Naturalization before 5-year or 3-year anniversary date

[faysal]

I don't think this should be a problem becuase USCIS guidelines indicate that individuals may file thier naturalization applications as early as 90 days before the aniversary. So I think they should somehow reconcile the timing......

 

[CrossHairs]

I think they will reconcile. They will reconcile by postponing the approval or oath.

 

[Bobsmyth]

I will try to locate the naturalization law.

It's clearly stated in INA 316(a) and 8 USC 1427 (a) (1) :

No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant,
(1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application

 

[Bobsmyth]

USCIS is not stupid to allow people to apply if they know they cannot approve them if their cases were processed faster than 90 days.

The reason for allowing the 90 day grace period is that applications almost never get adjudicated within that time, so it allows the applicant to accumulate the residency requirement during this time. USCIS doesn't determine if you have met this requirement until interview time, so yes USCIS, would allow you to apply even if they happened to adjudicate within 90 days. This doesn't mean they will approve your case, it just mean they will allow you to apply and then deny your application.

Whoever wrote this rule would have said "At no time, no one can be naturalized before his 5-year anniversary date". I did not read that anyhere.

I guess you didn't read INA 316 (a) or 8 USC 1427 (a)(1) which makes it very clear that you can't be naturalize if you haven't met 5 year residency requirement.

Don't stress yourself, man. People are just scaring the sh*t of you. Relax and enjoy your interview. It will be fine.

This is a very unique case as the interview is within the 90 day grace period and the applicant will be potentially denied. How could you say that things will be fine if the applicant stands to be denied for not meeting the residency requirement?

Let me ask you guys a question for those of you who applied 90 days before you 5 or 3 year anniversary. Did you check YES or NO for the question asking if you met the residency requirement ?
If fbanna79 would have to be denied, it will imply that all of us who applied before 5/3 years and checked yes for residency requirements should be denied or deported for lying.

The other applicants who applied 90 days before their anniversary had their interview after the residency requirement was met. Your comparison in this case is not valid.

fbanna79, your 5 year residence time has started 90 days before June 28. That is USCIS rule, and lets go by the rules.

Again, the rule states you can't be naturalized before meeting residency requirement before applying.

 

[Bobsmyth]

I think they will reconcile. They will reconcile by postponing the approval or oath.

The interview is before the residency requirement is met. I doubt they would reconcile the time.

 

[Bobsmyth]

I don't think this should be a problem becuase USCIS guidelines indicate that individuals may file thier naturalization applications as early as 90 days before the aniversary. So I think they should somehow reconcile the timing......

They only reconcile the timing if your interview is after the residency requirement date, not before as is in this case.

 

[Bobsmyth]

Isn't the 5-year requirement applicable only to the endpoint of the process, with the start and interim being subject to the lesser requirement of "5 years minus 90 days"?

No, the 5 year residency requirement is before the applicant sends in the application and is determined at the initial interview.

See INA 316(a) and 8 USC 1427 (a) (1) for the rules residency requirement.

 

[Jackolantern]

No, the 5 year residency requirement is before the applicant sends in the application and is determined at the initial interview.

See INA 316(a) and 8 USC 1427 (a) (1) for the rules residency requirement.

Requirements of naturalization

(a) Residence
No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

A literal interpretation of that would seem to invalidate the "5 years minus 90 days" allowance, thus preventing everything from filing, fingerprinting, and interviewing before the full 5 years. But that is not the case, as thousands of people officially and successfully file and get fingerprinted before the 5 year mark.

So the question is what is really allowed before the 5 year mark and what isn't. The only thing that is 100% banned before the 5 year mark is the oath. Obviously, some things like filing and fingerprinting are allowed. Now we have an interview before the 5 years. Whatever else is allowed to happen before the 5 year point, including the act of making the decision, is open to interpretation.

 

[Bobsmyth]

But that is not the case, as thousands of people officially and successfully file and get fingerprinted before the 5 year mark.

Fingerprinting and residency requirement are not related matters. Again, the determination of the residency requirement is only made at the initial interview not sooner. Since in the majority of cases interviews are held after the 90 day early filing grace period, the residency requirement isn't an issue ( USCIS adjudication policy has been to allow the 90 days to count if the residency requirement was met at the initial interview).
USCIS doesn't send out FP notices on the basis if you have or haven't met residency requirement. FPs are just another step of the process.

 

[Jackolantern]

Fingerprinting and residency requirement are not related matters.

Fingerprinting is just another intermediate step, like the interview or the act of making the decision. And the decision itself is not complete until oath day.

The law says "filing" is not allowed until 5 years. But people are allowed to file 90 days before 5 years. So throw the literal interpretation out the window. USCIS will do what they want before the 5 years, except the oath itself.

 

[warlord]

My interview was a week and a half early before my 3 years was up (by marriage). I passed but the IO said I officially couldn't take my oath until after my actual anniversery. So I just waited a few weeks then got my oath then citizenship a month later.

It's pretty standard for interviews to happen before the actual anniversery date. Happens quite a bit...

