I'm a dependant, full-time student abroad and haven't filed with the IRS for the past three years. Doing immigration stuff and need tax returns. What now?

May 13, 2009 10:34 AM

I am helping my partner migrate to the U.S. after our marriage. We're nearing the point where we do an Affidavit of Support during our embassy interview abroad, which says I need to bring tax returns. I have not filed income taxes for the last three years, because I have been a full-time student in this country. What should I do?

I've been living abroad for the past three years, and now my partner and I are moving / moving back to the U.S. Part of the marriage immigration process deals with an Affidavit of Support. Even though my partner makes a substantial amount annually, and we're filing as if my partner can support can survive on that, we know they will probably still need a co-sponsor. To join the one we file, we're going to get a co-sponsor in the form of one of my partner's relatives in the States. The Affidavit of Support we're submitting together, though, needs tax returns from my filing, and I've not filed for the last three years, because I've been a full-time student, making no money at the taxable rate as a single person. (My partner and I only married this year.)

I'm not sure what I should do. I want the visa process to go smoothly, in which case having the tax returns would probably be preferable, but I'm not sure how to even go about filing in my situation. This is a big reason I've not filed, really. The IRS expects me to have a U.S. address, and I don't. For reasons I won't go into, I also haven't had a very stable, close familial place to send information to, either, so that wasn't an option. When I go to the IRS website, there is the option to contact a local office internationally (in London, Frankfurt and Paris) for help, but none of them is where I am abroad.

Some extra caveats:

- My father is a disabled U.S. veteran, and I've been receiving non-taxable VA educational benefits for the last three years. He has mostly helped pay any leftover costs of my tuition and living. When he's not been reliable, my partner has helped me. I've been a dependent, because of my studies. I have a lot of anxiety issues and can't really work and study at the same time, so that's why. :/

- My parents divorced a little over a year ago, and my mother sent me $10,000 from her settlement with my father. (She was concerned that my father might pull the rug out from under me and not help me pay for things while abroad.) Is this generous gift taxable, or is it part of my being essentially a dependent? I don't know how my parents file me (if they call me a dependent), if they file me, because they don't talk to me much.

- My partner and I have begun pooling our money together--my little bit and my partner's regular income--in preparation of our immigration interview (date yet to be set) and our move. I feel this may complicate things, even with my bank statements. Am I right?

So yes...what should I do? Do I file (and how, if so?) and try to get the returns ASAP, before our interview? Do I not file and just take bank statements and a letter explaining my situation? I can point to p. 8 in the 1040 Tax Instructions Book that shows I don't need to pay, I think, since I've not actually earned over $8900USD in any of the three years, but I'm still not sure if this is good enough.

- I will start working as soon as I am through with my studies next month. I have this lined up. The money I make will go into my and my partner's joint account. How might this affect stuff?

I'm just wanting to do what will help us the most, and harm us the least, for the visa process. Any advice would be welcome.

posted by anonymous to Work & Money (9 answers total)

The $10,000 is well under the annual gift limit of $12,000 so that wasn't taxable income.

It's easy to download the 2006, 2007, and 2008 tax year forms and file them.

Just state your income if any and include the Form 2555 giving you the foreign earned income tax exclusion.

Tax returns are what you send the government. Once you mail it, you can bring the returns to your interview. The IRS doesn't revisit returns for a year or three anyway so it's all the same to the USG.
posted by toroi at 10:39 AM on May 13, 2009

My husband came to US on a K-1 visa (meaning we married in the USA, not abroad) so our situation was a little bit different. We also had a co-sponsor, though my parents were willing to do that. I think 90% of the time people can get through the immigration system paperwork just fine, but your situation sounds a bit more complicated than ours was. It is probably worth heading over to www.visajourney.com to speak to some people who have been through your particular process. If that doesn't solve all of your questions, you might consider getting an immigration lawyer just to look over your packet. In my opinion, it's usually not worth paying one to do this process for you, and I think it's better to be in control of how and when your paperwork is filed. Also, I remember that there was a phone number to call the IRS and ask them to send out statements of your tax returns to you for free. I know you didn't file, but it's possible that they will send you an official document to this effect. That, plus you bank account records, a letter, and a co-sponsor may be sufficient. Good luck!
posted by theantikitty at 10:41 AM on May 13, 2009

Seconding contacting an immigration lawyer ASAP: I used to work in an immigration law office (not qualified to give advice, just as an assistant), and one common way in which U.S. citizen/foreigner couples really screwed up their situation and thus ended up needing an attorney's services was by getting married abroad and not in the U.S. The affidavit of support might not be your only problem.
posted by halogen at 11:02 AM on May 13, 2009

You don't need a US address to file. I use my address overseas. So that's not an issue.

