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Revised Requirements for Form I-864 Processing


UNCLAS STATE 051172
302243Z MAR 06
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE IMMEDIATE
AMEMBASSY GEORGETOWN IMMEDIATE

SUBJECT: REVISED REQUIREMENTS FOR FORM I-864 PROCESSING
REF: STATE 022685

1. Reftel described changes in requirements for demonstrating a
sponsor's means to maintain income at a level that establishes
that the visa applicant is not ineligible under INA 212(a)(4).
The Department has identified further, related changes in
requirements regarding Form I-864 processing.  For ease of
reference, this cable follows the same format as reftel, with
each paragraph and FAM note that contains revised guidance
clearly marked at the beginning of that section with the word
"REVISED" in brackets.  This cable supersedes reftel in its
entirety.

2. Summary. Effective immediately, sponsors filing an I-864
are required to submit only their Federal tax return for their
most recent tax year, current as of the date of execution of the
I-864. The I-864 will remain valid indefinitely absent other
evidence of failure to meet the public charge provisions of the
law and should be evaluated based on the poverty guidelines in
effect on the date of filing with NVC or with post. [NOTE:
Reftel had indicated that poverty guidelines in effect as of the
date of signing would apply.  Instead, posts are to consider the
guidelines in effect as of the date the I-864 is submitted.]
Updated tax returns should not be requested absent positive
evidence of public charge issues.  The sponsor signature on Form
I-864 does not need to be notarized since the sponsor is signing
under penalty of perjury.  Photocopies of Form I-864 that are
submitted for derivative applicants do not require an original
signature or notarization.  [NOTE:  Reftel had included existing
9 FAM language, requiring notarized signatures on an original I-
864 and an original signature on each photocopy.  The new
guidance is consistent with current DHS requirements.] Posts are
reminded that there are some circumstances in which the I-864 is
not required. (For these exceptions, see 9 FAM 40.41 N3.4, 9 FAM
40.41 N3.4-2, 9 FAM 40.41 N3.4-3,and 9 FAM 40.41 N4.6-3.)   End
summary.

3. DHS has recently changed its guidance on handling I-864
Affidavits of Support. To make Department and DHS guidance
consistent, and our requirements more immediately useful, the
Department is changing some of the requirements that apply in
determinations of whether a sponsor filing a Form I-864,
"Affidavit of Support Under Section 213A of the Act", has
demonstrated the means to maintain income at a level to
establish that an immigrant visa applicant is not excludable as
a public charge. Previously, a sponsor was required to provide
copies of Federal income tax returns for the three most recent
taxable years as of the filing of the visa application, along
with evidence of current employment. Posts required updated
income information for the sponsor if the Form I-864 had been
filed more than one year prior to the visa interview. Consular
officers determined whether a sponsor's income was sufficient by
considering the Federal poverty guidelines in effect at the time
of visa adjudication.

4. [REVISED] Effective immediately, income as of the time the
Form I-864 was signed should be considered on the basis of the
poverty guidelines that were in effect when the Form I-864 was
submitted in support of an immigrant visa application.  The
sponsor is required to submit with their I-864 an IRS transcript
or photocopy of only the most recent Federal income tax return.
However, the sponsor may, at his or her option, submit Federal
income tax returns for the three most recent years if the
sponsor believes these additional tax returns may help establish
the sponsor's ability to maintain his or her household income at
the applicable threshold set forth in the poverty guidelines.
Note that the sponsor, by signing the Form I-864 under penalty
of perjury, certifies that the transcript or photocopy is true
and correct.  This certification meets the statutory requirement
of presenting a "certified" copy and, per 28 U.S.C. 1746, the
requirement that the affidavit of support be sworn or affirmed
before a notary, consular officer, or immigration officer.

