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puzzled_lpr_eb2

Registered Users (C)
Hi, I am frustrated and my current immigration lawyer will be tackling the legal challenges to my N-400 rejection. In the meantime, I would like to ask the forum's informal opinion or at least any other recommendation as to whether I should take alternative steps of any kind.

This just happened a few days ago this very week.

I am a beneficiary of a EB-2(C) application with National Interest Waiver, November X, 2005 and have been in the US on a continuous basis since.
I married a US Citizen in December Y, 2006
I applied N-400 in full and the application is date stamped in September Z, 2009
I have never been away from the US for more than 30 days at any one time, but typically on business trips and most of the trips are short ones anyway.

The difference between September Z, 2009 and the three year anniversary of our marriage in December Y, 2009 is calculated to 77 days.


My N-400 was processed, finger printing appointment issued and interview date set:
September 2009 = confirmation N-400 was processed and payment taken
Oct/November 2009 = Fingerprinting
January 2010 = repeat Fingerprinting at no cost, as they had discovered a record had expired
January 2010 = appointment scheduled this week (March 2010)

I pass the interview with flying colors. I get the same-day notice for *oath taking*, subject to final verification.

I stand in line for oath registration and am just twelve feet away from the finish line, and I get called over by the same interviewer...

The final verification system has flagged my case for filing too early as I did not qualify "on September Z, 2009" and he has conferred with the supervisor and is rejecting my N-400 forthwith.

What mistake did I do in applying and is there any penalty that will be imposed for early filing?

Thanks,
 
You need to double check your rejection letter. You get a grace period of 90 days for residency perspective, not for marriage. If you are not married for 3 full years (no 2 year 9 month business that is), you should not be filing.
 
puzzled_lpr_eb2 said:
What mistake did I do in applying and is there any penalty that will be imposed for early filing?
Click to expand...

You applied too early because you need to be married for at least 3 years. 90-day advance only applies to
GC time not to marriage.

There is no penalty except fro denial and waste of application fee. You can re-apply
 
puzzled_lpr_eb2 said:
Hi, I am frustrated and my current immigration lawyer will be tackling the legal challenges to my N-400 rejection. In the meantime, I would like to ask the forum's informal opinion or at least any other recommendation as to whether I should take alternative steps of any kind.

This just happened a few days ago this very week.

I am a beneficiary of a EB-2(C) application with National Interest Waiver, November X, 2005 and have been in the US on a continuous basis since.
I married a US Citizen in December Y, 2006
I applied N-400 in full and the application is date stamped in September Z, 2009
I have never been away from the US for more than 30 days at any one time, but typically on business trips and most of the trips are short ones anyway.

The difference between September Z, 2009 and the three year anniversary of our marriage in December Y, 2009 is calculated to 77 days.


My N-400 was processed, finger printing appointment issued and interview date set:
September 2009 = confirmation N-400 was processed and payment taken
Oct/November 2009 = Fingerprinting
January 2010 = repeat Fingerprinting at no cost, as they had discovered a record had expired
January 2010 = appointment scheduled this week (March 2010)

I pass the interview with flying colors. I get the same-day notice for *oath taking*, subject to final verification.

I stand in line for oath registration and am just twelve feet away from the finish line, and I get called over by the same interviewer...

The final verification system has flagged my case for filing too early as I did not qualify "on September Z, 2009" and he has conferred with the supervisor and is rejecting my N-400 forthwith.

What mistake did I do in applying and is there any penalty that will be imposed for early filing?

Thanks,
Click to expand...


90 days short of the three year anniversary of your GC.
 
WBH said:
You applied too early because you need to be married for at least 3 years. 90-day advance only applies to
GC time not to marriage.

There is no penalty except fro denial and waste of application fee. You can re-apply
Click to expand...

sanjoseaug20 said:
You need to double check your rejection letter. You get a grace period of 90 days for residency perspective, not for marriage. If you are not married for 3 full years (no 2 year 9 month business that is), you should not be filing.
Click to expand...

Ok, thank you all for the comments. However, could someone explain in a civil fashion the following process:

From the N-400 Instructions section "When am I Eligible to Apply?" Para. 2.

If you are applying based on five years as a LawfulPermanent Resident or based on three years as aLawful Permanent Resident married to a U.S. citizen,you may apply for naturalization up to 90 days beforeyou meet the ''continuous residence'' requirement. Youmust meet all other requirements at the time that youfile your application with us.
Click to expand...

* was applying based on three years as a Lawful Permanent Resident married to a U.S. Citizen... is that not correct?
 
puzzled_lpr_eb2 said:
Ok, thank you all for the comments. However, could someone explain in a civil fashion the following process:

From the N-400 Instructions section "When am I Eligible to Apply?" Para. 2.



