All done, then they tell me...

[WBH]

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.

They can apply 90 days before thress years of GC but not 90 days before three years of marriage. If one married a GC on 01MAR2007 got the GC on 31MAY2007, then he
can file N400 today. If that person married a GC on 31MAY2007 got the GC on 31MAY2007 (same day), he can not file today.


You have to accept this: Re-application is your only way unless you do not want this citizenship anymore.

If your lawyer suggest otherwise like appeal they should be sued for malpractice because they err on such simple matter.

 

[Bobsmyth]

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.

Is he a lawyer or an "immigration consultant", and how much did he charge to file ? He should have caught that you were ineligible, unless of course he is trying to milk money from you..something that would be confirmed by him pushing you to appeal instead of refiling.

 

[sanjoseaug20]

Is he a lawyer or an "immigration consultant", and how much did he charge to file ? He should have caught that you were ineligible, unless of course he is trying to milk money from you..something that would be confirmed by him pushing you to appeal instead of refiling.

True that. You have better chances of suing your lawyer and getting money, than suing CIS and getting something out of it (money, consideration, positive appeal).

 

[GungaDin]

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.

I don't see the inconsistency. In neither of the two cases above should the application be filed with a marriage less than 3 years. You've just framed the scenarios in a way that is confusing.

But, (to give you hope), we did have another person here on the forums who applied before she was eligible. In her case the IO was willing to delay adjudication for 6 months, so if you're a believer, start praying...

 

[SEA400]

If, by chance, OP had already completed the oath ceremony, by the time USCIS realized the situation, would they have stripped him of the Naturalization status.

 

[Jackolantern]

If, by chance, OP had already completed the oath ceremony, by the time USCIS realized the situation, would they have stripped him of the Naturalization status.

They could, but it is highly unlikely they would.

First, they would have to go to Federal court, which is expensive for them. If they succeed, all that would happen is the OP's permanent resident status would be reinstated, since there is no fraud or criminality that would justify deportation or stripping the LPR status. And then the OP could just reapply and become a citizen again.

So in a case like this, if they approved it in error, USCIS doesn't have much to gain by pursuing denaturalization. They're only going to pursue denaturalization if they think deportation is the end result. At least that's how it's been in all the denaturalizations I've read about. Granted, there was a case where they couldn't deport the guy, but that's because no country would take him when they tried to deport him ... USCIS still thought they'd be able to deport him when they filed the denaturalization case.

However, if in the future we got a staunch anti-immigrant president like Tom Tancredo, I could see him issuing an executive order to pursue mass denaturalization just to please his anti-immigration supporters and/or to reduce the number of voters in certain areas of the country that would mostly vote against him. And he would spin it in the media as stripping thousands of terrorists and criminals of citizenship, even if half of the denaturalizations were for mere errors like in this case or smaller violations like failing to disclose traffic tickets.

 

[Bobsmyth]

If, by chance, OP had already completed the oath ceremony, by the time USCIS realized the situation, would they have stripped him of the Naturalization status.

They would have had to start denaturalization proceedings against him..something they may not be willing to do given the circumstances.

 

[Bobsmyth]

But, (to give you hope), we did have another person here on the forums who applied before she was eligible. In her case the IO was willing to delay adjudication for 6 months, so if you're a believer, start praying...

The OP was already rejected for not being eligible at the time of filing. USCIS can't go back and delay adjudication..the case has already been adjudicated. Plus, a delay in adjudication wouldn't have helped since he didn't meet marriage requirement at the time of filing.

 

[Jackolantern]

This lawyer needs to be reported to the state bar association, and to the AILA if the lawyer is a member. It's one thing to make the mistake when initially filing the case, but it's quite another to encourage the OP to appeal when it is so clear (at least it should be blatantly clear to an immigration lawyer) that the OP didn't meet the requirements at the time of applying. Total incompetence and greed.

 

[WBH]

They could, but it is highly unlikely they would.

First, they would have to go to Federal court, which is expensive for them. If they succeed, all that would happen is the OP's permanent resident status would be reinstated, since there is no fraud or criminality that would justify deportation or stripping the LPR status. And then the OP could just reapply and become a citizen again.

In such scenario, I really wonder if the person get the a citizen's right to be protected from deportation due to soemthing bad after citizenship. If a person is naturlaized properly,
then he can never be deproted even if he commits a serious crime say 5 years later (criminal punishment is another matter). But if someone get naturlaized even he is 3 months
short but USCIS does not catch it, then 5 years later, he commit a serious crime. The government is mad and want top deport him. But they can not deport a ciotizen, then they
exmaine and find he was not really eligble, so they still can denaturalize such a naturalized citizen and deport him.

So I believe if USCIS does not catch a mistake and let a person take oath, such a naturelized citizen is much protected
than other naturlized citizens in terms of deportation. Of course, if USCIS only bother when teh crmime is seriosu enough
and the crime is seriosu enough for a very very long jail, deportation may be a moot point anyway (if one get life sentence
or 40 years in prison, he can not even get deported even if he want to).

So if one big legal benefit of naturlaization is to get immunity from deportation, and if government has a procedure that always examine one's naturalization
history when one commita crime after naturalization, such legal benefits does not exist for people who applied for citizenship too early but got thru because
USCIS made a mistake.

 

[Jackolantern]

In such scenario, I really wonder if the person get the a citizen's right to be protected from deportation due to soemthing bad after citizenship. If a person is naturlaized properly, then he can nver be deproted even if he commit a serious crime
say 5 years later (criminal punishment is another matter). But if someone get naturlaized even he is 3 months short
but USCIS does not catch it, then 5 years later, he commit a serious crime. The government is mad and want top deport
him. But they can not deport a ciotizen, then they exmaine and find he was not really eligble, so they still can denaturalize such a naturalized citizen
and deport him.

