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Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28077
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I would like to file for green card through marriage and meand

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I would like to file for green card through marriage and meand my husband have everything pretty much filled out. he is us citizen. i am out of status (came here on j-1 5.5 years ago and it expired). we finally got to the point where we could aford to have a wedding and file our papers but he has not filed his taxes for last couple of years (we had a business and then had to close it). what should we do now? find a sponsor? or can i file everything but i-864 so it will at least give us some time to catch up with his taxes?

Hello, my name is Judith. Thank you for this opportunity to answer your questions.

Congratulations on your wedding.

The I-864 is required with the I-485 and if you don't send it they will send out a Request for Evidence and only give you 30 days to reply.

Has he earned the required 125% income the past three years?



Customer: replied 3 years ago.

When we had our business he did not file his personal taxes (2 years ago), After that he was working as independent contractor and he did not file his taxes (but he did make over 125%). and this year yes he has been making over 125%

Unfortunately, he is going to have to file his returns at least for the past 3 years and make a payment agreement with the IRS if he owes taxes.

He would not need a joint sponsor since his income was above the 125% of poverty level.

Even if he wanted to use a joint sponsor to try to get out of filing taxes he cannot get around it because USCIS makes him explain why he did not file tax returns. He cannot lie, then he has fraud with immigration and the IRS.

I understand how desperate you are to do this process now that you have the huge filing fees saved up. But if you file and don't have everything in order, you can risk loosing your filing fees because if you don't reply to the RFE in 30 days they deny your case.

Therefore, it is better to put everything together right and not run this risk.


Customer: replied 3 years ago.

i know you said he would not need a joint sponsor but what about my income? it is not as much and it is not more that 125% but i have been working all this time and i have been filing my taxes every year. Does that count for anything?


Have you been working without authorization?


Customer: replied 3 years ago.

yes my j-1 expired after 3 months since the moment i got here and i have been working since then for over 5 years with no authorization. for all those years i did not earn enough but this year i should be a little over 125%

USCIS will not accept your income towards the affidavit of support because you earned it working without authorization.

Only lawfully earned income from the beneficiary is allowed to be counted.

So you will have to totally rely on your spouse's income.


Customer: replied 3 years ago.

but it is not bad that i have been working without authorization is it?

It is violating the immigration law.

However, because you are applying for your green card through a US citizen spouse the law does allow you to be excused for it and still get your green card.

I do have one question for you, what kind of J1 did you have? Was it a summer work/travel program? Does the visa in your passport say you are or are not subject to the 2 year home residency rule?



Customer: replied 3 years ago.

yes it was j-1 for summer work/travel program and it does say not subject to the 2 year

Ok, then there is no problem with that.

So your husband will have to get the tax returns filed and a payment plan with the IRS.


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