* was applying based on three years as a Lawful Permanent Resident married to a U.S. Citizen... is that not correct?
Click to expand...


Yes, but the paragraph also states that "You must meet all other requirements at the time that youfile your application with us" ,meaning you must have been married to a USC for at least 3 year at the time you apply.

When you applied, you didn't have 3 years of marriage to a USC. They should have caught this at interview, instead of waiting until oath.
Don't let your lawyer talk you into filing an appeal since the denial won't be overturned. You can go ahead and refile now.
 
Almost same thing happened to me, I had to widhraw the application at interview because my spouse had 90 days short of citizenship when I applied and I had applied on married to citizen for 3 years. I thought I can apply 90 days earlier but I was wrong.
 
Bobsmyth said:
Yes, but you weren't married to a USC for 3 years at the time you applied.
Click to expand...

Ok, perhaps I am used to thinking in logical terms like a computer algorithm and a test of the required steps separated by the logical operators, AND, NOT, OR:

And I admit, others may have direct knowledge about this issue, but it seems strange that:

(2) A Lawful Permanent Resident for at least threeyears and at least 18 years old,
You have been married to and living with thesame U.S. citizen for the last three years,
AND
Your spouse has been a U.S. citizen for thelast three years;
Click to expand...

as found in the N-400 instructions, page 1, is very clear:

((LPR for at least 3 years and at least 18 years old) AND (married to and living with US Citizen for 3 years)) AND (Spouse has been a US Citizen for the last three years) = can file N-400.

Now, there seems to be a conflict with the condition (married to and living with US Citizen for 3 years) with the following clause found in the "When am I eligible to apply?" section:

When Am I Eligible to Apply?

You may apply for naturalization when you meet all the requirements to become a U.S. citizen. The section of the Guide called ''Who is Eligible for Naturalization'' and the Eligibility Worksheet found in the back of the Guide are tools to help you determine whether you are eligible to apply for naturalization. You should complete the Worksheet before filling out this Form N-400 application.

If you are applying based on five years as a Lawful Permanent Resident or based on three years as a Lawful Permanent Resident married to a U.S. citizen, you may apply for naturalization up to 90 days before you meet the ''continuous residence'' requirement. You must meet all other requirements at the time that you file your application with us.
Click to expand...

Please note the following:

* one can only file based on "three years as a Lawful Permanent Resident married to a U.S. Citizen", if they are indeed a LPR with 3 years status (I am) and married to a U.S Citizen (I am).
* they can file 90 days before the continuous residence requirement is met...

(AA) So, just by looking at this section alone: hyptothetically, a LPR + 3 years, married on the 1st day of his LPR status, can indeed file 90 days before the end of his third year as an LPR assuming of course he has not left the US for any considerable amount of time; Would any of you agree?

(BB) What happens if the LPR has a 4 year status, LPR + 4 years and gets married? According to the above statements, you can apply EITHER LPR + 3 years or LPR + 5 years, but not "between LPR+3 and LPR+5 years"

There are two problems as I see it in the USCIS regs:

(CC) It is not clear when you should be able to apply, if you are going to complete three years of marriage, and have been MORE THAN three years and LESS THAN five years as a LPR.

(DD) If the current USCIS practice is to demand a full three years of marriage at the time of N-400 application, commensurate with completing full three years of LPR, on the date of examination, but are allowed to file upto 90 days prior to completing the residency requirement of three years, is it not conflicting with itself? I ask since, from JUSTIA, it seems the argument for rejection centers around the definition of "date of examination" of this application, as per Title 8, Part 319 (1) (a) (3)

Title 8: Aliens and Nationality
PART 319—SPECIAL CLASSES OF PERSONS WHO MAY BE NATURALIZED: SPOUSES OF UNITED STATES CITIZENS

Browse Next
§ 319.1 Persons living in marital union with United States citizen spouse.

(a) Eligibility. To be eligible for naturalization under section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:

(1) Has been lawfully admitted for permanent residence to the United States;

(2) Has resided continuously within the United States, as defined under §316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence;

(3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period;

(4) Has been physically present in the United States for periods totaling at least 18 months;

(5) Has resided, as defined in §316.5 of this chapter, for at least 3 months immediately preceding the filing of the application, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period falls within the required period of residence under section 316(a) or 319(a) of the Act, in the State or Service district having jurisdiction over the alien's actual place of residence and in which the alien has filed the application;
Click to expand...
 
