The Department of State (DOS) briefly changed the requirements for sponsors who must submit evidence of tax filing, along with the affidavit of support. The DOS website indicated that sponsors must submit a tax transcript rather than a copy of the Form 1040 that they filed with the Internal Revenue Service (IRS). However, this conflicted with the Foreign Affairs Manual (FAM), which indicates that the sponsor can submit either a photocopy of the tax return or an IRS-generated tax transcript with the Form I-864. 9 FAM 302.8-2(C)(4)(b)(1)(a). It also conflicted with the regulations, which allow the sponsor to submit a copy of the tax return. 8 CFR § 213a.2(c)(2)(i)(A). Fortunately, the DOS changed its website to only recommend that applicants submit the tax transcript rather than to mandate it.

The new language on the DOS website states: “NVC strongly recommends the submission of tax transcripts since they typically provide the information necessary for an evaluation of completeness of the Affidavit of Support and result in more efficient processing. Sponsors may submit copies of tax returns but must comply with the file size limits for electronic uploads to CEAC and could be delayed by requests for additional documentation.”

For those who wish to follow this DOS advice, use Form 4506-T to request tax transcripts from the IRS. The form can be downloaded from the IRS website at http://www.irs.gov/pub/irs-pdf/f4506t.pdf. The sponsor also can request a transcript by calling 1-800-829-1040. The sponsor should request that the transcript be sent directly to his or her address, not to the National Visa Center.

While sponsors who submit a photocopy of the income tax returns must include a copy of the Form W-2 and Form 1040, they do not include copies of these forms if they are providing an IRS transcript. The only exception is if they filed a joint income tax return with their spouse and are qualifying using only their individual income. Adjudicators Field Manual (AFM) Chapter 20.5(i)(1). If the sponsor filed the tax return electronically, no “hard copy” will exist, in which case they can only submit an IRS transcript.

The USCIS generally expects the sponsor, after April 15 of any given year, to have filed a tax return for the previous year. If the sponsor requested an extension of time to file his or her tax returns, he or she should include a copy of the income tax form requesting an extension and a copy of the income tax return from the previous year. The tax form for requesting an extension is IRS Form 4868.

It is not necessary to have the IRS certify the transcript or photocopy of the return unless it is specifically requested. Telefile tax records are not acceptable proof of filing. The sponsor should not submit copies of state income tax returns. Nor should the sponsor submit tax returns filed with a foreign government unless the sponsor claims no requirement to file a U.S. tax return and wishes to rely on the foreign return to establish the amount of income that is not subject to tax in the United States.

Although not required, the sponsor may also submit evidence of federal tax filing for the two prior years. These additional returns may be included if the sponsor is concerned that that his or her most recent tax return does not clearly reflect his or her ability to maintain income at the 125 percent level. This would be recommended if the sponsor, for example, had reported sufficient income on the two prior tax returns, as well as estimated current income, but reported an insufficient amount in the last tax return. In addition to an employer’s letter, the two prior tax returns would help support the sponsor’s claim of current financial eligibility. If the sponsor was required to file a federal income tax return during any of the previous three tax years but did not do so, he or she must file all late returns with the IRS and attach an IRS-generated tax transcript documenting the late filing before submitting Form I-864.

If the sponsor did not file a federal income tax return last year because he or she was not obligated to file one, he or she must attach a written explanation. Proof of insufficient income for tax liability might consist of “a written statement from the sponsor, signed under penalty of perjury, attesting to the amount of his or her income for the relevant year and to the fact that a tax return was not required by law.” AFM Chapter 20.5(i). The following is the income threshold for tax liability for a single person under 65 with no dependents for the following tax years:

• 2018: $12,000
• 2017: $10,400
• 2016: $10,350

If the sponsor is exempt from tax filing due to a reason other than insufficient income, he or she must “attach a typed or printed explanation including evidence of the exemption and how [he or she is] subject to it.” Form I-864 Instructions p. 8. The sponsor in that case must submit evidence of the amount and source of that exempt income, as well as “a copy of the provisions of any statute, treaty, or regulation that supports the claim that he or she had no duty to file an income tax return with respect to that income.” 8 CFR § 213a.2(c)(2)(i)(B). Remember that residence outside of the United States does not exempt U.S. citizens or lawful permanent residents from filing a U.S. Federal income tax return.

The sponsor or household member must establish by a preponderance of the evidence that he or she had no duty to file the tax return. Being exempt from the income tax filing requirement does not exempt the sponsor from the affidavit of support filing requirement. Similarly, obtaining a joint sponsor does not relieve the sponsor from the affidavit of support and income tax filing requirement.

Self-employed sponsors should have completed one of the following forms with their Federal income tax return: Schedule C (Profit or Loss from Business), Schedule D (Capital Gains), Schedule E (Supplemental Income or Loss), or Schedule F (Profit or Loss from Farming). They must include each and every Form 1040 Schedule, if any, that they filed with their Federal income tax return. Form I-864 Instructions p. 9.