Application denial need help to decide which options to take

[raevsky]

Ok got the denial letter in the mail. The gist of it says that between 8/14/2006 and 7/23/2008 you were only in the country for 15 days.

So, did it mention separation?

He had also mentioned that my wife admitted that she was staying in overseas, which is a lie he asked her 3 times where she lives and she told him she lives in the United States.

Staying and living are different things. If she confirmed she lived overseas, she would be considered having abandoned her GC. But she was not.

I can understand if they want to presume or assume whatever they like, but I do not understand that they could falsify a statement that my wife gave,

Were you present at her interview? If the letter says that, that is probably true.

another false statement he wrote on the denial is that she was unemployed and had no residence of your own before the departure, in fact again he was wrong she had been working from the time she was legally authorized to work in the US sometime in 2002, and she only stopped working because the birth of our son in 8/2005 after that she also finished her degree 12/2005.

But you do not know what your wife said at the interview. The officer had reasons to believe her even if what she was saying was not true.

The statement that we had no residence of our own is that, we have always lived in joint family system, the house that we have always lived in is under my parents name, and the house that she resides in now is under my brothers. I have always been a pragmatic person and will admit when I'm wrong, but in this case I feel that we were sincerely wronged by this officer, he did not even ask my wife to give any evidence that may prove that our primary residence is still the US.

It is all very strange. Usually if they have issues like that during naturalization proceedings, they start deportation immediately. Why didn't they start deportation proceedings for her?

 

[Jackolantern]

It is all very strange. Usually if they have issues like that during naturalization proceedings, they start deportation immediately.

It does not follow that a naturalization denial for breaking continuous residence would also result in revocation of the green card for abandoning residence, because the criteria are different. For naturalization it is more strict; for example if you go away for 2 years with a reentry permit, your green card will usually be preserved, but you usually would be considered to have broken residence for naturalization purposes.

 

[Jackolantern]

So, did it mention separation?

It's a no-win situation. If there was separation, that goes against the claim that they were living together for the 3 years. If there was no separation, it means both were living outside the US. Either way leads to denial.

 

[Jackolantern]

another false statement he wrote on the denial is that she was unemployed and had no residence of your own before the departure, in fact again he was wrong she had been working from the time she was legally authorized to work in the US sometime in 2002, and she only stopped working because the birth of our son in 8/2005 after that she also finished her degree 12/2005.

The 3 years leading up to the interview would be mid-2005 to mid-2008, right? From what you're saying here, it appears that she indeed was not employed during that time, except for July/August 2005 ... which would not include the time in 2006 when she started taking those 5-month trips.

 

[raevsky]

It's a no-win situation. If there was separation, that goes against the claim that they were living together for the 3 years. If there was no separation, it means both were living outside the US. Either way leads to denial.

I disagree. The main problem was that she claimed that the husband had permanent residence overseas. That was the key to denial. Because if she resides overseas, she abandones GC. But if she resides in the US, that means separation from the husnband.

If he resided permanently in the US, but stayed temporarily outside, the situation is very much different. Then they both resided permanently in the US and together. No problems with residence, no problems with separation.

It does not follow that a naturalization denial for breaking continuous residence would also result in revocation of the green card for abandoning residence, because the criteria are different. For naturalization it is more strict; for example if you go away for 2 years with a reentry permit, your green card will usually be preserved, but you usually would be considered to have broken residence for naturalization purposes.

I do not think they are more strict. They are more or less similar, but a little different. For keeping GC what does matter is intent to live in the US permanently. You could go abroad, but with an intention to keep residence in the US. There are limitations - one year without RP or 2 years with RP mean abandoning GC, unless a returning resident visa is obtained.

For continous residence it is less intent, but more actual dwelling place.

So, if you leave for Canada just for 1 day to establish permanent residency there (get a Canadian PR status), and then return back to US (without changing the place of your dwelling), you keep continuos residence in the US, but abandon you GC.

If, instead, you go to England for 1.5 years with a reentry permit to study, you keep GC, but loose continuous residence.

here in order to figure out why Gc was ot abandoned, we need more information. I would say, the dates of employment in the US and abroad. The dates of all entries to the US and abroad. I am pretty sure the requirements are actually very similar in terms of real life situations (not hypothetical examples).

 

[immigrateful]

"He acknowledged that he was at that time residing abroad with his spouse and children and gave his address in England."

This was crucial fact, that they have admitted having residence in UK – so their continuous residence in US is broken.

This denial doesn’t have to do nothing with 6 months trip rule as you have pointed out.

Precisely. This example is given by the USCIS to emphasize the fact that one needs to maintain residency till the last day (oath ceremony). It's being quoted out of context here.

 

[vision1227]

IO sucks!

So, did it mention separation?

No.

Staying and living are different things. If she confirmed she lived overseas, she would be considered having abandoned her GC. But she was not.

Letter used the word "Staying"

Were you present at her interview? If the letter says that, that is probably true.

The letter is what the word of God? I think I would believe my wife over the IO, to further my point, the attorney that I spoke with after the interview, knew the IO by the name on the form "You will be mailed a decision about your case." She told us that this IO had a bad reputation at the Houston field office, for making too many presumptions. I do understand these IO's need some discretionary powers, but they should allow a case they do not feel has strong merit to be rebutted. In our case he did not even ask for a shred of evidence that my wife could have easily presented at the time of interview to perhaps change his mind. I mean maybe 5 minute chance to explain circumstances is that too much to ask for? After getting all the facts and then denying, I would be more accepting of the decision.

But you do not know what your wife said at the interview. The officer had reasons to believe her even if what she was saying was not true.

???