puzzled_lpr_eb2 said:
* one can only file based on "three years as a Lawful Permanent Resident married to a U.S. Citizen", if they are indeed a LPR with 3 years status (I am) and married to a U.S Citizen (I am).
Click to expand...
You weren't married to a USC for 3 years when you applied. That is where the AND comes in.
puzzled_lpr_eb2 said:
(AA) So, just by looking at this section alone: hyptothetically, a LPR + 3 years, married on the 1st day of his LPR status, can indeed file 90 days before the end of his third year as an LPR assuming of course he has not left the US for any considerable amount of time; Would any of you agree?
Click to expand...
No, since you must be married for at least 3 years to a USC before you can apply.
puzzled_lpr_eb2 said:
(BB) What happens if the LPR has a 4 year status, LPR + 4 years and gets married? According to the above statements, you can apply EITHER LPR + 3 years or LPR + 5 years, but not "between LPR+3 and LPR+5 years"
Click to expand...
It depends when the LPR got married to a USC. If the LPR has 4 years of continuous residency and got married 1 year after getting LPR, then they can apply 3 years after marriage date to USC.
puzzled_lpr_eb2 said:
There are two problems as I see it in the USCIS regs:

(CC) It is not clear when you should be able to apply, if you are going to complete three years of marriage, and have been MORE THAN three years and LESS THAN five years as a LPR.

(DD) If the current USCIS practice is to demand a full three years of marriage at the time of N-400 application, commensurate with completing full three years of LPR, on the date of examination, but are allowed to file upto 90 days prior to completing the residency requirement of three years, is it not conflicting with itself? I ask since, from JUSTIA, it seems the argument for rejection centers around the definition of "date of examination" of this application, as per Title 8, Part 319 (1) (a) (3)
Click to expand...
It's not conflicting since what they are saying is that at time of application you can be up to 90 days away from 3 years of continuous residency if you have been married for 3 years to a USC. The date of examination is your interview, so you must have 3 years of continuous residency at your interview in order for them to adjudicate your case.
Also, the 90 days grace period applies only to continuous residency, not marriage, nor automatically 3 year GC anniversary. For example, a LPR gets their GC in 2003, marries a USC in 2004 but then breaks continuous residency requirement in 2007. The earliest the applicant can apply is up to 90 days before reestablishing 3 years of continuous residency as a LPR since the LPR has already been married to a USC for 3 years.

In your case, the earliest you could have applied is 3 years after your marriage date to a USC since you otherwise had 3 years of continuous residency as a LPR.
 
Bobsmyth said:
In your case, the earliest you could have applied is 3 years after your marriage date to a USC since you otherwise had 3 years of continuous residency as a LPR.
Click to expand...

Ok, if that is the case, I wonder why the N-400 application was not rejected at the very outset when we applied 77 days before that milestone. Surely they had some sort of checking process that included a review of eligiblity before the case could proceed? Are they checks so shallow that no one noticed that the app itself was invalid before they allowed the process to start and continue .. until the very end.. including the letter approving my citizenship and the oath taking confirmation with date/time??

Also, at the time I had my citizenship interview, I had been married 3 years and 2+ months. while at the same state since 7/2005.

What can I do to apply for a reconsideration of the N-400 as I have to refile, but would rather not file all the paperwork in duplicate again and pay another fee, as nothing would change from now to then. Is there an expedited hearing process?
 
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puzzled_lpr_eb2 said:
Ok, if that is the case, I wonder why the N-400 application was not rejected at the very outset when we applied 77 days before that milestone?
Click to expand...

You are not the first one to report this. USCIS is supposed to reject acceptance of yoru package at the beginning and return yoru check without cashing it.
But they can make a mistake. In your case, they even keep making mistake until the last moment. I wonder if they did not catch it and let you take oath,
would they still bother to go to court for denatualization (in such case PR status should and will be atutomatically re-established)

puzzled_lpr_eb2 said:
Ok, if that is the case, I wonder why the N-400 application was not rejected at the very outset when we applied 77 days before that milestone?
What can I do to apply for a reconsideration of the N-400 as I have to refile, but would rather not file all the paperwork in duplicate again and pay another fee, as nothing would change from now to then. Is there an expedited hearing process?
Click to expand...

I don't think you can do anything but just reapply with another fee. You can sue USCIS to get your money back but the
chance in my opinion is little because USCIS can als o argue it is your fault to apply when you are not eligible. Otherwise
everyone will apply early, say rigght after getting the GC (or even before the GC) and hope automatically get the case
alive until they are elgible.

In my opinon, ineligibility due to this criteria is not different from ineligbilitt due to other criteria so the USCIS is not obliged to reject at the
start otherwise anyone who got a denial can sue USCIS to get the money back except for the disqualifying factor occur after filing N400 and
before interview.


The N400 should have some macro built-in to automatically check such things
 
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puzzled_lpr_eb2 said:
Ok, if that is the case, I wonder why the N-400 application was not rejected at the very outset when we applied 77 days before that milestone. Surely they had some sort of checking process that included a review of eligiblity before the case could proceed? Are they checks so shallow that no one noticed that the app itself was invalid before they allowed the process to start and continue .. until the very end.. including the letter approving my citizenship and the oath taking confirmation with date/time??

