# Affidavit of support - I-864 or I-864EZ



## Mike Capcom (Sep 18, 2013)

Another question that has me a little stumped.

Moving to the U.S. permanently (I'm retired) with my American wife (who won't be working) it seems as though we'll have to complete either the I-864 form or the I-864EZ form.

I have sufficient funds now and will have substantially more after the sale of my Australian property. All of those funds are either in the bank or in superannuation and all in my name.

Can someone please help with regard to WHICH form I should complete?

Thanks
Mike


----------



## 2fargone (Jun 14, 2011)

Mike Capcom said:


> Another question that has me a little stumped.
> 
> Moving to the U.S. permanently (I'm retired) with my American wife (who won't be working) it seems as though we'll have to complete either the I-864 form or the I-864EZ form.
> 
> ...


Hi Mike your wife the USC will have to complete the I-864. You don't submit a form.

But, your wife will have to submit her last 3 tax returns. And based on her income you might need a cosponser.


----------



## Mike Capcom (Sep 18, 2013)

2fargone said:


> Hi Mike your wife the USC will have to complete the I-864. You don't submit a form.
> 
> But, your wife will have to submit her last 3 tax returns. And based on her income you might need a cosponser.


Understood 2FG 

That'll be interesting. She hasn't had a job since 2006 and she sure hasn't kept that paperwork. Why would we need a co sponsor? Any idea?

Thanks again Mike


----------



## BBCWatcher (Dec 28, 2012)

Yes, your wife is responsible for the I-864 filing.

OK, now we come to qualifying. The first question is whether your wife can demonstrate adequate income. Adequate for a 2 person household is just under US$20,000 per year. If she can, great, welcome to the United States.

Part of her demonstration of that income will include submitting U.S. tax returns. If she hasn't complied with her U.S. tax filing obligations then now would obviously be the time for her to fix that. (The IRS's Streamlined Program may be quite interesting to her.) She is aware she has a filing obligation, correct? (And FinCEN Form 114, too.)

OK, so if she cannot demonstrate adequate income, what happens? She's still got to have those tax and financial filings current -- that's business as usual -- but there's a "Plan B" option: demonstrating adequate wealth. "Adequate" means up to 5 times the annual income requirement, or about US$100,000 for a two person household. (Sometimes less, but plan on $100K.) The good news is that that wealth can include yours, though she'll still be responsible for documenting that. Also note that the National Visa Center considers whether tapping that wealth is feasible within one year (i.e. a liquidity assessment) and whether doing so would cause undue hardship. So it's not quite $100K net worth -- it's a little bit different than that.

She should read the instructions and rules carefully. This is her responsibility. She's the sponsor.

Failing "Plan B," there's a "Plan C" potentially available. She could try to enlist a qualified co-sponsor, usually a very generous family relative. But I don't think she gets as far as Plan C because it sounds like you'll be fine with Plan B, the asset test.


----------



## Mike Capcom (Sep 18, 2013)

BBCWatcher said:


> Yes, your wife is responsible for the I-864 filing.
> 
> OK, now we come to qualifying. The first question is whether your wife can demonstrate adequate income. Adequate for a 2 person household is just under US$20,000 per year. If she can, great, welcome to the United States.
> 
> ...


Good heavens ... you are SO generous with your time. You just cannot know how much I appreciate your efforts and they'll NEVER be forgotten my friend.

OK, so back to your comments one by one.

_OK, now we come to qualifying. The first question is whether your wife can demonstrate adequate income. Adequate for a 2 person household is just under US$20,000 per year. If she can, great, welcome to the United States._

No she can't as I've supported her from day one since she moved to OZ and she hasn't worked since 2006.

_Part of her demonstration of that income will include submitting U.S. tax returns. If she hasn't complied with her U.S. tax filing obligations then now would obviously be the time for her to fix that._

I assume that's under "not applicable" territory given my last sentence?

_OK, so if she cannot demonstrate adequate income, what happens? She's still got to have those tax and financial filings current -- that's business as usual_

Is that correct even though her last tax filing was in 2006?

