Tax History

[Wesman]

Hi All,

I have a scenario here that I would like some input on, and some seasoned advice on some ways to proceed.

My wife (South African) and I (US Citizen) were resident in Mexico for 8 years, and she received her B2 visa at the Tijuana consular office in Jan 2003. We got married in San Diego in Apr 2003 but continued to reside in Mexico (read: no intention of immigrating to US) until Jan 2006 when we parted ways with the ministry we were working with there, and had no other means to live except returning to the USA, and moved here to the States (into my Mom's house).

Her I-94 expired in May '06, but US Visa is good until Jan '08. Her Mexican Residency (FM-3, proof of residing outside USA) expired in January '07.

Now since we moved here into my Mom's house in Feb '06, I have been looking for work and being supported financially by my mother (read: no income, nor tax history since 1997).

I have just landed an Engineering job after hunting for so long, that pays $78,000/year, and we're about to relocate to Georgia for this job.

My mother doing the affidavit of support is out of the question, so I'm the only support available.

We also have 2 US Citizen children born in San Diego Nov '03 and Jan '06.

Like I said, her B2 US visa expires in Jan '08, and I have no idea what the implications of that are, but since she is no longer resident in Mexico, her home country would be South Africa. It would be completely unacceptable to return there to process a consular application, oh no no.

So I guess what I'm wanting to find out is what is my best course of action at this time. Do we just fly under the radar for another 3 years until I have sufficient tax history, or is there an alternative procedure available?

I know we can just hire an immigration attorney, which would likely be the course we're forced to go to make sure things are done right, but what I want to find out is if by waiting too long are we preparing for a HUGE problem later?

So many thanks to all of you here! I trust there are those that know enough to give more than the standard "Go see a lawyer" answer. I totally understand that nothing here is legally binding or anything, and just want some honest advice from people that have been there. This situation is the type of thing nightmares are made of....

Again, many thanks!

[PraetorianXI]

I do not see any BIG problem... except for the Fact She entered on a B-2 visa (as a VISITOR) with the INTENTION of LIVING in the US. That is abuse of such visa.

See this:

30-60-90 rule

Suppose someone enters on a Non-Immigrant visa and after "x" days applies for AOS either through marriage, or any other family sponsorship.

If x < 30 = USCIS will accuse the applicant of committing fraud/misrepresentation and the burden of proof lies on the applicant
If 30 < x < 60 = USCIS may accuse the applicant of committing fraud/misrepresentation and the burden of proof lies with the applicant
If 60 < x < 90 = USCIS may accuse the applicant of committing fraud/misrepresentation but the burden of proof will lie with USCIS
If x > 90 = USCIS will most likely not accuse the applicant of committing fraud/misrepresentation

Credits to Triple Citizen

However, it is possible to Adjust Status under that visa, File I-130, I-485, I-765 for her along with the medical exam and the affidavit of support.

As far as your tax history... just submit a letter of employment and pay stubs for the last 3 months... and the IRS transcripts for the past 3 years.

[Wesman]

Thank You

Thanks for the insight, it does calm me a bit. Just a few follow up questions:

When you say IRS transcripts, what do you mean?

How do you think USCIS would take it for me to not have any long term employment/tax history?

And will the reasons, as I outlined in my original post matter to them at all, or is there a huge burden of proof on me (working against me) coming into the process?

Again, you've filled in some terrible blanks for me so far, and I am VERY thankful for that!

I can say for certain that I intend to hire an attorney for this one when we do finally get the paperwork started. I really want to make sure this is done right, but am worried about the income history not existing.

[Wesman]

Implications of an Expired Visa

PraetorianXI, I did not accurately express how much I appreciated your reply to this question.

I have one follow-up question that I couldn't find the answer to. We're looking at getting the AOS paperwork filed in the next week or so.

I have one additional question. What are the implications of an expired Visa? My wife's visa expires on the 28th of Feb. Does that present a problem?

Many abundant thanks...

Also, what is a reasonable rate that an attorney should be charging for the filing of this paperwork, and the preparing of documents, etc... along with accompanying us to the interview? I ask this because I really have no basis for knowing what a good or bad estimate is.


You are a blessing from God for the information you provide on this site.

Thank you very much!

Wes

[PraetorianXI]

You mean your wife's I-94 expires on Feb? right?

The expiration on her visa stamp does not matter, it is the expiration of her status (i-94 card). But either way, once you file for AOS for her, her status changes to "AOS pending" and she is allowed to stay legally in the USA until a decision is made in her case. All she needs to prove that is the receipt for the I-485. So do not worry about her status expiring.

it would be good to file the paperwork at least 2 weeks before her I-94 expires though.

As far as a lawyer goes... in most simple cases you do not need a lawyer... but they will charge from $1000-2000 to file the paperwork and an extra $500-1500 to attend to the interview... also, at the interview, they do not do anything, as they can not answer questions for you. If you still want to get a lawyer, try www.ailalawyer.com

[Wesman]

Sticky Situation

My most sincere thanks to you, again, you're truly a blessing on this forum.

Unfortunately, the I-94 is long since expired (May 2006). And Mexican residency (proof of immediate residence outside of US) expired in Jan-07. I still have dated rental leases and telephone accounts as proof we did live there for nearly 8 years.

From Feb-06 to Sep-07 I was looking for work and living on my deferred payment credit cards. In Sep-07 I landed a great engineering job at a Fortune 500 company, and we're now living in a great location in Georgia.

Now I'm making more than enough income to be nearly 300% above the poverty line, but we need to get this immigration issue sorted out. Obviously sham marriage would never even enter the picture because we:

• legally married 5 years ago
• ceremonially married 10 years ago
• have 2 children together (both are US CItizens)
• have changed her legal name on passport to married name
• have all bills and accounts owned jointly (where SSN isn't required)

In having read the law regarding this, it's my understanding that even out of status and overstays are not necessarily a barrier to AOS for spouses, as long as she was at least inspected and admitted legally at some point in time. (which she was)

But I don't know how that is interpreted where the rubber meets the road, at the USCIS interview during the AOS process.

Questions: (for easier quick answer)

1. How serious is an overstay of the magnitude mentioned above?
2. Do they make concessions or consideration depending on the situation?
3. RE: I-94, Are we up the proverbial creek without a paddle?

On a lighter note, I understand you aren't a lawyer, and thus your advice is just friend to friend conversation. But if you private mail me your address or paypal email, I would like to send you a small bit of scratch to say thanks. Knowledge, Wisdom, and Peace are rare commodities in this world, which I appreciate greatly.

Wes