Posts should not require an employment letter except in cases
where there is a specific reason to question the veracity of the
income stated.  The consular officer is to determine whether the
income stated by the sponsor and documented in the tax return
and any other evidence meets the poverty guidelines in effect as
of the time of the I-864 was filed with NVC or with post. If the
consular officer determines either that the sponsor's income as
of the time the I-864 was signed does not meet the guidelines or
that the facts of the case, as supported by evidence in the
record, provide a specific reason other than the passage of
time, then they should request current year income information
and base the determination of the sufficiency of the I-864 upon
the additional evidence as it relates to the poverty guidelines
for the current year. In addition, the Department has determined
that the validity of the I-864 should be considered indefinite,
starting from the date the sponsor signs it. Post will no longer
be required to ask for new affidavits or updated tax returns
simply due to long processing delays between the date of
signature and the date of the visa interview. Detailed guidance
regarding the new requirements will be published in 9 FAM 40.41
N5.1, 9 FAM 40.41 N5.4, 9 FAM 40.41 PN2.10-2, 9 FAM 40.41 PN3, 9
FAM 42.73 PN3.4, and 9 FAM 40.41 Exhibit I.

5. Section 213A(f)(6)(A)(i) of the Immigration and Nationality
Act (INA) provides that a sponsor must submit certified copies
of the sponsor's three most recent Federal income tax returns.
However, section 213A(f)(6)(B) of the INA provides the Secretary
of State with the discretionary authority to limit the
submission of Federal income tax returns, made in connection
with a visa application, to the most recent taxable year. The
Secretary's authority is delegated to the Assistant Secretary of
State for Consular Affairs pursuant to State Department
Delegation No. 74, as amended. Likewise, INA 213A(f)(6)(B)
extends the exercise of this discretionary authority to the
Secretary of Homeland Security in connection with adjustment of
status cases.

6. The Assistant Secretary for CA, in keeping with her
commitment to improving visa processing, via this cable invokes
her discretionary authority to adopt the Federal income tax
return limitation provided for at INA 213A(f)(6)(B). Similarly,
the Secretary of Homeland Security has exercised his authority
under this section to limit the tax return filing requirement
for I-864 adjustment cases to the most recent federal tax return
as of the date the Form I-864 was signed. This applies to all
petitioning sponsors, as well as substitute or joint sponsors
signing a Form I-864 for an adjustment of status case.

7. [REVISED] DHS recently published a policy memorandum that
reports the change regarding the tax return requirement and
provides clarification as to how USCIS officers are to determine
the sufficiency of a Form I-864. The policy memorandum will be
incorporated into 8 CFR 213a via a separate rulemaking. The
memorandum provides that USCIS officers should judge income
information provided as of the date the Form I-864 was signed
against the poverty guidelines in effect at the time the I-864
was filed in support of an adjustment of status application. DHS
further provided that a Form W-2 or Form 1099 is no longer
required if the copy of the tax return submitted is an IRS-
generated transcript. In cases where the sponsor has provided a
photocopy of the tax return and it is missing either a Form W-2
or Form 1099, USCIS has given its officers the authority to
decide whether it is necessary to require the W-2 or 1099, if
the record taken as a whole, establishes that information on the
tax return is true and correct. 8 CFR 213a(c)(ii)(2) requires a
sponsor and any other person whose income is being used to
qualify to attach evidence of current employment, reflecting
salary or wages, evidence of current self-employment, or the
sponsor's statement regarding the length of unemployment or
retirement. 9 FAM 40.41 N5.4 (a)(3) has advised consular
officers of this requirement.  However, the CIS policy
memorandum states a change: if the information on the tax return
establishes that the sponsor's current income meets the poverty
guidelines for the year the sponsor signed the Form I-864, the
adjudicator shall determine that the Form I-864 is sufficient
without requesting any further documentation, such as more
recent evidence of employment or income, unless there is a
specific reason (other than the passage of time) to question
whether the evidence of income is still reliable. Additional
evidence (i.e., employment letter(s), pay stub(s), or other
financial data) should be requested in two specific situations:
one, the tax return reflects income that does not meet the
poverty guidelines as of the time of filing and the record does
not already contain additional evidence that the sponsor meets
the current income requirements or, two, the facts of the case,
as supported by the evidence in the record, provide a specific
reason (other than the passage of time) to believe that the
sponsor's income is no longer sufficient. In either of these
situations, the adjudicator shall request current income
information and determine from the additional evidence whether
the I-864 is sufficient under the poverty guidelines in effect
at the time of adjudication.

