared by the IRS. The summary is a computerized printout (and therefore easy to fabricate). Posts should generally require that the sponsor have the summary sent directly to post by IRS. The sponsor should ask IRS to include the applicant's name and case number on the form so that it can be readily attached to the correct file upon receipt at post.
8. Q: Can officers accept the IRS summary printout rather than copies of the tax returns?
A: Yes.
9. Q: Can posts require an IRS tax summary or certified tax returns from all applicants?
A: No. Several posts have requested authorization to include in all packet four mailings a requirement for tax summaries or certified returns from the petitioner, household members who filed I-864A and any joint sponsors. Since neither the summary nor a certified return is required by the statute, posts may not/not require them of all sponsors prior to the review of the submitted documents. They may only be required on a case-by-case basis when officers question the validity of the submitted tax returns. Posts should report a high incidence of bogus tax returns to CA/VO/F/P; Attention Karin King.
FYI: A number of applicants have had difficulty obtaining certified copies of their tax returns and several IRS offices have declined to provide the copies, instead providing a certified copy of the tax summary. Posts should only require certified copies of the returns themselves under extremely limited circumstances. The summary printout should be sufficient in most cases.
10. Q: If the sponsor owns a business, should he/she submit individual or business tax returns?
A: The sponsor must submit individual returns - by definition, a sponsor must be a person and not an entity (business, church, organization, etc.). Note that the business income/loss will often be listed on the individual return - officers should look at the personal income portion of the return (wages, salaries and tips, dividends, etc.).
11. Q: How should an officer calculate a sponsor's income/loss from the tax return?
A: Officers should rely to the extent possible on "Total Income" (Line 22 on the 1997 1040). When the sponsor owns a business, or is a personal contractor, that figure can be misleading, however, reflecting a "loss" when in fact the sponsor's real expendable income was well above the requisite minimum income level. In such cases, officers should look at the totality of the sponsor's personal income (wages, salaries and tips, dividends, etc.), rather than business income/loss that may be factored into total income on Line 22. As in the case of salaried sponsors, the key factor is the sponsor's current and sustainable income.
The business income cannot be totally discounted, however, if the business is the sponsor's primary source of income. In most cases, Line 22 will reflect the sponsor's financial situation. In more complicated cases, the sponsor (or his/her accountant) should be able to clarify the sponsor's real personal income. A business "loss," for example, might be the result of legitimate deductions for depreciation, but is not necessarily an indication of imminent bankruptcy. In the more complicated cases, where the sponsor's real income is not readily clear, posts may request an advisory opinion from CA/VO/L/A.
12. Q: Can a petitioner choose not to file tax returns, purposefully submitting an insufficient or incomplete I-864, and use a joint sponsor?
A: No. Tax returns are required if the petitioner/sponsor was obligated to file. The sponsor completes the AOS under penalty of perjury. If he or she claimed no income in order to avoid disclosing a failure to file a tax return and to pay taxes, that would be a felony, in addition to any tax offenses already committed.
13. Q: If a sponsor has neglected to file, or underreported his/her income to the IRS, are late filed or amended tax returns acceptable?
A: Yes. Some posts have already received late or amended returns that were carefully prepared, but never filed with IRS. On a case-by-case basis, interviewing officers may wish to verify with IRS that the returns were actually filed. The easiest way to do that is to ask the sponsor to request IRS to send a printout of his/her tax summary for any or all of the three preceding years directly to the visa unit. The sponsor should request that the applicant's name and case number appear on the printout to allow post to attach the printout to the appropriate case.
Follow to Join
14. Q: If the petitioner dies before the following to join relatives make application for immigrant visas, who files the I-864?
A: Any person who meets the qualifications of a sponsor (18 years of age, U.S. citizen or LPR, domiciled in the U.S. and able to meet the minimum income requirement) may file in the deceased petitioner's stead.
15. Q: In a follow to join case, if the petitioner has relinquished legal immigrant status, can he/she still file an I-864?
A: No. The petitioner must qualify as a sponsor in order to file an I-864. A petitioner who has relinquished his/her LPR status cannot qualify as a sponsor. If the petitioner does not qualify as a sponsor, there can be no joint sponsor and the FTJ applicant is inadmissible under 212(a)(4). In such cases, the principal applicant in the United States will need to file a new petition on his/her dependent's behalf.
