The Immigration Law Link

Please find below another installment in our popular regular series of frequently asked questions about immigration law. Although most of these questions have come from real clients of Spar & Bernstein, we have also included questions from other resources for your benefit. Please note that the answers here are to be used for guideline purposes only, as the questions are specific to a particular case and may not necessarily be the best advice for YOUR situation.

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Question: My husband and I enjoy your honesty and positive attitude very much… Anyway… I am an American who spends four months per year here in Jamaica with my husband. We’ve been married for 4½ years. Here’s the problem: I am only in the US for a portion of the year and when I am there I am waitressing, I don’t earn enough to qualify as someone who can support my husband, according to the forms I’ve read from the immigration office. Do I have to get a family member, or can it be a friend, to sign an affidavit of support for us? Any advice would be much appreciated… Do they take into consideration the fact that I spend a large portion of my earnings traveling here to be with my husband? Thank you so very much.

Answer: Thanks for the compliments. You can have a friend sign an affidavit of support. It does not have to be a family member. And, no, they do not take into consideration that you spend a large part of your earnings flying to Jamaica.

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Question: If someone came to the US on a J1 visa with a residency requirement of two years and that person returns back to the home country and then would like to return to the US on an F1 visa to continue a master’s degree, can a visa be issued before the residency requirement is completed and does the new F1 visa if given, get rid of the J1 residency requirement?

Answer: The two-year home residency requirement does not prohibit issuance of F-1 visa. That can be tried any time, even before the HRR is completed. Ultimately, F-1 visas are discretionary. But there is no law that prohibits their issuance in these circumstances.

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Question: I am married and have two children. My wife does not work. I filed for my brother and his wife and two kids 12 years ago. They recently went to the US Embassy for an interview. They were turned down because the Embassy said I did not earn enough money for the affidavit of support. I earn a lot of money, but since I have my own business, I take a lot of deductions. I also own a lot of real estate in the United States. I sent copies of the title to my homes but they said it did not matter. My real-estate is valued over $500,000. There is a mortgage of approximately $100,000 left on the property. How can they turn my family down?

Answer: Under the immigration laws, the petitioner of any family member must be able to show that he or she can support their family whom the petitioner filed for as well as the petitioners own family at 125% above the poverty level. If the petitioner is in the military, than the petitioner only has to show he/she can support the family at 100% above the poverty level. You stated that you have four in your family including yourself and that you are filing for an additional four family members, totaling in all eight people whom you must support. Now we will assume that you are not in the military and therefore must meet the 125% threshold. Based on the 1994 poverty guidelines, you must earn above $39,463.00 after all of your deductions to support a family of eight. If your net income is below $39,463.00 than the Embassy had a right to turn down your family. You have two options: get an additional affidavit of support from another US Citizen or legal permanent resident who earns enough money to support your eight people and the family of second person who gives the affidavit of support or show assets to overcome a low net income. You chose to show assets. Under the immigration laws, you can add 20% of your net assets to your income to overcome the poverty guidelines. So for example, let’s say you earned $30,000.00 net income last year. Let’s also say you have assets after your mortgage is paid of $400,000.00. If you take 20% of $400,000.00, you are left with $80,000.00. The law allows you to add your net income of $30,000.00 together with the $80,000.0 (20% of your net assets) which is more than enough to cover the poverty guidelines. Your problem is that all you submitted to the Embassy was a deed. A deed does not tell the Embassy how much your property is worth. You needed the deed to show you earn the property, but you also needed to show a letter from your mortgage company stating how much is owed on the mortgage and either a certified appraisal of the value of the property or documentation from your local government stating the assessed value of the home. In essence, you need to show your equity in your home.