_demonstrating adequate wealth. "Adequate" means up to 5 times the annual income requirement, or about US$100,000 for a two person household. (Sometimes less, but plan on $100K.) The good news is that that wealth can include yours, though she'll still be responsible for documenting that. _

That's easy as I have triple that amount right now (and the supporting evidence). In any event, the form seems to provide for listing the Australian house value (no mortgage and owned outright with a value of $700K plus) which I've not included in the calculations.

All make sense?

My best regards Mike


----------



## Bevdeforges (Nov 16, 2007)

Just a word here. If your wife has had no income in her own name over the past few years, she will still have to backfile those returns to satisfy the requirements of the Immigration Dept., but there is no question of having to deal with the "Streamlined Compliance" program. Anyone with insufficient income (i.e. income less than the threshold amount for their filing status) does not need to file, so there is no "compliance" issue to resolve. She will just be filing to show that she did not have to file. (Yeah, tax rules are like that sometimes...)
Cheers,
Bev


----------



## Mike Capcom (Sep 18, 2013)

Bevdeforges said:


> Just a word here. If your wife has had no income in her own name over the past few years, she will still have to backfile those returns to satisfy the requirements of the Immigration Dept., but there is no question of having to deal with the "Streamlined Compliance" program. Anyone with insufficient income (i.e. income less than the threshold amount for their filing status) does not need to file, so there is no "compliance" issue to resolve. She will just be filing to show that she did not have to file. (Yeah, tax rules are like that sometimes...)
> Cheers,
> Bev


Thanks Bev

Love you work 

Mike


----------



## BBCWatcher (Dec 28, 2012)

I agree with Bev, per usual, though with two caveats. If your wife held any foreign financial accounts with a total value of US$10,000 or more at any point in time, even jointly, then she had/has an obligation to file "FBARs" (U.S. FinCEN Form 114) annually. There is a published penalty for non-filing/late filing those financial reports. While it's extremely unlikely that "book" penalty would be assessed if she gets caught up now (and if it was a simple, honest oversight), it's prudent to use the IRS's Streamlined Program since it offers explicit relief from those hypothetical FBAR penalties.

Yes, it seems strange that your wife apparently did not have a tax filing obligation with the IRS (Form 1040) due to insufficient income, but USCIS still wants to see the tax forms she wasn't required to file. That's how it goes sometimes. Presumably her Form 1040 will have lots of zeros. 

There's another reason to favor the Streamlined Program: it "closes out" all prior tax years. Once the Streamlined filings are approved the IRS will not go back and litigate nonfiled prior tax years. If it's subsequently discovered that your wife made a mistake and actually had reportable/taxable income in some past tax year when she didn't file, no problem.

In other words, the Streamlined Program may or may not provide additional value versus traditional late filing. But it doesn't _subtract_ value from traditional late filing. So even if she's fully compliant it's still a good program for these purposes (satisfying USCIS).


----------



## Mike Capcom (Sep 18, 2013)

BBCWatcher said:


> I agree with Bev, per usual, though with two caveats. If your wife held any foreign financial accounts with a total value of US$10,000 or more at any point in time, even jointly, then she had/has an obligation to file "FBARs" (U.S. FinCEN Form 114) annually. There is a published penalty for non-filing/late filing those financial reports. While it's extremely unlikely that "book" penalty would be assessed if she gets caught up now (and if it was a simple, honest oversight), it's prudent to use the IRS's Streamlined Program since it offers explicit relief from those hypothetical FBAR penalties.
> 
> Yes, it seems strange that your wife apparently did not have a tax filing obligation with the IRS (Form 1040) due to insufficient income, but USCIS still wants to see the tax forms she wasn't required to file. That's how it goes sometimes. Presumably her Form 1040 will have lots of zeros.
> 
> ...


Hi BBCW

It begs another question or two so forgive me. She hasn't worked since 2007 (not even a full year which was her last year in the states) and she hasn't worked here since moving here in '07.