8. [REVISED] In addition to the change in the number of tax
returns, the Department is revising other I-864 requirements,
consistent with the DHS policy memorandum. Consular officers
should no longer refuse applicants under INA 221(g) for failing
to provide the three most recent federal tax returns. The
sponsor's most recent Federal tax return as of the date the Form
I-864 is signed (not the date of the Immigrant Visa application)
is the only one necessary. The consular officer should determine
whether or not the income on the most recent tax return, at the
time of the sponsor signing the AOS, is sufficient to meet the
poverty guidelines that were in effect at the time that the Form
I-864 was submitted in support of the Immigrant Visa
application. If the case was processed through NVC, this would
be the time the AOS was submitted to NVC.  If the information on
the tax return establishes that the sponsor's income meets the
poverty guidelines for the year the I-864 was filed, the
consular officer should determine that the I-864 is sufficient
without requesting any further evidence.  However, the consular
officer may require additional evidence of income in cases where
the consular officer concludes either that the income
information fails to meet the standards as of the time the I-864
was signed, or there is a specific reason other than the passage
of time for the consular officer to question whether the income
information provided in the I-864 or other supporting documents
is accurate. These and other changes are contained in the FAM
notes, procedural notes, and exhibit, which follow.

9. The following FAM notes will be amended to reflect the new
policy.
Text of amended FAM Notes:

9 FAM 40.41 N5.1 Affidavit of Support Packet
[REVISION TO (d)]

a. The documents listed below, make up the affidavit of
support packet and are designed to assist the sponsor's
understanding and proper completion of the affidavit of support
required by INA 213A:

(1) Form I-864, Affidavit of Support Under Section 213A of the
Act;
(2) Current Federal Poverty Guidelines;
(3) Form I-864A, Contract Between Sponsor and Household
Members;
(4) Form I-865, Sponsor's Notice of Change of Address; and
(5) Checklist for preparing the Form I-864.

b. The National Visa Center (NVC) will include the checklist and
other documents in the Instruction Package for Immigrant Visa
Applicants, indicating the supporting documents required with
the Form I-864. Posts may reproduce the checklist for local use
and include it with the Forms I-864 that are distributed
locally. Posts should also, when possible, make it available
through websites and information units. Posts must maintain
updated poverty guidelines and ensure that they are included
with all affidavit of support forms. NVC and posts should also
make sponsors aware of the fact that their income must meet the
poverty guidelines at the time of AOS filing with NVC or with
post.

c. This documentation, supported by items listed in 9 FAM
40.41 N5.1, constitutes the primary (but not sole) evidence for
establishing eligibility under INA 212(a)(4)(C) for those
categories specified in 9 FAM 40.41 N3.2 above, and establishes
the sponsor's income and, if need be, assets.

d. The validity of the Form I-864 is indefinite from the time
the sponsors and contributing household members have signed the
Forms I-864 and I-864A. The affidavit of support is based on the
Federal Poverty Guidelines in effect at the time of its
submission in support of an Immigrant Visa application.  9 FAM
40.41 N5.4 describes circumstances in which additional
documentation and/or consideration of income on the basis of the
current poverty guidelines may be necessary at post.  Newly
issued poverty guidelines generally become effective for INA
213A affidavit purposes at the beginning of the second month
after being published in the Federal Register. However, you
must review the text of the Federal Register notice to determine
the exact date on which new poverty guidelines become effective.