Just because you don't have to file doesn't mean you can't file. If you want your ducks in a row, go ahead and file (go to turbotax.com or similar) and then you'll have this done before your interview.
posted by bluedaisy at 11:04 AM on May 13, 2009

Thirding the call for an immigration lawyer ASAP. I was also an assistant to an immigration lawyer and halogen is dead right about the possibility of the situation getting screwed up.
posted by immlass at 12:15 PM on May 13, 2009

You need documented income above poverty line - around $20,000 per year - or about $100,000 of investments. To be approved, you'll need one or more cosponsors who have the documented income. You don't necessarily need an immigration lawyer, but you definitely need an immigration expert. I have one I recommend PM me if you want to have contact info.
posted by peter_meta_kbd at 4:57 PM on May 13, 2009

follow up from the OP

I think there's a lot of confusion here. Maybe it's the way I explained it.

Just for the future, when people needing info land on this: You most certainly can get married abroad and then file, without hiccups. In fact, no offense to you assistants, it, particularly the IR1, is one of the fastest ways for people of some countries to go. You can do it multiple ways, even. You can do this via a K-3 Marriage Visa or via a CR1/IR1 Relative Spousal Visa, which is what we're doing. I'm not sure why this post went off into that tangent, when it's about filing tax in regard to something specific with the immigration process, but it should be cleared up for future MeFi searchers.

Secondly, I already stated that we're getting a co-sponsor, but my partner's income (which, with our marriage, we are sharing), is well above the poverty line. Even with a bit of an unfavorable exchange rate, it will be around $50-60,000, nearly double what we need, when we convert it. I have read on VisaJourney that if you share your income via a joint account, you can actually use your foreign spouse's income. This is why we're submitting one Affidavit of Support that involves our account and taking another from my partner's relative in the U.S., just to cover all bases.

Next, I don't know how Americans living abroad are using TurboTax to e-file. It most certainly doesn't accept my foreign telephone number, recognize my foreign province (only the country), or allow me the number of digits that my post code is. Also, it thinks I would have a U.S. credit card, and so expects me to submit a U.S. address for that card, which some of you may very well have. I don't. I can't file via TurboTax. H&R Block's TaxCut is a bit better about recognizing foreign addresses and the like, but even it just directs me to print and send my document and isn't nearly as concise or at the same time explanatory as the actual IRS forms that I've looked at. In terms of those, which form would I use? Would I use the typical 1040 for individual income, or would I use something else? Keep in mind that, at my age, I've only ever filed once before I left the U.S., and most of it was handled by my father's accountant. I don't know much of anything about taxation, on the whole.

I think it should be cleared up that I'm not very worried about the interview, on the whole. For one, we will have a valid co-sponsor. Also, I think I have a valid excuse for not filing, according to the tax instruction book, and I can just attach that to the Affidavit of Support, if needed. I haven't read of my case, in particular, but it is VERY common for people not to file when abroad due to issues or not knowing they needed to; there are even some former MeFi questions concerning this. This will not be an unfamiliar situation to immigration. My question was not ever will this stop my partner from being allowed entry, because I'm 99% sure it won't. My question was whether it would go more smoothly for us, as in what would delay us least or not at all, if I retroactively filed now (and if so, how to go about it) or if I just explained my situation. I still am not sure about this.

Thanks for clearing up the issue about the $10,000, toroi. That was one I was concerned about.

posted by jessamyn at 8:14 PM on May 13, 2009

Page 8 (Section 6, Question 25, Paragraph 6) of the I-864 Affidavit of Support [pdf] explains what to do if you haven't filed federal income taxes. I've highlighted the part that applies to you.

"If you were required to file a Federal income tax return during
any of the previous three tax years but did not do so, you must
file any and all late returns with IRS and attach an IRS-
generated tax return transcript documenting your late filing
before submitting the I-864 Affidavit of Support. If you were
not required to file a Federal income tax return under U.S. tax
law because your income was too low, attach a written
explanation. If you were not required to file a Federal income
tax return under U.S. tax law for any other reason, attach a
written explanation including evidence of the exemption and
how you are subject to it. Residence outside of the United
States does not exempt U.S. citizens or lawful permanent
residents from filing a U.S. Federal income tax return. See
"Filing Requirements" in the IRS Form 1040 Filing
Instructions to determine whether you were required to file."
posted by whitewall at 5:46 AM on May 14, 2009

Re using Turbo Tax: it accepted my foreign info just fine (I can't recall how), but I do have a US-based credit card and billing address. But I filed using my overseas address.

You can't efile from overseas, so you have to print and mail forms.
posted by bluedaisy at 12:28 PM on May 14, 2009