She's never held any financial accounts (domestic or foreign) anywhere near that amount and was simply working from paycheck to paycheck.

So are you saying she should have still filed a Form 1040 in any year since she last worked? Could you kindly clarify?

On another note, I just completed the I-864 and I-864A forms

Mike


----------



## BBCWatcher (Dec 28, 2012)

There are two separate filing requirements here, so let's keep them separate.

First, there's an annual financial account filing requirement called "FBAR." That's FinCEN Form 114, specifically. It's due every June. If you're a U.S. person (U.S. citizen, U.S. national, or U.S. resident) with foreign financial accounts that (together) total to US$10,000 or more -- including joint and signature accounts -- then you have to file that form. If you don't meet the filing threshold, then you don't.

There's a separate tax filing requirement (IRS Form 1040 and its related forms). Oversimplifying only slightly, if you have total worldwide income less than US$3900 and total self-employment income less than US$400 you probably are not required to file a U.S. tax return. (It's a little more complicated than that, but that short version is not too far off the universal reality.)

Yes, it's possible your wife was not/is not required to file either financial reports or tax returns.

That said, USCIS wants some past tax returns _even from sponsors who were/are not required to file_. The IRS allows people to file tax returns even in circumstances when they're not required to do so, so there's no conflict.

Sometimes it's a really, really good idea to file a U.S. tax return even when not required to do so because of the way the U.S. tax code works. The U.S. has a few "refundable tax credits" available to certain individuals and households. These tax credits can reduce your income tax owed below zero. In other words, it's possible to have a negative income tax rate and thus receive free money from the IRS. Here's what I think is a full list of the refundable tax credits:

Earned Income Tax Credit (EITC)
Adoption Tax Credit (through tax year 2011)
Additional Child Tax Credit
American Opportunity Tax Credit
Homebuyer Credit
Making Work Pay Tax Credit (through tax year 2010)
Credit for Excess Social Security Withholding
Health Coverage Credit

Also, individuals living in a comparatively high income tax jurisdiction may wish to file (even if they are not required to do so) in order to document and "bank" excess Foreign Tax Credits. For example, let's suppose you and your wife (as a household) paid comparatively high Australian income tax in tax years 2012 and 2013, and you expect to do the same in 2014. One possible option is to file a joint U.S. tax return for those tax years in order to "bank" Foreign Tax Credits in the U.S. Assuming your immediate U.S. income tax is zero, and then you move to the United States, you can "spend" those banked credits to offset future U.S. income tax -- up to 10 years into the future. In other words, if you file a certain way, the U.S. can give you some credit against future U.S. taxes for any higher Australian income taxes you've had to endure. (It's a _bit_ more complicated because the U.S. has a few income categories for purposes of the Foreign Tax Credit, and you cannot "trade" between categories, but I've described the general idea pretty well.)

Yes, the non-resident alien spouse (you) is allowed to agree to participate in a joint U.S. tax filing. That's optional, and it would only be advised if there's some financial advantage. "Probably not," but your mileage may vary.

Anyway, this is probably more background information than you wanted to know, but there you go.

Regarding your filling out Form I-864, great, but I think your wife needs to at least carefully review and sign the form. You can _assist_ your wife (if she's willing), but you must both always remember who has the legal responsibility for which form. She's the sponsor, and she's sponsoring you -- even if she's relying primarily or solely on "your" financial assets to qualify as a sponsor. This is not a small point. If she's unable to answer at least simple questions about any form she's responsible for then this process may not go well at all.


----------



## Mike Capcom (Sep 18, 2013)

Hi BBCW. This is Mike's wife. Thanks for all your help. I will hit the IRS website to check out the streamlined compliance program. No worries on much of it, I'm just surprised, yet not TOO surprised that I would need to supply tax filing for yrs I wasn't working (the IRS strikes again!).

Also, Mike filled out the form with me telling him what to type, then I double checked and re-did the incorrect areas myself. He is somewhat ahead of us at this point, but that is not necessarily a bad thing, he has the bit in his teeth and wants to run. 

