The DOS and IRS May Share Financial Information Regarding an I-864 Affidavit of Support
Clients at times inquire if their financial information supplied during a visa application process is available to the Internal Revenue Service (IRS). While the exchange of information is not automatic. It is authorized to verify information provided by the applicant or where fraud is suspected. Sponsors of immigrant visa applicants should be wary of "puffing up" their financial circumstances.
Privacy Act Protection Exception
In general, the Department of State (DOS) and IRS must adhere to the law as set forth in the Privacy Act of 1974, 5 U.S.C. 552a (Public Law 93-579), which protects US citizens (USC) and US lawful permanent residents (LPR) in the handling of information contained in individual records.
I-864 Affidavit of Support
One area where privacy act protection is weakened is for USC or LPR clients providing form I-864 Affidavit of Support. The DOS Foreign Affairs Manual (FAM) at 9 FAM 302.8-2(B)(13)(m). Verification of Information. make DOS-IRS sharing of financial information regarding the I-864 specifically available:
(1) The U.S. Government may pursue verification of any information provided on or with Form I-864, Form I-864-EZ, Form I-864-A (e.g., employment, income, and/or assets) with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration. If the Department finds that a sponsor, joint sponsor, or household member has concealed or misrepresented material facts concerning income, household size, or other material facts, we will conclude that the Affidavit of Support is not sufficient to establish that the sponsored immigrant is not likely to become a public charge.
(2) In this situation, the sponsor or joint sponsor may be liable for criminal prosecution under the general statutes relating to the submission of fraudulent immigration documents. Failure of the sponsor or joint sponsor to provide adequate evidence of income and/or assets will result in the denial of the application for adjustment to lawful permanent residence status.
This section does not refer to suspicion of fraud, or conclusions that a violation or potential violation of US tax law may have occurred as the proper bases for inquiries. The officer simply "may pursue verification" (and the sponsor or joint sponsor simply "may be liable for criminal prosecution").
Because of this provision financial information on the Affidavit of Support form I-864 is to be provided with the knowledge that the information can be exchanged with the IRS. It is possible that financial information supplied to the DOS will end up with the IRS. In addition to any IRS problem resulting from disclosures, there can be liability for criminal prosecution on information the IRS supplies the DOS.
Routine Use Exception
Additionally, there are exceptions to the application of the law, making it possible for governmental bodies to exchange information related to visa applicants and US citizens under certain circumstances. One of these exceptions is the "routine use exception". This release can occur both when fraud is suspected by a consular officer, and upon request by the IRS. 9 FAM 603.2-6(C) (a)(1) and (2) read as follows:
(1) ... in any case in which a consular officer comes into possession of information that leads the officer to conclude that a violation or potential violation of U.S. tax law may have occurred with respect to any person, the officer may refer the information to the IRS.
(2) Information concerning any individual may also be released to the IRS for internal use only at their request in a specific case when it is asserted that a violation or potential violation of U.S. law may have occurred. However, routine searches of consular files by IRS employees would be inappropriate in the absence of the approval of the Department (emphasis added).
Litwin & Smith have helped hundreds if not thousands of US Citizens and US Lawful Permanent Residents file family petitions for spouses and family members. Our law practice is limited to US immigration related filings. / Our firm is nationally recognized as a premiere immigration firm. We routinely provide immigration assistance to foreign nationals from all over the world. Should you need assistance. Just, let us know. Please call 650 588 7100 to schedule a time convenient to you.