advice please - denied naturalization application

N

nailiam

Registered Users (C)
Hi,

I have applied for US citizenship based on marriage to the US citizen and have been denied and would appreciate some guidance.

I was out of the US for greater than one year and broke my "continuous residence" but returned in July 2008. (Note I have been married since 2002 so I have adequate time of marriage, just need the time in the US.) US CIS stated that I could only file 2 years and 1 day from the date of entry, July 2008, or in July 2010. I was aware that I broke the continuous residence and filed in May 2010 taking benefit of filing 3 months early (as described in the The guide to Natiralization) or specifically allowed under Title 8 Section 334.

US CIS makes no mention of the three month early filing privilege, instead says I could only file after 2 years and 1 day.

Does anyone know or is aware if the 3 month early filing is "lost" if continuous residence is broken?
 
It is 4 Years and one day. Why do you want to apply on 3 years basis anyway, is it because you recieved your GC recently? But you have stated you were married in 2002.
There is no 90 days early filing for 4 year 1 day rule.
 
if you married to US citizen you can apply based on 3 years residency status. Also based on Sec 334 (8 U.S.C. 1445) states that: "the application for naturalization may be filed up to 3 months before the date the applicant would first otherwise meet such continuous residence requirement".
 
nailiam said:
if you married to US citizen you can apply based on 3 years residency status. Also based on Sec 334 (8 U.S.C. 1445) states that: "the application for naturalization may be filed up to 3 months before the date the applicant would first otherwise meet such continuous residence requirement".
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All of that is true but if you have a GC older than 5 years minus 90 days, you still check the box of 5 years residency even if you got your GC by virtue of a marriage to a USC.
 
I am not disagreeing with you it is just that I have not seen that anywhere and it does not seem logical (I guess there is no requirement for logic when dealing with governments...). Can you point me to the relevant legal code or examples/discussions?

Thanks
 
namecheckvictim said:
It is 4 Years and one day.
Click to expand...
It's 2 years and 1 day for the 3-year marriage option.

Why do you want to apply on 3 years basis anyway, is it because you recieved your GC recently? But you have stated you were married in 2002.
Click to expand...
Applying with the 3 year option is to be eligible to wait only 2 years and 1 day instead of 4 years and 1 day.

There is no 90 days early filing for 4 year 1 day rule.
Click to expand...

Neither for the 2 year 1 day rule.
 
nailiam said:
I was aware that I broke the continuous residence and filed in May 2010 taking benefit of filing 3 months early (as described in the The guide to Natiralization) or specifically allowed under Title 8 Section 334.
Click to expand...

That is where your mistake lies; the 90-day headstart does not apply to the 2 year + 1 day rule (neither 4 year + 1 day).
 
Thanks for the reply Jackolantern. Have you seen this in practice or is there a way to tell that 334 is not available? The lawyer we consulted initially with had told us we could use it (so we did). From reading the statute it says if you are filing under 319 (i.e., marriage to a US citizen) then you can use it. Thanks very much!!

The problem we have is there are several other issues in my application which they either considered and felt ok or did not consider at all. So we need to either 1) appeal and pay $605 2) try to speak to a congressman 3) simply reapply and hope that this is the only issue. Given the lawyer had mentioned we could do this we were hoping they made a mistake thus I am asking if you are certain the 90 day headstart does not apply.
 
i would just reapply. I think the lawyer was wrong on this one. The 90 days applies if you are applying based on 3 or 5 year residence, not the case when you broke continuous residence. In fact the rule is worded slightly different, it is not 2 years and 1 day. It is that they will count 1 year minus 1 day of your stay abroad before returning to the US. Here is the wording from the guide to naturalization:

If you return within 2 years, some of your
time out of the country does count. In
fact, the last 364 days of your time out of
the country (1 year minus 1 day) counts
toward meeting your continuous residence
requirement.
 
However, I admit it is confusing and not completely clear. It could be read your way or your lawyer's way and apply anyway, you count 364 days before you returned, plus another 2 years plus one day and then count the 90 days backwards. It could be interpreted that way, but on this board I have always seen people referring to having to wait the full 2 years and 1 day, or 4 years and 1 day and not apply the 90 day rule.
 
nailiam said:
... we were hoping they made a mistake thus I am asking if you are certain the 90 day headstart does not apply.
Click to expand...

There is no mistake. Your best bet will be to reapply. The other issues with your app, you can discuss here, or talk to a lawyer other than the present lawyer. As you yourself pointed out, rejection based on reason A does not imply they forgive reasons B, C and D. It is just that reason A made the application a non-starter.
 
INA 334(a) specifically applies to the continuous residence requirements of INA sections 316(a) and 319(a).

Because of your disruption of residence, you are using the regulatory remedy and applying under the residence requirement of 8 CFR 316.5(c)(1)(ii) for which there is no early filing in addition to that which is already provided, specifically 364 days before re-accumulating a full 5 or 3 years required under the statute.

Discuss that with your lawyer when you ask for a refund. ;)
 
namecheckvictim said:
All of that is true but if you have a GC older than 5 years minus 90 days, you still check the box of 5 years residency even if you got your GC by virtue of a marriage to a USC.
Click to expand...

If one meets the criteria for both the 3 year option and 5 year option, either can be chosen regardless of whether the GC was obtained via marriage or otherwise.
 
BigJoe5 - from reading 316.5(c)(1)(ii) it refers to disrupting my continuous residence if I am out between 6 and 12 months for continuous periods (i.e., periods not 1 period). I was only out one period, do you think this is a winning argument?