My only question is on the signature acct. Mike has the acct, my name is not on the acct. but I have a card with my name on it, as a signatory(?), and can withdraw funds (although I cannot deposit w/o him with me..go figure). However, this is not a 'joint account'. I have a husband who hates paperwork, so we didn't create a joint account.
So, that would count I I would need to file FBAR?

Thanks again for your patience and knowledge sharing!


----------



## BBCWatcher (Dec 28, 2012)

It's really USCIS striking here, so credit (or blame) where due. The IRS is (evidently) not bothered that you didn't file tax returns during years when you didn't have income. In fact, if you qualified for any refundable tax credits, the IRS (and U.S. taxpayers) are very pleased indeed that you didn't file to claim your free money.  (And if you file late then the IRS gets to keep that free money without paying you any interest. That's a pretty good deal for the IRS and other taxpayers, too.)

Moving on to FBARs, that's a _great_ question regarding your possession of a supplementary card tied to a non-joint account and whether your card triggers FBAR (FinCEN Form 114) filing requirements. First of all there's no penalty for reporting an account that you're not required to report -- unless (as examples) you're laundering drug money, financing terrorism, trading with embargoed countries, supporting a child pornography business, selling human organs, trading in endangered species, and/or evading taxes. (Doing any of those things involves penalties whether or not you report the accounts underlying those activities.) So the general advice is to err on the side of disclosure. Second, please do read that form's rules very carefully to arrive at your own determination. I can only offer my personal opinion. Please don't ever rely solely on the random kindness of Internet strangers with respect to tax and financial reporting matters.

In my view if you have a supplementary _credit card_ that is not _directly_ tied to your husband's bank account, even if that credit card is "programmed" for automatic full balance payment every month, then that credit card account would not be FinCEN Form 114 reportable. If your supplementary card is a direct debit/ATM card tied to that account then you would have (in my view) what the form calls "signature or other authority" over the account, thus the account would be reportable. One must give at least some weight to every word in the rules, and FinCEN Form 114 obviously contemplates that certain non-joint accounts are still reportable. Otherwise the words "signature" and "other" would be meaningless, and they aren't meaningless.

To make things slightly more complicated, some households have an "everyday spending" account tied to a debit/ATM card. Certain members of the household then might have other accounts in their individual names. If that "everyday" card is tied only to the everyday spending account, and if the card doesn't allow transferring funds from other accounts (at least not trivially easily), and if the everyday spending account (plus other accounts) totals less than US$10,000 at every moment in time, then (in my view) that account wouldn't be FBAR reportable. This arrangement is more believable if the everyday spending account is held at a different financial institution from the other accounts. I do precisely that sort of thing as an individual -- not for FBAR reasons, but rather in order to provide some extra measure of protection if my debit/ATM card is stolen. Even if everything goes wrong my losses are kept limited because I don't keep much money in my "everyday spending" account.

"Payable on Death" (PoD) accounts are not FBAR reportable if you're only the beneficiary and do not have any other access or connection to the accounts.

A Power of Attorney (PoA) could give you "other authority" over someone else's financial accounts and thus make those accounts reportable. It depends on the type of PoA.


----------



## Mike Capcom (Sep 18, 2013)

Ah, gotcha. I guess my excuse for late filing will be...sorry, didn't know you existed (not exact wording I'll use. ha). *shakes head*. I was on the IRS website when you replied. We (in spite of all the questions we ask) are a researching household). the atm/debit card is tied right into the acct. So I'm required. I Can't tell you how much I appreciate you bringing this to my (our) attention. Better to face it head on and quickly, then get hit with it as a big surprise later on in the immigration process. Glad Mike was powering ahead to research and found you. Looks like I'm off to the rodeo.
Many, many thanks,
Laurel


----------



## BBCWatcher (Dec 28, 2012)

USCIS doesn't require copies of your FBAR forms as far as I know. However, even though it's a separate requirement, I thought I'd better mention it.