9 FAM 40.41 N5.4 Supporting Evidence Must Be Submitted with Form
I-864, Affidavit of Support Under Section 213A of the Act
[REVISED]

a. The sponsor(s) must provide the following documentation to
satisfactorily complete Form I-864, Affidavit of Support Under
Section 213A of the Act:

(1) Sponsor's Federal income tax return for the sponsor's most
recent tax year:

(a) Each sponsor must submit with the I-864 a photocopy or IRS-
generated transcript of the most recent income tax return that
the sponsor had filed prior to the time of the AOS signing.  A
person may obtain a free IRS-generated transcript by filing IRS
Form 4506-T.  Ordinarily, the sponsor's signature on the Form I-
864 is sufficient to qualify the photocopy or transcript as a
"certified" copy.  In those cases where you question the
submitted tax return or transcript, you may require the sponsor
to submit an IRS-certified copy of the tax return.  A person
obtains an IRS-certified copy by submitting IRS Form 4506, and
paying the requisite filing fee.  In such cases, you should
generally require that the sponsor have the IRS-certified copy
sent directly to post by the IRS.  The sponsor should ask the
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. You may not require IRS-certified copies of tax
returns of all sponsors prior to review of the submitted tax
return. IRS-certified copies may only be required on a case-by-
case basis when you question the validity of the submitted tax
return.

(b) Failure to file a required income tax return does not
excuse the sponsor from the requirement for tax returns as
supporting documents. If a tax return should have been filed,
the affidavit will not be considered sufficient until the
sponsor has done so and supplied the appropriate copies for
consideration with the Form I-864, Affidavit of Support Under
Section 213A of the Act. If the income requirement cannot be
met, but the sponsor claims to have under-reported his or her
income, an amended return will be necessary. (NOTE: A consular
officer does not have the authority to require an individual to
pay taxes or correctly report income. You may, however, advise
applicants or sponsors that an original or amended tax return
will be required in order to process the immigrant visa
application to conclusion).

(c) If a photocopy of a tax return provided by the sponsor
lists income that should have been reflected in a Form W-2 or
Form 1099, but such form was not submitted to post with the tax
return and I-864, you should consider the record, taken as a
whole, and determine whether it establishes that information on
the tax return is true and correct. If you conclude that the
information is true and correct, it is not necessary to require
a copy of the W-2 or 1099. Further, in cases where the copy of
the tax return is an IRS-generated transcript, it is not
necessary to require a copy of the W-2 or 1099.

(2) Tax returns of other household members: If the sponsor is
relying on income from any household member or dependents [as
defined at 40.41 N7.1 below] to reach the minimum income
requirement, an IRS-issued transcript or a copy of each such
individual's most recent tax return is also required, and each
such person must complete a Form I-864A, Contract Between
Sponsor and Household member;

(3) Employment evidence:

(a) Except as provided in 9 FAM 40.41 N5.4(a)(3)(c) and (d),
below, if the information on the Affidavit of Support and tax
return establish that the sponsor's current income meets or
exceeds the poverty guidelines for the year the sponsor
submitted the Form I-864 in support of the Immigrant Visa
application, either by submitting to NVC directly or to post at
the time of application, you must determine that the Form I-864
is sufficient without requesting any further evidence. See 9 FAM
40.41 Exhibit I, "Poverty Income Guidelines."

(b) If the Affidavit of Support or tax return reflects income
below the poverty guidelines for the year the Form I-864 was
submitted, you should request additional evidence of current
employment or self-employment, such as: recent pay statements, a
letter from the employer on business letterhead - showing dates
of employment, wages paid, and type of work performed - or other
financial data. If the sponsor with income below the poverty
guidelines is unemployed or retired, you should request evidence
of ongoing income from other means, such as retirement benefits,
other household members' income, or other significant assets.

