I-864 Question: Should Spouses file “Married, Filing Separate” or “Married, Filing Jointly”


This question of whether to file separately or jointly is extremely common with regard to the I-864 Affidavit of Support. The Answer actually differs depending on the situation. The common situations are as follows:

Scenario 1: Spouse is Illegal

The unauthorized and illegal income from an illegal spouse is NOT RECOGNIZED by US Immigration Agencies. It is like someone robbed a bank (crime) and then tried to put that illegal income onto the 1040 Tax Form.

What if the Spouses DID FILE JOINTLY? The tax forms would CONFUSE AND COMPLICATE an immigration filing. The US Immigration Agency (USCIS, NVC, or DOS Embassy/Consulate) would be required to verify any form of income displayed on the IRS 1040 Tax Return Filing. If there are forms of income that cannot be verified, expect issues and delays. If income is deemed illegal, the legal income would have to be proven generally by 3 years of tax returns, W2/1099, and 12 months of paychecks.

Scenario 2: Spouse is legal, could be the intended immigrant or an I-864 household member

In this scenario, the tax returns and the immigration filing are benefitted by spouses filing “married, filing jointly.” This is because there would be less chance of an “overlap/increase” of income and the AGI on the one 1040 Tax Filing. One AGI would clearly communicate the taxable income for I-864 purposes. If married, it is generally recommended to file “married, filing jointly.”




Disclaimer: This Blog is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.