Meaning of ‘most recent tax year’ in RFE for spouse petition


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Sorry I may have posted this before on the wrong thread so I will try again here.  My son is a US citizen and his spouse is applying for an adjustment of status.  She received an RFE which inexplicably states that "the petitioner/sponsor on Form I-864 affidavit of Support must submit a complete Federal income tax return submitted to the IRS for the most recent tax year."  Tax transcripts for 2017, 2016 and 2015 for the husband petitioner/sponsor were clearly included and 2017 tax transcript for the co-sponsor was clearly included!  The date of the RFE is December 31, 2018.    Obviously we don't yet have a tax return for 2018, as 1099s and W-2s have not yet been issued.  However given that we have now rolled over into a new year, and technically one could say that now the most recent tax year is now 2018, and not 2017, does that mean we have to give them 2018 tax returns but wait weeks before they are prepared?  This will delay processing time significantly.  However, I am afraid of an outright rejection if we interpret this clause "for the most recent tax year" just to mean 2017 and that is not what the USCIS actually means.  And the bite of course is that proper tax transcripts were actually included in the packet.  Any ideas or thoughts under the  9/11/2018 new RFE rules --if we submit only 2017 and the notice is meant to include 2018, would they get another RFE ,or is it too risky in what is becoming a close to zero tolerance environment.  Should they just wait to respond to the RFE until early February when the 2018 returns are completed and filed?  This is making everyone very fearful, as this should have been a fairly straightforward case.  They do have an attorney, but opinion on the meaning of "most recent tax year" in this particular context seems to be split among lawyers in the firm.  If it were in the middle of a year, it would be easier to divine what USCIS means, BUT IT IS DATED THE LAST DAY OF THE TAX YEAR.   It is better to be safe than sorry, always, but this possible time delay was not anticipated.  Thank you so much for any input you can give.         

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  • 4 weeks later...

Generally, when USCIS requests a tax return for the 'most recent' tax year if the RFE is due before or one is responding before the due date for a return and before one has filed the return, then the most recently one filed is submitted. So, an RFE issued on February 3, 2019 asking for the most recent tax return would generally be satisfied by a 2017 tax return unless one had filed the 2018 return. IF however, one has filed their 2018 return, in this example, then one would be required to provide the 2018 return. If someone has received such an RFE after the April 15 due date for tax filings but one has filed an extension, so the most recent return is still 2017, then one would generally provide the 2017 return and the extension for the 2018 return.

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