(c) You should request additional evidence (i.e., employment
letter, recent pay statements, or other financial data) only if
there is a specific reason (other than the passage of time) to
question the veracity of the income stated on the Form I-864 or
the accompanying document(s).

(d) If you determine either that the tax return and/or
additional evidence in the file do not establish that the
sponsor meets the poverty guidelines in effect at the time the
I-864 was filed, or that the facts of the case, as supported by
evidence in the record, provide a specific reason other than the
passage of time for questioning whether the sponsor's income
information is accurate or still meets the guidelines, you
should request current year income information. In this
situation, the sufficiency of the Form I-864 is determined based
upon the additional evidence as it relates to the applicable
poverty guidelines for the current year, rather than the poverty
guidelines for the calendar year in which the sponsor signed the
Form I-864.

b. Tax-free income (such as a housing allowance for clergy or
military personnel) and other tangible benefits in lieu of
salary are considered income. The sponsor bears the burden of
proving the nature and amount of income.

c. Assembling the documents is the sponsor's responsibility.  If
the Form I-864, Affidavit of Support Under Section 213A of the
Act, and supporting documents are incomplete or poorly
assembled, the post must refuse the applicant under INA 221(g)
and return the entire package to the applicant with a copy of
the checklist.

9 FAM 40.41 EXHIBIT I
POVERTY INCOME GUIDELINES
[REVISED]

Poverty guidelines are published annually by the Department of
Health and Human Services (HHS). The guidelines are a
simplified version of the poverty thresholds used by the Census
Bureau to prepare statistical estimates of the number of persons
and families living in poverty. Applicants who can't meet the
applicable minimum poverty guideline threshold are ineligible
for visa issuance under INA 212(a)(4)(C).
NOTE: The 2006 guidelines should be considered in
determinations of whether a Form I-864 submitted on or after
March 1, 2006 meets the minimum federal poverty guideline
threshold. In cases in which the sponsor has filed the Form I-
864 prior to March 1, 2006, consider the guidelines that were in
effect at the time of submission. 9 FAM 40.41 N5.4(a)(3)(d)
describes circumstances where a poverty guideline determination
based on income as of the signing of the Form I-864 should be
followed by a determination based on current income information
and current guidelines.
[The exhibit will now contain the guidelines for the five most
recent years. There are no changes to "WHO NEEDS FORM I-864,
AFFIDAVIT OF SUPPORT UNDER SECTION 213A OF THE ACT?" and "WHICH
APPLICANTS FOR FAMILY-BASED IMMIGRANT VISAS DO NOT NEED THE I-
864, AFFIDAVIT OF SUPPORT UNDER SECTION 213A OF THE ACT?"]
CHECKLIST FOR PREPARING THE FORM I-864, AFFIDAVIT OF SUPPORT
UNDER SECTION 213A OF THE ACT

Documents must be submitted in the following order:

a. Petitioner's Documents-Form I-864, Affidavit of Support
Under Section 213A of the Act. The petitioner in family-based
immigrants, or the employment-based immigrants where a relative
filed the petition or has ownership interest (5% or more) in the
petitioning entity, or a joint sponsor must complete a Form I-
864, Affidavit of Support Under Section 213A of the Act.

(1) All pages in correct order, 1, 2, 3, 4, 5, and 6 and
stapled together.
(2) Each page filled out completely.
(3) Part 7 signed by the petitioner or, for employment cases, by
the relative) (not required to be notarized).
(4) Photocopy or IRS transcript of the most recent federal tax
return with all supporting schedules that the sponsor had filed
prior to the time of AOS signing. The return must have all pages
in the correct order and must be stapled together.
(5) If you did not have to file a tax return, attach a written
explanation and a copy of the instructions from the Internal
Revenue Service publication that shows you were not obligated to
file. (For information on most income tax obligations visit the
IRS website.)
(6) If assets are needed to meet the minimum income
requirement:
(a) Evidence of assets with a cash value that equals at least
five times the difference between your total household income
and the poverty guideline for your household size (see chart
below):