You would include your past FBARs as part of IRS Streamlined Program participation if you choose that path. Regardless, I'd tidy up that bit of missing paperwork. It'd be, shall we say, "odd" if you're reporting the accounts to USCIS (for immigration asset test purposes) but not to the U.S. Treasury (assuming they're FBAR reportable).

When filing your tax returns you might meet the threshold for "FATCA" (IRS Form 8938), a fairly new (from tax year 2011 as I recall) IRS form that (if required) you'd attach to your 1040. FATCA is yet another foreign financial accounts report, completely separate from FinCEN Form 114 and with slightly different rules. FATCA filing thresholds are much higher, though, so you might not have to fill out that form at all. You are not required to file Form 8938 unless you are required to file a tax return with the IRS, but in this case since you're going to be filing tax returns (to satisfy USCIS) you'll need to file _correctly_, and that includes handling the potential form attachments such as FATCA.

Having fun yet? 

As a reminder, I'd recommend that you both read IRS Publication 523 since the U.S. income tax consequences of that upcoming home sale can vary significantly depending on the circumstances, including the timing of the home sale.


----------



## Mike Capcom (Sep 18, 2013)

yep. UGH. loads of fun. yeah. I'll probably be giving the IRS a call in the morning. good times. Pretty sure I'll escape the 8938 (yay!!). I'd say I was absolutely sure, since we don't meet the threshold (I've never been so happy not to have that kind of $$ in an acct!), but really, you're right. Depends on the house sale, so it may come up later. It didn't sound fun at all when I read up on it. I had the same thought about how it would appear to the treasury. I've got the appropriate IRS webpage bookmarked, the phone number written down, and will NOT be tackling this til after my second cup of coffee and some recommended reading.


----------



## Bevdeforges (Nov 16, 2007)

Don't get too tied up in knots on this tax stuff. There is an IRS staff member here in the Paris office who has advised people NOT to file in certain circumstances, saying that they would be filing "frivolous" returns and just annoying the IRS by filing when they aren't obliged to. (Yeah, I wonder what he's up to, too, but I do appreciate the advice.)

To be honest, they aren't going to hit you with any sort of penalties for failure to report an account that is so questionable (i.e. as to whether or not it's reportable) as your non-joint account (particularly if it pays only the pathetic rates of interest that are common these days!).

On the house sale, it may or may not be reportable, depending on if the house was your primary residence and what the actual gain on the sale was. And even the temporary spike in your bank account may or may not be particularly "noticeable" - though generally it's best if you're in doubt to just report it (on the FBAR) and be done with it. They don't really review those filings in great detail unless something turns up on your tax filings that looks "funny." 

You may want to indicate on your back tax filings (i.e. your 0 returns) that you are filing preparatory to sponsoring your NRA husband for a Green Card. That should at least assure that they enter your filings into the system, since you will be needing to "prove" that you are up to date by the time you file a petition to sponsor him. 
Cheers,
Bev


----------



## Mike Capcom (Sep 18, 2013)

thanks Bev! That sets my mind at ease a bit. Although it's never a grand time dealing with Uncle Sam. Especially since I've ignored him for the last seven years. oops.  I will definitely indicate 'filing preparatory to sponsoring my NRA husband'. good advice. I have had the Beatles singing 'tax man' in a running loop in my head for the last half hour!
Cheers!
Laurel


----------



## BBCWatcher (Dec 28, 2012)

Does USCIS require tax transcripts from the IRS? If they don't, it doesn't actually matter whether the IRS processes those zero returns or not. Keep proof of delivery -- ordinary registered airmail from Australia is perfectly fine -- and that's that.

I'm always in favor of reducing the "worry set," and that's another thing not to worry about.


----------



## Mike Capcom (Sep 18, 2013)

Me back again .... 

Yes, my wife has to file for the last six years. I assume she has the file individually six times?

In doing so, I have the highest levels of my bank account in each of those years but of course, they're in AUD, not USD. 

Should I use the current 2014 exchange rate for the conversion or do I need to establish the exchange rates in each of those years?