Also, at the time I had my citizenship interview, I had been married 3 years and 2+ months. while at the same state since 7/2005.

What can I do to apply for a reconsideration of the N-400 as I have to refile, but would rather not file all the paperwork in duplicate again and pay another fee, as nothing would change from now to then. Is there an expedited hearing process?
Click to expand...

I think others have very clearly stated that
A) You were not eligible ... eligibility is based on the date you filed, not the date of interview.
B) Appeal will not do anything
C) Go ahead and re-file a fresh application

Yes, CIS rules are complex and sometimes do not make sense. Sometimes their interpretation does not make sense.

But that can not change the fact that your application, based on the facts you presented here, should have been rejected. No AND and OR conditions are going to change that. All you can get from CIS is an apology, and I am not sure of that too. Maybe the IO already apologized when he told you there was a mistake.
 
WBH said:
You can sue USCIS to get your money back
Click to expand...

Yeah, good luck with that !! It will cost you more, and will take more time. And that's what CIS (and many big companies) depend on. For them, they can not afford to set a precedent like that, so they will lawyer it, and if required spend 600K to avoid paying back USD 700. But for a person like you and me, it is easier to just move on as there are other things in life to take care of.
 
puzzled_lpr_eb2 said:
Ok, if that is the case, I wonder why the N-400 application was not rejected at the very outset when we applied 77 days before that milestone. Surely they had some sort of checking process that included a review of eligiblity before the case could proceed? Are they checks so shallow that no one noticed that the app itself was invalid before they allowed the process to start and continue .. until the very end.. including the letter approving my citizenship and the oath taking confirmation with date/time??
Click to expand...
It was a miss on USCIS side that should have been caught at interview. My guess is that oath letter went out just before they found out of your ineligibility.
puzzled_lpr_eb2 said:
Also, at the time I had my citizenship interview, I had been married 3 years and 2+ months. while at the same state since 7/2005.
Click to expand...
Yes, but you weren't married for 3 years when you sent in application, which made you ineligible from the start.
puzzled_lpr_eb2 said:
What can I do to apply for a reconsideration of the N-400 as I have to refile, but would rather not file all the paperwork in duplicate again and pay another fee, as nothing would change from now to then. Is there an expedited hearing process?
Click to expand...

At this point you have no choice but to refile a fresh application as filing an appeal is pointless. Also, there is no expedited process based on previously rejected applications.

Btw, did you have a lawyer originally file for you or look at your case?
 
Bobsmyth said:
It was a miss on USCIS side that should have been caught at interview. My guess is that oath letter went out just before they found out of your ineligibility.
Yes, but you weren't married for 3 years when you sent in application, which made you ineligible from the start.


At this point you have no choice but to refile a fresh application as filing an appeal is pointless. Also, there is no expedited process based on previously rejected applications.

Btw, did you have a lawyer originally file for you or look at your case?
Click to expand...


My lawyer did a thorough analysis before filing, and suggests we wait until the denial letter comes back to see which regs they quote and what remedial measures they allow; refiling is a distinct but annoying possibility. After this incident, the legal team actually spent more than a few hours re-looking at this, and believe there is just cause. I can't pretend I understand the legal machinations, perhaps it will boil down to definite scenario thus:

If a US Citizen marries a foreign citizen, that person has to obtain a green card first through marriage, and then three years of residency and marriage, then naturlization through N-400
* they can apply 90 days before three years.

If a US Citizen marries a foreign citizen, having a green card, then three years of residency and marriage, then naturalization through N-400
* they cannot apply 90 days before three years

Perhaps in the future, they can modify the rules to allow different categories of applicants.
 
puzzled_lpr_eb2 said:
My lawyer did a thorough analysis before filing, and suggests we wait until the denial letter comes back to see which regs they quote and what remedial measures they allow; refiling is a distinct but annoying possibility. After this incident, the legal team actually spent more than a few hours re-looking at this, and believe there is just cause. I can't pretend I understand the legal machinations, perhaps it will boil down to definite scenario thus:

If a US Citizen marries a foreign citizen, that person has to obtain a green card first through marriage, and then three years of residency and marriage, then naturlization through N-400
* they can apply 90 days before three years.

If a US Citizen marries a foreign citizen, having a green card, then three years of residency and marriage, then naturalization through N-400
* they cannot apply 90 days before three years

Perhaps in the future, they can modify the rules to allow different categories of applicants.
Click to expand...

Sounds like your lawyer should shoulder the costs of refiling.

Actually under both of your scenarios above, an LPR applying for N400 based on marriage can apply on the basis of 3 years of being a resident, provided that on the day of filing the LPR has to have been married for 3 years, which has already been explained to you by other posters.

Good luck.
 
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