16. Q: If the petitioner and principal applicant (PA) divorce after the PA immigrates but before the PA's children immigrate and the petitioner declines to file an I-864, can a different sponsor file on the children's behalf?
A: No. The statute requires an I-864 from the petitioner. The petitioner is under no obligation to file an I-864, however. If the petitioner elects not to submit an I-864, the visa applicant cannot qualify for a visa under section 212(a)(4). The principal applicant parent in the U.S. would then need to file a new petition on his/her child/children's behalf.
17. Q: If the principal alien immigrated before December 19, 1997, do the following to join (FTJ) dependents need an I-864?
A: If the principal aliens immigrated in a family-based category or one of the specified employment-based categories, the FTJ dependents would need I-864's signed by the original petitioner. If the petitioner cannot meet the 125% income level, the principal applicant, or any other individual who meets the qualifications of a sponsor (USC or LPR, 18 years of age, domiciled in the U.S. or its territories, can demonstrate the minimum income level), may file a joint I-864. If the original petitioner has died, anyone who qualifies as a sponsor may file an I-864. However, if the principal alien did not immigrate in one of the specified categories, the following to join dependent would not/not require an I-864 and should not be processed under previously existing public charge guidelines.
18. Q: If the petitioner cannot meet the minimum income requirement, can joint sponsors divide up the following to join applicants?
A: Yes. Unlike accompanying family members, following to join applicants may be considered separately. The petitioner must still file an affidavit of support for each FTJ applicant, but separate joint sponsors may file I-864 for individual FTJ applicants.
Employment-Based Cases
19. Q: Does the requirement for the relative/petitioner to sponsor in employment- based cases apply if the petitioner or relative with ownership interest in the petitioning entity does not live in the U.S. and is neither a U.S. citizen nor an LPR?
A: INS has determined that non-citizen/non-legal permanent resident petitioners/relatives who do not reside in the United States are not required to file an I-864.
Under Age Petitioners
20. Q: If the petitioner does not meet the age requirement in section 213A, can he/she still file an I-864 and have a joint sponsor?
A: No. Section 213A specifies that a sponsor must be at least 18 years of age. The petitioner must meet the definition of a sponsor before there can be a joint sponsor.
Means Tested Benefits Cannot Be Considered Income
21. Q: Can a petitioner's or joint sponsor's SSI benefits be counted as income?
A: No. SSI benefits cannot be considered when computing the sufficiency of the I-864. (A sufficient I-864 is one that meets the minimum income requirement.)
22. Q: Can disability benefits be considered as income?
A: Yes.
23. Q: Can Social Security benefits (not SSI) be considered as income?
A: Yes.
24. Q: Can income from unemployment benefits or workman's compensation be considered as income for I-864 purposes?
A: Unemployment Benefits: Unemployment benefits are normally temporary in nature and would not meet the criteria of sustainable income. Such benefits should therefore not be considered for I-864 purposes.
Workman's Compensation: If the sponsor can demonstrate that he/she will return to previous employment at the same salary level (or a level that meets public charge concerns) upon completion of medical treatment, workman's compensation could be counted toward the current year's income. Like unemployment benefits, workman's comp is generally of a temporary and finite nature. It would not meet the criteria of sustainable income, however, absent the ability to resume employment after appropriate medical treatment.
Incompetent Petitioner
25. Q: If the petitioner is in a coma or otherwise mentally incompetent, who files the affidavit?
A: An individual who can demonstrate legal competence to administer the petitioner's findings may file an I-864 on the petitioner's behalf. (Similar to filing a petition on behalf of a mentally incapacitated or incompetent petitioner).
Notarization by Foreign Notaries
26. Q: Can the affidavit be notarized by a foreign notary?
A: No. The notarization must be done by a U.S. notary public, an INS officer or a consular officer. Assets Located Outside the U.S.
27. Q: Can the assets of the petitioner/sponsor be overseas, assuming they are readily convertible within 12 months and can be transferred out of the foreign country?
A: Yes.
Madeleine Albright