Example for a Household of 4:
125% Poverty Guideline                          $24,188 (2005)
Sponsor's Income                                        $18,000
Difference                                              $6,188
Multiply by 5                                           X 5
Minimum Required Cash Value of Assets   $30,940

(b) Evidence of ownership, location, and the value of each
asset;
(c) Evidence of liens, mortgages, and liabilities for each
asset (if any); and
(d) When required under 9 FAM 40.41 N5.4(a)(3), evidence of
current employment or self-employment, such as a recent pay
statement or a statement from your employer on business
stationery, showing beginning date of employment, type of work
performed, and salary or wages paid.

b. Joint Sponsor's Documents (if required):
Form I-864, Affidavit of Support Under Section 213A of the Act:
Must be completed by a joint sponsor if the petitioner's income
does not meet the 125% income requirement.

The joint sponsor:
Must meet the same qualifications as the petitioner and submit
the same documentation as noted in (a) Petitioner's Documents
above.
NOTE: The petitioner must also submit a Form I-864, Affidavit of
Support Under Section 213A of the Act.

c. Household members whose income and assets are to be
considered:
A separate Form I-864A, Contract Between Sponsor and Household
Member must be completed for each household member whose income
and assets are to be considered.
(1) Each page must be filled out completely and stapled
together.
(2) All tax, employment, and asset documents must be assembled
in the same manner as the sponsor's (see above) and attached to
the correct Form I-864A Contract Between Sponsor and Household
Member.
(3) Proof of U.S. citizenship or lawful permanent resident
(LPR) status must be attached.
(4) Part 2 and Part 5 must be completed by sponsor (not required
to be notarized).
(5) Part 3 or Part 4 and Part 6 must be completed by the
household member (not required to be notarized).
d. Documents for the Principal Immigrant and Accompanying

Dependents:
(1) Principal Applicant:
(a) Original Form I-864, Affidavit of Support Under Section
213A of the Act and Form I-864A, Contract Between Sponsor and
Household Member (if needed), must be signed (not required to be
notarized).
(b) The sponsor's most recent Federal income tax return filed
prior to the time of the I-864 signing is needed for each
principal immigrant.
(2) Accompanying Dependents:
(a) Each dependent must have a signed (not required to be
notarized) Form I-864 Affidavit of Support Under Section 213A of
the Act and Form I-864A, Contract Between Sponsor and Household
Member if needed.
(b) Copies of the principal's Form I-864 Affidavit of Support
Under Section 213A of the Act and Form I-864A Contract Between
Sponsor and Household Member may be used (photocopies of
signatures
and notarizations will be accepted).
(c) Copies of supporting documents are not required for
dependents applying for visas or adjustment of status together
with the principal immigrant.  Information about the Poverty
Income Guidelines can be found in 9 FAM 40.41 Exhibit I.
Sponsors and visa applicants can find the current poverty
guidelines in the Visa Information for Permanent Immigrants
section of http://travel.state.gov.

9 FAM 40.41 PN2.10-2 When Sponsor Cannot Provide Income Tax
Returns
If the sponsor is unable to provide a Federal income tax return
for the most recent taxable year at the time of the I-864
signing, he or she must provide a valid explanation. Failure to
file does not excuse the sponsor from the requirement. If a tax
return should have been filed, the affidavit will not be
considered sufficient until the sponsor has done so and supplied
the appropriate copy for consideration with Form I-864,
Affidavit of Support Under Section 213A of the Act. If the
declared income does not meet the 125 percent income requirement
but the sponsor claims to have underreported his or her income,
an amended return will be necessary for the affidavit to be
considered sufficient. (NOTE: You do not have the authority to
request and/or require an individual to pay taxes or correctly
report income to the Internal Revenue Service (IRS). You may
advise applicants or sponsors that an original or amended tax
return will be required in order to process an immigrant visa
petition to conclusion, however.)