Also, they made a big mistake and I did not catch it at first as I was too emotional...but to further complicate matters, the letter I received states (and I mistakenly copied in my original post to which you all replied) the reason for denial is that my "trip outside the US from August 31, 2007 to July 16, 2008 ...consisted of more than one year which disrupted the continuity of residence....and you were required to wait a period of two years and one day from the date you last re-entered the US to resume your permanent residence status". I was out for less than one year. I am not sure my continuous residence was disrupted?? They go on to say that I filed before my permanent residence status was resumed - as I understand it I never lost my permanent residence status since I was not out of the US for more than one year.

So in summary, I have been married to a US citizen for more than 3 years. I established my permanent residence on May 15, 2005 (i.e., more than 3 years) and I do not believe I lost it. I have been physically present in the US for more than 18 months. I may have lost my continuous residence once, but the code speaks of multiple periods whereas I was out only once for less than a year. I did file 3 months early as I felt I was filing under 319 a.

Is it worth trying to fight with them since they have incorrect statements in the denial?
 
I think it will help if you
a) provide detailed entry / exit dates
b) provide exact verbiage of denial letter

I do not think there is a difference between period / periods. Also, for a trip almost 1 year, the officers give you a chance to provide that you maintained residence. We have no information on what they asked, and what you provided. It is discretionary based on the totality of evidence, but you need to satisfy their requests for documentation. The thing to check here will be whether you maintained a residence in US (or some sort of relationship beyond bank accounts) while you were abroad. If you did not, the officers are within their rights to deny the application.
 
It is not a clear cut situation...We were married in late 2001, our child was born in the US in late 2002. I got the green card in May 2005. My husband was working overseas during this period. I did not get the GC after we were married as the intention was to stay overseas. Then in late 2004 we decided to return to the US and I went about getting the GC. After I got the GC my husband notified the company that he was leaving. They convinced him to stay longer - combination of money, pressure, loyalty, promises of better position in the US, etc. This went on and on and we fought about it a lot. He held a high position and got a lot of money to stay. It seems hard to believe we ended up staying as long as we did but we finally only got home in 7/08. The intention was always to come home and we actively looked for homes, etc. I spoke about this to the IO during my interview and she did not comment.

The dates are such that we were mainly overseas from the date of getting the GC until we entered in 7/08 but I was always home every 6 months. My planned trip in Xmas 07 got cancelled thus I was out for 11 months. If the IO stated this reason I could at least understand it but as it stands their reason for denial is factually incorrect as it states that I was out for more than one year when I was not. They state that as a result of this specific trip I lost my permanent residence status. I think that is incorrect.

Here is the verbiage:

The record establishes that you became a lawful PR on 5/15/0. On 5/20/10 you filed your Application for Nat, Form N400/ On your submitted application, you indicated that you were o/s the US from 8/31/07 to 7/16/08. This trip consisted of a period of more than one year which disrupted the continuity of your residence. You were required to wait a period of two years and one day from the date you last re-entered the US to resume your PR status. You last entered the US after being absent for more than one year on 7/16/08; therefore two years and one day from this date would have been 7/17/10. You prematurely filed your App for Nat on 5/20/10, before your PR status was resumed; therefore your application must be and is hereby denied.

They cite sections of Title 8 before this verbiage. One of their 3 cites is to 316.5 discussing being out for more than one year - which is not applicable...

Thanks for your time and comments.
 
Subsection (i) talks about a trip over 6 months but under one year and (ii) refers to a break of one year or more, (ii) also provides the only remedy available for either break. That point was settled affirmatively by INS Counsel in 1993 and has withstood judicial review.

The break in (i) creates a "rebuttable presumption", the question remains can you overcome the presumption?

If not, it looks like you can re-apply now. Filing an N-336 hinges on your ability to overcome the presumption. Can you?

You have 30 days to file an N-336, then USCIS has to give you a second hearing before 180 days have passed since filing the N-336. That means it could take up to seven month to get an answer.

It could be faster to file new N-400. I don't know what USCIS office you are dealing with but I've seen some folks flying through the N-400 processing in as little as 3.5 months.

How long did it take the first time? Is the $70 difference in fees worth the wait to you?

Ultimately, only you can decide.

Also, I wasn't kidding about your lawyer, (s)he made a rookie mistake on that. Let 'em get away with it and that's a lesson lost.
 
as regards the fees, clearly not worth $70 but it does bother me that they have the facts wrong in their letter. I expect more and deserve a correct rationale I think.

the other issue is when can I file? A strict interpretation is that I did not come to the US until 7/08 (as we were mainly overseas til then). should I wait until 7/11 less 90 days or 4/11 to refile? their letter states 7/10 (i.e., 2 years and a day from when I entered)

thanks again
 
not sure if I was clear on the dates but the point I was trying to make is that I got the GC on 5/15/05 but we lived overseas until 7/08 - our intention was to come home much earlier but things kept happening. so can they say the clock only started ticking in 7/08 or do i get the 364 day lookback since I was never gone for greater than 1 year
 
Whichever way you look, it does not look good. There have been denials when the applicant failed to establish a residence in US ... came to US for a few weeks after getting GC, and then left for a year or so ... the IO rejected saying residency did not start until the first long stay in US.

You can fight over trivia, but you have to look at your chances. Even if you win one battle, they can reject you over the second point. I am not sure they will grant you the one year less one day exemption also. The safest for you will be 90 days before July 2011, but if you want to take a shot by re-applying now, you can try and see if they skip over your previous trips.
 
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