Many thanks again

Mike




.ang the IRS


----------



## BBCWatcher (Dec 28, 2012)

The IRS's Streamlined Program requires filing 6 years of FBARs (FinCEN Form 114) plus the current year when it's due (2014 due in June, 2015), that's correct. So yes, it's 6 individual reports: 2013, 2012, 2011, 2010, 2009, and 2008. I'm also assuming she met the threshold for filing in all of those years.

Even though the form changed sometime in those years it's OK to use the current FinCEN Form 114 edition for backfiling. (There's no other option, actually.) FinCEN Form 114 is electronically filed, and you include copies with your Streamlined Program submission if you're going that route.

You would use different exchange rates for each of those years. The IRS publishes yearly average exchange rates, and those rates are perfectly acceptable to use for these purposes. (Other options are possible, but the IRS's rates are fine.) I'll repost them here for you:

2013: 1.078
2012: 1.005
2011: 1.008
2010: 1.134
2009: 1.332
2008: 1.245

So, for example, to convert AU$15,000 in 2010 to U.S. dollars, take the number 15000 and divide by the IRS's 2010 exchange rate (1.134). That's US$13227.51 -- but call it US$13228. On these FBARs you should always round up the final calculation to the nearest whole dollar.


----------



## Mike Capcom (Sep 18, 2013)

BBCWatcher said:


> The IRS's Streamlined Program requires filing 6 years of FBARs (FinCEN Form 114) plus the current year when it's due (2014 due in June, 2015), that's correct. So yes, it's 6 individual reports: 2013, 2012, 2011, 2010, 2009, and 2008. I'm also assuming she met the threshold for filing in all of those years.
> 
> Even though the form changed sometime in those years it's OK to use the current FinCEN Form 114 edition for backfiling. (There's no other option, actually.) FinCEN Form 114 is electronically filed, and you include copies with your Streamlined Program submission if you're going that route.
> 
> ...



Brilliant stuff BBC 

Yep, she just filed this morning for all 6 years.

One small problem ... at least I hope it ISN'T a problem. I went to the website below that showed the mean average exchange rates over the past 6 years and it was those figures I used to convert AUD to USD that she included in the filed forms.

Yearly Average Exchange Rates - Oz Forex Foreign Exchange

So I used yours you so kindly posted just now in a s/sheet for the purposes of comparison against what was "declared" and the result is that the USD dollar numbers in all six years that Laurel used are around $1000 - $1500 MORE in every year. That is, I've overstated the numbers .......

Will that matter? I'd hate to tell her she has to do it all again.

Thanks kindly Mike


----------



## BBCWatcher (Dec 28, 2012)

That's perfectly fine.


----------



## Mike Capcom (Sep 18, 2013)

BBCWatcher said:


> That's perfectly fine.


Thank you yet again BBCW I sure hope we're closer to the end of this arduous road.

Forms all done and ready to roll, medical next Monday, house sale well under way, house purchase in the U.S. all good, and next challenge is that blasted consulate trip to Sydney.

My gratitude  Mike


----------



## Bevdeforges (Nov 16, 2007)

They aren't real sticklers for what conversion rate you use. If you hunt around a bit on the IRS website, you'll see that they will pretty much accept any reasonable published rate - so you can use the IRS conversion tables or any of the various exchange rate tables put out by banks or forex companies.

They also aren't big sticklers on the precision of the high balances you report to them. I often add a few thousand $US to whatever number I calculate, just to allow for "unforeseen circumstances." 
Cheers,
Bev


----------



## Mike Capcom (Sep 18, 2013)

Bevdeforges said:


> They aren't real sticklers for what conversion rate you use. If you hunt around a bit on the IRS website, you'll see that they will pretty much accept any reasonable published rate - so you can use the IRS conversion tables or any of the various exchange rate tables put out by banks or forex companies.
> 
> They also aren't big sticklers on the precision of the high balances you report to them. I often add a few thousand $US to whatever number I calculate, just to allow for "unforeseen circumstances."
> Cheers,
> Bev


Thank you Bev

That comes from both me and Laurel 

Take care 

Mike


----------

