advice please - denied naturalization application

[BigJoe5]

If your Denial calculated your eligibility date for you, the point is settled in the eyes of USCIS, and that date has passed. When did you get that Denial? How much time have you wasted so far?

 

[nailiam]

we got the Denial yesterday so have not wasted much. I really appreciate your time/effort/answers. We are not going to appeal as it makes no sense. We will meet with the CIS to discuss, if they will and today my husband is contacting a congressman for assistance.

We are not hopeful or really trying to get a favorable response; however, we want a denial that is at least factually correct. This might slow the process but it is not that big of a deal as it is only a few months. If no one complains about this it will never get any better...

 

[Jackolantern]

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

Although the letter says 7/10, I wouldn't pay attention to that, because the letter is in error to begin with when they stated that Aug 2007 to July 2008 is over a year.

Even if you apply now based on the 2y+1d rule, you may still be required to prove ties to the US during that long trip, which again leaves things subject to discretion and interpretation.

If you apply in April 2011 (3 years minus 90 days after your July 2008 return date), that trip will be too far in the past to affect your eligibility.

 

[Bobsmyth]

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

So you received GC in 5/15/05, immediately left to live overseas with your husband until 7/08, but returned to the US just shy of every 6 months during that time (except for 11 months when your Xmas trip in 07 to US was cancelled)?

 

[nailiam]

yes. as I mentioned we kept planning on coming home but things kept changing and we stayed longer and longer...we tried to proactively meet with the IO to highlight the time out, etc and see what it meant but they said they could not answer anything on it and we should file when we felt all was correct. we met with a lawyer who advised to do it in May 2010.

once again if there are problems with the dates that is unfortunate but ok, just state what the correct reason is so we will have some clarification.

as it stands there are factual errors and two typos in the one paragraph they wrote.

 

[Bobsmyth]

yes. as I mentioned we kept planning on coming home but things kept changing and we stayed longer and longer...we tried to proactively meet with the IO to highlight the time out, etc and see what it meant but they said they could not answer anything on it and we should file when we felt all was correct. we met with a lawyer who advised to do it in May 2010.

once again if there are problems with the dates that is unfortunate but ok, just state what the correct reason is so we will have some clarification.

as it stands there are factual errors and two typos in the one paragraph they wrote.

For what it's worth, I'll take a shot at your denial and USCIS' interpretation of the decision. Before I begin, erase any notion that you applied under 2 year 1 day rule in conjunction with 90 day rule. The way USCIS sees it is that you flat out applied under 3 year rule.

First, there's the issue of continuous residence. From the time you obtained your GC, up until 7/08 , you never established continuous residence in the US to begin with (in effect, continuous residence was "broken" from the time you obtained GC). Returning to the US for a few days every 6 months is not sufficient to establish continuous residence. Since your statutory period includes a time for which continuous residence was never established (7/7-7/8), USCIS denied you for not meeting continuous residence requirement. Why they mentioned 8/07-7/08 as a period that equals beyond 1 year is beyond me, but they are correct is saying that continuous residence was broken (since it was never established in the first place).

Secondly, by leaving the US immediately after receiving GC and only returning every 6 months until 7/08 shows that you did not intend to maintain permanent residency. Generally, USCIS frowns upon applicants who have never shown an intent (ex. living for at least a few months in US after obtaining GC) to maintain permanent residency before and at the beginning of the statutory period. The fact that you left the US immediately after you obtained your GC and only returned in 7/08 demonstrates to USCIS that there was no intent to maintain permanent residency to begin with. Note, this is different from loosing permanent residency status automatically by a continuous trip of over 1 year. Since you applied in 5/10 (by claiming 90 day rule) , the statutory period goes back to 7/07 (3 year rule).This statutory period includes a time (7/07-7/08) for which you were still living overseas, and hence USCIS determined you never intended to maintain permanent residency before and at the beginning of statutory period and used their discretionary powers to deny you on this determination. The denial uses the wording "before your PR status was resumed ". However, permanent residency status can't be put on hold or resumed. You either have it or not. Perhaps they are referring to the fact that you left the US right after obtaining GC and thus it appeared you never intended to maintain permanent residency to begin with.

IMO, since you permanently returned to US in 7/8, you can apply 2 years + 1 day from that time (as USICS mentions) since you have both established continuous residency and have demonstrated an intend to keep you permanent residency status by living in the US. The statute says that you are only credited up to 364 for any time outside the US over 1 year, but perhaps the way USCIS has interpreted that is that your continuous residence was already broken prior to the statutory period and you were out of the US the majority of the time between 7/07-7/08, therefore you're allowed to the 364 days of credit and are eligible to apply now. If you decide to apply now, make sure you use the correct statute in your application. In other words, do not just select the 3 year rule option. Select "other" and mention the specific statute (8 CFR 316.5(c)(1)(ii) ) that related to 2 year + 1 day rule along with a copy of your denial letter indicating when you can apply. That way you lessen your chances of the IO scrutinizing your time outside the country and your intent in maintaining permanent residency between 10/7-7/08. There's no guarantees that you'll be approved, but you'll increase your chances for approval by building your case with the appropriate foundation.

 

[nailiam]

BobSmyth - thanks very much for the time it took you to apply. While your answer results in a denial it is logical and I can understand it.

At this stage, we have requested our congressman to intervene to get them to fix their letter. If it is a denial, so be it, but we feel it is better if it is not obviously false so that we can use it on the next filing.

It is a shame that CIS does not have someone that can respond and give comments. As I mentioned, I knew my case was not clear and went to them with specific questions to which they said they could not answer. I should interpret it and file and see what happens.

 

[Bobsmyth]

BobSmyth - thanks very much for the time it took you to apply. While your answer results in a denial it is logical and I can understand it.

At this stage, we have requested our congressman to intervene to get them to fix their letter. If it is a denial, so be it, but we feel it is better if it is not obviously false so that we can use it on the next filing.

The denial will likely stand since you didn't have continuous residence during 7/7-7/8. USCIS should have worded the letter to fit the appropriate circumstance instead of filling it with mistakes. As to whether the mention in the letter of being able to apply now is incorrect or not, keep in mind that it only constitutes an opinion from USCIS' side rather than an enforceable action. In other words, you can't use what USCIS tells you in a correspondence letter (whether it be correct or not) to enforce whether you are actually eligible to apply for naturalization or not, . You have no recourse if they give you advice that turns out to be incorrect or only half true for your circumstance. It's more important to rely on the letter of the law instead of what USCIS tells you. The law protects you, not USCIS. Your lawyer should have been aware on how USCIS has adjudicated such cases in the past and told you the risks in applying when you did.

It is a shame that CIS does not have someone that can respond and give comments. As I mentioned, I knew my case was not clear and went to them with specific questions to which they said they could not answer. I should interpret it and file and see what happens.

USICS should never have told you that you should just apply and see what happens. At the very least they should have informed you of the risks you face in applying when you did. Of course, that would be asking too much from USCIS as their customer service reps and IOs are not trained correctly in how to provide answers to specific questions/cases like yours.