I don't think there has ever been a case like that. It would be an interesting precedent if/when it ever happens. Especially if the individual pleaded guilty to the post-naturalization crime ... they would not have been told of the immigration consequences of pleading guilty, because of being a citizen at the time.

 

[Huracan]

If the original poster pursues the legal avenue I'd like to see what the result is. I don't think the law is on his side. I agree that the 3 year rule is confusing, but I am not sure how much traction anybody can get out of claiming it is confusing. As it stands and has said quite a few times in this thread, one has to be married to the US citizen during 3 years. This means that if one marries a non US person in 2005, then that person naturalizes in 2006, the clock starts in 2006 to count the years, the spouse has to be a US citizen for those 3 years, not just the marriage has to be for 3 years. The 90 days rule applies only to the continuous residence. This is beneficial in the following case. If one marries a US citizen in January 2003 and obtain a green card in January 2005, that person if still married to the US citizen could apply for citizenship 90 days before January 2008, because at that time it would both have more than 3 years of marriage and 3 years minus 90 days of continuous residence. I hope the example helps clarify the issue. The 90 day rule on marriage cases is beneficial for some people but one would have to marry the US citizen before obtaining the green card to get any benefit out of the 90 day rule.

 

[dms1]

If the original poster pursues the legal avenue I'd like to see what the result is.

I think by far the most likely result is that the OP gets to be a somewhat poorer permanent resident and an incompetent lawyer gets richer.

The OP needs to take a long think about whether to trust a lawyer who apparently cannot, or chooses not to, follow instructions that are laid out in black and white. Just imagine how they might cope trying to argue a subtle matter of law.

 

[GungaDin]

If the original poster pursues the legal avenue I'd like to see what the result is. I don't think the law is on his side. I agree that the 3 year rule is confusing, but I am not sure how much traction anybody can get out of claiming it is confusing. As it stands and has said quite a few times in this thread, one has to be married to the US citizen during 3 years. This means that if one marries a non US person in 2005, then that person naturalizes in 2006, the clock starts in 2006 to count the years, the spouse has to be a US citizen for those 3 years, not just the marriage has to be for 3 years. The 90 days rule applies only to the continuous residence. This is beneficial in the following case. If one marries a US citizen in January 2003 and obtain a green card in January 2005, that person if still married to the US citizen could apply for citizenship 90 days before January 2008, because at that time it would both have more than 3 years of marriage and 3 years minus 90 days of continuous residence. I hope the example helps clarify the issue. The 90 day rule on marriage cases is beneficial for some people but one would have to marry the US citizen before obtaining the green card to get any benefit out of the 90 day rule.

Good explanation.
I think OP's legal team is having a problem separating 'married to USC for 3 years' from 'Being a LPR for 3 years' - just because they are both for 3 years.
OP should have figured out by now that a condition applied to one (LPR - 90 days) does not mean that the same condition applies to all other '3 year' conditions.
( If one was for lets say 4 years and the other for 3 years, there wouldn't be any confusion at all.)
A lot of people have the same confusion over Permanent Residence and Continuous Residence.
Seems like people read what they want to read...not necessarily what is written.

OP, your lawyer should re-file the case for you out of their own pocket. If they don't, threaten to report them to your State Bar.
This is NOT your fault. You hired a lawyer to do something for you. They cannot guarantee a specific result, but they do have a duty to at least file the papers correctly. If they want to appeal, it should be on their dime as the issue isn't with your case, its is that it was filed incorrectly.
(It will be quicker and cheaper for everyone if you just re-file).
Be on the lookout for delaying tactics. They may know they don't have a case, but tell you that it will take them 6 months to go through the appeal process and they will bear the cost of the appeal themselves and if the appeal fails, they'll file a new case on their dime.
However, if you want to abandon the case and file a new application now, then you have to pay for it.
(essentially telling you that if you don't pay up, you can expect to wait another year before getting your Citizenship - knowing full well that there is a good chance that you'll cough up the additional filing fee instead of waiting another year. If they do this, report them to the State Bar and see if you can recover all your filing costs)

 

[WBH]

If the original poster pursues the legal avenue I'd like to see what the result is. I don't think the law is on his side. I agree that the 3 year rule is confusing, but I am not sure how much traction anybody can get out of claiming it is confusing.

Law simply say you are eligible when you a three year pn GC and three years marriaged t teh same citizen who has been a citizen for three years. It is USCIOS who make the rule when to apply. So I beleive, coreect mne if I am wrong, this 90-day rule is already a favor USCIS does applicants because they think it takes 90 days to proocess. One can argue that
since of the intent of this 90 day rule is to overcome processing time then it shoudl apply to both GC and marriage but
USCIS can argue teh rule is rule. Othherwise if purely according to thsi intent, one should apply 2 years ago when he think
his case can take USCIS 2 years to process

 

[sanjoseaug20]

Good explanation.
I think OP's legal team

This phrase "legal team" reminded me that this is what OP also said. I wonder if it is a lawyer+team OP uses for other purposes too, such as H1 filings and so on. In that case, I can understand the demeanor as he/she is not used to hearing NO, and rather than making money, it is a question of them telling what the boss wants to hear.

 

[DreamUSA]

i am reading this...I do not understand the 2 things:

1) Reference to this so-called lawyer. If he/she was so competent, the lawyer should have provided a proper guidance. In my opinion, OP should sue his/her lawyer not USCIS (assume OP properly disclosed the case details)

2) What's OP basis for appeal: USCIS is telling him that OP does not qualify…when OP did not meet the requirements .It is OP’s mistake. Yes, USCIS could have caught this early…and but is better than finding out after naturalization…..