 

[Jackolantern]

My interview was a week and a half early before my 3 years was up (by marriage). I passed but the IO said I officially couldn't take my oath until after my actual anniversery. So I just waited a few weeks then got my oath then citizenship a month later.

Was the oath letter sent to you before the 3 year point?

 

[Bobsmyth]

My interview was a week and a half early before my 3 years was up (by marriage). I passed but the IO said I officially couldn't take my oath until after my actual anniversery. So I just waited a few weeks then got my oath then citizenship a month later.

It's pretty standard for interviews to happen before the actual anniversery date. Happens quite a bit...

So your interview was Jan 8/07 , LPR anniversary is ~Jan 17/04 and oath was in Feb 22/07 ?. It will be interesting to see if the OPs case will be adjudicated the same way since OPs case is based on 5 year residency, not marriage. I would argue that USCIS allows more leeway with marriage based applications since it's established at the interview if your marriage is valid or not. In essence, the emphasis is placed on the validity of the marriage at the interview rather than meeting the 3 year requirement exactly. Once this validity is established, it's assumed you will remain married up until the oath (hence question 1 on N-445 oath letter).
With 5 year residency based applications, it would seem that the onus is up to the applicant to show that they have met 5 year requirement at initial interview.
Again, we'll have to wait and see how the IO in this case adjudicates the application. Seems that it could go either way.

Warload, just to confirm ; from your timeline you came in on TN in 2003, married USC in July 2003, obtained LPR ~Jan 17/04 , applied for citizenship Oct 06, and became USC Feb 07, correct?

 

[lazycis]

It's clearly stated in INA 316(a) and 8 USC 1427 (a) (1) :

No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant,
(1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application

The INS interpreted the residency requirement this way in 8 CFR 334.2

(b) An application for naturalization may be filed up to 90 days prior to the completion of the required period of residence, which may include the three-month period of residence required to establish jurisdiction under section 316(a) or 319(a) of the Act.

An agency has the authority to inerpret the laws in order to implement them in practice. Will this interpretation withstand a challenge in federal court? I do not know. To me it seems that they cannot interpret it in such a way if the law plainly says it should be 5 years before filing an application. But we all benefit from it...
As for the OP's "problem", I think the USCIS will not adjudicate (approve) application before 5 year period is over.

 

[Bobsmyth]

The law says "filing" is not allowed until 5 years. But people are allowed to file 90 days before 5 years. So throw the literal interpretation out the window. USCIS will do what they want before the 5 years, except the oath itself.

Since USCIS has established the 90 day grace period, they take that period into consideration at the interview per 8 CFR 334.2

 

[fbanna79]

I called USCIS this morning and spoke to an IO (Not customer service). I expressed my concern and she said that there is nothing to worry about. As long as the application is filled no more than 90 days before the meeting 5-year anniversary, i should be fine. If I pass the tests, my case will be approved. However, they may delay the oath until after June 28, 2008, and this is up to the IO in Durham. Even if oath was done before June 28, there will be no problem. She said it is a situation that happens very often, especially in new District Offices and places where cases happen to be adjudicated very quickly.

I will call an immigration lawyer this afternoon to confirm what the IO said.

Thanks all.

 

[Bobsmyth]

I called USCIS this morning and spoke to an IO (Not customer service). I expressed my concern and she said that there is nothing to worry about. As long as the application is filled no more than 90 days before the meeting 5-year anniversary, i should be fine. If I pass the tests, my case will be approved. However, they may delay the oath until after June 28, 2008, and this is up to the IO in Durham. Even if oath was done before June 28, there will be no problem. She said it is a situation that happens very often, especially in new District Offices and places where cases happen to be adjudicated very quickly.

I will call an immigration lawyer this afternoon to confirm what the IO said.

Thanks all.

That's great news fbanna. I really hope the IO interprets it the same way when it comes down to your interview. What a thing to have to stress about 1 day before your interview.
I doubt anyone (not even lawyer) can say for sure what the IO at interview will do since even seasoned poster JohnnyCash has seen cases like this denied in past.

 

[fbanna79]

That's great news fbanna. I really hope the IO interprets it the same way when it comes down to your interview. What a thing to have to stress about 1 day before your interview.

Man.... I did not sleep last night, and i am at work reading immigration website instead of doing my work. However, i am confident.

 

[Bobsmyth]

Man.... I did not sleep last night, and i am at work reading immigration website instead of doing my work. However, i am confident.

Not to beat a dead horse, but how did you approach your issue with the IO you talked to today?

Did you only ask IO specifically if your oath can be scheduled before residency requirement is met, or did you also ask what happens if you don't meet residency requirement at interview?

The way in which you ask the question and how IO interprets question will determine their answer.

 

[Triple Citizen]

My interview was held 3 days before my 3rd GC anniversary. The officer was aware of it and it was not an issue.

This is a very unique situation/case because no one so far is being able to get their interview so quickly which clearly makes them not to meet one of the prime eligibilities for the naturalization.