9 FAM 40.41 PN3 When Alien Claims Form I-864, Affidavit of
Support Under Section 213A of the Act, Is Not Required Based on
40 Quarters of Work

a. 9 FAM 40.41 N3.4-2 states that you must waive the Form I-
864, Affidavit of Support Under Section 213A of the Act,
requirement if the alien can demonstrate 40 quarters of work
under the Social Security Act. Any individual seeking to
demonstrate the number of quarters he or she has earned may
request a certified earnings record from the Social Security
Administration, which shows the number of qualifying quarters he
or she has accrued.

b. In processing an immigrant visa (IV) for a beneficiary
seeking to benefit from social security quarters, you must
require a copy of the certified earnings statement, as well as a
signed statement from the person who earned the quarters. The
certification must contain the language below. (Note: If all the
quarters being used were earned prior to December 31, 1996, you
do not need to require the signed statement.)
I, (Full Name), certify under penalty of perjury under the laws
of the United States that I did not receive any Federal means-
tested benefit, such as temporary assistance for needy families,
food stamps, medicaid, social security insurance, or state child
insurance, during any of the quarters I am using to qualify that
were earned after December 31, 1996.

c. You must include a copy of the certified earnings record
and, if applicable, the above signed statement in the immigrant
visa package. Alternatively, you may document the Form I-864,
Affidavit Of Support Under Section 213A of the Act, exemption by
including a statement you have signed to the effect that
pursuant to 9 FAM 40.41 N3.4-2 and a May 17, 2001 DHS/INS
memorandum, no I-864 is required because 40 quarters of Social
Security coverage have been established.

d. As stated in 9 FAM 40.41 PN1.2, the National Visa Center
(NVC) performs a review of documents, including affidavits of
support, for certain consular posts. In those instances where
the petitioner or the sponsor notifies the NVC that they wish to
use the social security quarters provision in lieu of an Form I-
864, NVC requires submission of the certified earnings record
and the signed statement described in 9 FAM 40.41PN3(b) before
qualifying the case for forwarding to the post. If the
petitioner and sponsor do not inform NVC that they intend to use
the social security quarters provision, NVC will require the
Form I-864 and supporting documents, including the most recent
Federal income tax return filed prior to the time of the I-864
signing.

9 FAM 42.73 PN3.4 Affidavit of Support and other Supporting
Documents

The Form I-864, Affidavit of Support Under Section 213A of the
Act, must be included in the stapled visa packet along with the
Form DS-230, Application For Immigrant Visa and Alien
Registration, and other supporting documents. Supporting
documents should be included in the visa packet but should not
be stapled or grommeted to the Form I-864 or other documents
attached to the Form DS-230. Supporting documents consist of
the following:

(1) The most recent Federal income tax return filed prior to
the time of the I-864 signing; and

(2) Evidence of assets and liabilities (if applicable).
10. The Department wants to emphasize to consular officers that
we remain committed to proper application of INA 212(a)(4) and
INA 213A.  The Department and DHS have exercised their statutory
authority to require sponsors to demonstrate the means to
maintain annual income at the established level with one tax
return, rather than three.  As indicated in the FAM notes cited,
a consular officer is authorized to require further evidence in
the following circumstances in which the I-864 and documentation
presented reflect sufficient income:

- When there is a specific reason to question the veracity of
the income stated, the consular officer can require additional
evidence of income (i.e., employment letter, recent pay
statements, or other financial data). (9 FAM 40.41 N5.4(c))

- When the facts of the case, as supported by evidence in the
record, provide a specific reason other than the passage of time
for questioning whether the sponsor's income information is
accurate, the consular officer should request current year
income information. (9 FAM 40.41 N5.4(d))

- In a particular case in which the consular officer questions
the validity of a submitted tax return, they may require the
sponsor to submit an IRS-certified copy of the tax return.(9 FAM
40.41 N5.4(a))

RICE
 



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