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USCIS Accepts Latest "One-Year" Tax Return (Not Three Years) for Affidavit of Support I-864 Supporting Documentation. The USCIS has changed its policy for supporting financial documents for Affidavit of Support, I-864, from the three-year tax returns to one-year tax return if the latest tax return establishes 125% of poverty guideline income. This will help tremendously those family immigration sponsors or co-sponsors or joint sponsors who were without income or insufficient income two or three years back but currently have sufficient income during the past one year.

This memorandum notifies adjudicators that USCIS has determined, as permitted by section 213A(f)(6)(B) of the Immigration and Nationality Act (Act), that a person completing an Affidavit of Support (Form I-864) on behalf of an adjustment of status applicant is only required to file one Federal income tax return, for the tax year that is most recent as of the date the Form I-864 was signed, rather than having to submit a Federal income tax return for each of the three most recent tax years. This memorandum also clarifies how USCIS officers are to determine the sufficiency of a Form I-864.

Effective immediately, this policy memorandum supersedes all conflicting provisions in previous memoranda and will be incorporated into 8 CFR 213a, in a separate rulemaking, and section 20.5 of the Adjudicator’s Field Manual at a later date.

Section 213A(f)(6)(A)(i) of the Act 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 Act provides the Secretary of Homeland Security with discretion in adjustment of status
USCIS policy regarding Form I-864, Affidavit of Support cases to allow a sponsor to file only his or her most recent Federal income tax return. USCIS has adopted this alternative.

Therefore, for any Form I-485 filed on or after the date of this memorandum, the sponsor shall not be required to file any Federal income tax return for any year other than the tax year immediately preceding the sponsor’s signing of the Form I-864. For example, if the sponsor signed the Form I-864 after April 15, 2005, only the sponsor’s 2004 Federal income tax return would be required. However, the sponsor may file the three most recent returns if the sponsor believes that the additional returns will make it more likely that the Form I-864 will be found to be sufficient. This rule shall apply to petitioning sponsors, as well as substitute or joint sponsors signing a Form I-864 for an adjustment case.

For any Form I-485 filed before the date of this memorandum, the sponsor should have filed the three most recent income tax returns. An officer may encounter a case in which the sponsor has included the most recent income tax return but not one or both of the two earlier returns. Given the change of policy made by this memorandum, adjudicators are no longer required to issue a request for evidence (RFE) for the missing earlier return(s).

Note also that IRS will, without charge, issue a taxpayer a transcript of the taxpayer’s income tax return if the taxpayer files IRS Form 4506T. For purposes of the affidavit of support requirements, officers shall accept an IRS-generated transcript as a true and correct “copy” of the sponsor’s return. Since the IRS itself issues the transcript, it will not be necessary for USCIS to request any missing Forms W-2 or 1099 if the sponsor submits a transcript, rather than a photocopy, of the tax return.

A USCIS officer may also decide that a request for evidence is not necessary in a case in which the sponsor filed a photocopy of the tax return, instead of a transcript, but did not submit the Forms W-2 or 1099. A decision not to RFE for the W-2 or 1099 will be proper if the officer concludes that the evidence of record, taken as a whole, establishes that the information on the tax return is true and correct.

USCIS officers shall, as a general rule, determine the sufficiency of a Form I-864 based upon whether evidence in the file establishes that the sponsor has the means to maintain an annual income at the applicable threshold set forth in the Form I-864P, Poverty Guidelines, from the calendar year in which the Form I-864 was filed. Accordingly, adjudicators shall determine whether the current income listed on Form I-864 is at least 125% (or 100% as applicable) of the governing threshold set forth in the Poverty Guidelines. Adjudicators shall also determine whether the sponsor’s total income (line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A), or adjusted gross income for those who filed IRS Form 1040EZ (line 4 of the 2004 IRS Form 1040EZ), meets the Poverty Guidelines threshold. Note, when reviewing the prior year's tax return submitted with the Form I-485, USCIS officers should judge the income information against the poverty guidelines applicable at the time of submission.


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