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Sep 25, 2006
USCIS Issues New Memo Concerning Affidavit of Support Requirements
- Michael J. Gurfinkel , Esq. Email this article

On November 23, 2005, USCIS headquarters in Washington, D.C. issued a policy memorandum concerning affidavits of support (Form I-864), allowing a sponsor of an applicant applying for adjustment of status to submit his tax returns for only the most recent year, rather than for each of the three previous tax years.  This will be a tremendous benefit to sponsors, as now they need only one tax return (for the current tax year), rather than having to submit tax returns for the previous three
years.

By way of background, the law requires that in all family-based petition cases (as well as for some employment-based cases, where certain relatives own at least 5% of the petitioning company) the petitioner submit an affidavit of support and copies of his tax returns for the past three years.  This new memo changes existing USCIS policy regarding the affidavit of support (Form I-864) in the following respects:

1. The petitioner/sponsor need only submit his/her most recent federal income tax return, in connection with any adjustment of status application (Form I-485) filed on or after the date of the memo (November 23, 2005).  For example, if the sponsor signed the affidavit of support after
April 15, 2005, only the sponsor's 2004 federal income tax return would be required.

 

2. This rule (requiring only the most recent tax return) applies not only to the petitioning sponsor, but also to any substitute or joint sponsor signing a Form I-864 for an adjustment of status case.

 

3. For any adjustment of status application filed before the date of the memorandum, the sponsor should have filed the three most recent income tax returns.  However, given the change of policy, adjudicators are no longer required to issue a request for evidence (RFE) for the missing earlier tax returns, and instead can adjudicate the case based on the most recent tax return.

 

4. In lieu of a tax return, USCIS officers shall also accept an IRS-generated transcript of the taxpayer's income tax return as a true and correct "copy" of the sponsor's tax return. (The IRS will, without charge, issue to a taxpayer a transcript of the taxpayer's income tax return if the taxpayer files an IRS Form 4506T.)  If an IRS transcript is submitted, it will not be necessary for USCIS to request any missing forms W-2 or 1099. 

5. If the sponsor's tax return demonstrates that the sponsor's current income is at least 125% above the Poverty Guidelines, then the affidavit of support is sufficient, and the officer does not need to request any further evidence.  The adjudicator should request additional evidence (i.e., employment letters, pay stubs, or other financial data from the sponsor) only if the sponsor's tax returns reflects income below the Poverty Guidelines.

6. The affidavit of support is required at the time of the filing for adjustment of status.  Previously, the USCIS allowed the submission of the affidavit of support, at the time of the adjustment of status interview.  This memo states that the affidavit of support should be filed along with the adjustment of status application.

 
Please also note that the law requires that not only must the petitioner submit an affidavit of support in all cases (even if the petitioner is elderly, retired, has no money, etc.), but the petitioner must also be domiciled (or living) in the
U.S.  If an elderly Tatay has petitioned his adult children, but has since relocated to the
Philippines, the parent would not be in a position to submit the affidavit of support.  In such a case, a visa would not be issued.

 Please also note that this policy memorandum deals with adjustment of status interviews in the
U.S., and may not yet apply to applicants being processed for their visas at the U.S. Embassy.  In those cases where people are being processed at the Embassy, the sponsor's three most recent tax returns may still be required, until
further notice.
 

******

Michael J. Gurfinkel has been an attorney for over 25 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.  He has always excelled in school:  Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California

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