I have a H1B with income way above poverty line since June 2011. I got married in January 2012. My wife (also my sponsor and the green card holder), has never had any income in the US and she is currently a grad student in the US. She moved here in January 2012. She got her green card in ~2004 but kept applying for a re-entry permit till now.
I understand that I-864 has to be filled by my wife, On I-864, there is a question in Part 6 "My total income as reported on my Federal tax returns for the last 3 years". Should I be putting in my wife's income ($0) and mention that she has never filed taxes in the US (except joint taxes in 2012)? Or should this have my income here? We filed joint taxes in 2012 so should the income for 2012 be our joint income (from Form 1040) and the rest be 0?
I'll try to answer all your questions, although you asked several. First, yes, your wife must file an I-864. She would list her occupation as unemployed. She would not check the box that she has filed tax returns for the past 3 years. She would prepare an addendum stating that she has not worked and not had sufficient income to be required to pay taxes (although, if she earned income outside of the country, as a lawful permanent resident she would still be required to pay a U.S. tax return - you should consult an accountant about that, but just because you earned income outside of the country doesn't mean you don't have to pay taxes on it). File your joint tax return for 2012, but also attach your W-2 to show the income was yours and not your wife's. You will not be able to count your income because you are the beneficiary of the I-864 (you basically can't be the intending immigrant and the contributing household member.) You will need a joint sponsor unless your wife has sufficient assets to meet the affidavit of support requirements, but that is unlikely and cumbersome. It would be simpler to just find a joint sponsor. Have you ever worked in the U.S. before and paid into the social security system? Once you have 40 quarter credits of contributions, you would be exempt from needing an I-864. If you have only worked one year so far, you probably only have 4 quarter credits. The short answer to your question is - consult a qualified immigration attorney for assistance and guidance. This is one of the most important things you and your wife will ever do, and you will want to make sure it is done correctly the first time. Best of luck to you.
I agree with my colleague.
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
This is a complex, compound question implicating both the Internal revenue Code and US Immigration & Nationality act. I urge you to consult directly with an immigration attorney AND CPA or tax attorney before making any errors.
In general, the intending immigrant cannot use his income for purposes of the sufficiency of an I-864. The one exception is if the intending immigrant is being sponsored by a spouse, a child is not also immigrating, and the immigrant's income during the tax year at issue was earned lawfully (i.e. he/she had work authorization). It is not necessary to complete the I-864A form in this situation.
8 CFR 213A.2
(C)(1) The sponsor's ability to meet the income requirement will be determined based on the sponsor's household income. In establishing the household income, the sponsor may rely entirely on his or her personal income, if it is sufficient to meet the income requirement. The sponsor may also rely on the income of the sponsor's spouse and of any other person included in determining the sponsor's household size, if the spouse or other person is at least 18 years old and has completed and signed an affidavit of support. A per son does not need to be a U.S. citizen, national, or alien lawfully admitted for permanent residence in order to sign an affidavit of support.
(2) Each individual who signs Form I-864A agrees, in consideration of the sponsor's signing of the Form I-864, to provide to the sponsor as much financial assistance as may be necessary to enable the sponsor to maintain the intending immigrants at the annual income level required by section 213A(a)(1)(A) of the Act, to be jointly and severally liable for any reimbursement obligation that the sponsor may incur, and to submit to the personal jurisdiction of any court that has subject matter jurisdiction over a civil suit to enforce the contract or the affidavit of support. The sponsor, as a party to the contract, may bring suit to enforce the contract. The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.
(3) If there is no spouse or child immigrating with the intending immigrant, then there will be no need for the intending immigrant to sign an affidavit of support, even if the sponsor will rely on the continuing income of the intending immigrant to meet the income requirement. If, however, the sponsor seeks to rely on an intending immigrant's continuing income to establish the sponsor's ability to support the intending immigrant's spouse or children, then the intending immigrant whose income is to be relied on must sign the Form I-864A.