maisflocon
Registered Users (C)
Does anyone know if USCIS grant interviews to applicants when conditions are not met or has little chance to be approved?
Does USCIS grant interviews to hopeless applications?
- Thread starter maisflocon
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I don't think so. You might try an Infopass if the question is simple enough. Otherwise perhaps you should try to contact a lawyer.
On the other hand if what you mean is that you send your application for N-400 and the basic requirements are met (fee, years of having had the Green Card) you will get to the interview, and at that time you will get approved or denied. However, why spend the money if you could consult before spending it, what would be the advantage of getting an interview if the case is hopeless. Do you think you have a chance of convincing the IO? Officers have a certain degree of discretion, but it is not too big. I don't think any IO would approve an application if you sent it more than 90 days before the 5 year anniversary of the Green Card, to put a simple example. However, an IO can approve somebody who has had trouble with the law in minor things. I am sure on major things they don't have such discretionary power. Anyway, your question is too vague to know exactly what you need.
On the other hand if what you mean is that you send your application for N-400 and the basic requirements are met (fee, years of having had the Green Card) you will get to the interview, and at that time you will get approved or denied. However, why spend the money if you could consult before spending it, what would be the advantage of getting an interview if the case is hopeless. Do you think you have a chance of convincing the IO? Officers have a certain degree of discretion, but it is not too big. I don't think any IO would approve an application if you sent it more than 90 days before the 5 year anniversary of the Green Card, to put a simple example. However, an IO can approve somebody who has had trouble with the law in minor things. I am sure on major things they don't have such discretionary power. Anyway, your question is too vague to know exactly what you need.
Immigrant66
Registered Users (C)
Give us some general idea about your issue
If you need a correct info and want to hear others exprience or advice, give us some general idea about your issue.You dont have to go to detail if you dont feel comfortable but atleast provide some info that why you think it might be hopeless.
Beside some cases might lead to removal process so be careful about even applying if you think your issue might be one of them.
Good luck
If you need a correct info and want to hear others exprience or advice, give us some general idea about your issue.You dont have to go to detail if you dont feel comfortable but atleast provide some info that why you think it might be hopeless.
Beside some cases might lead to removal process so be careful about even applying if you think your issue might be one of them.
Good luck
maisflocon
Registered Users (C)
Thanks immigrant66, you are very helpful and nice. I think my case is hopeless because I make a lot of trips to Canada to be with my wife in the last 2+ years, and I stay there for quite some time each time, only coming back to the states once a month or every few months for a day or two. Someone in this forum also said there is such a thing as a five-year rolling window, whereby you are supposed to be in the US for 50% of the time in the 5-years preceding the interview and the oath. I stay in the US more than 50% of the time if you count the time since I got GC all the way til interview or oath, but not if you count 5 years preceding the interview. Some people advised me to give up my GC voluntarily and one had even asked me to leave enough money for my wife before going into the interview. Another also said that my story is illogical and implausible.
That's why I think my case is hopeless, but I don't understand why UCSIC would grant an interview when my travel records look "bad" (in the eyes of most here and probably the IO too), that's why I asked the question.
Don't worry about that. USCIS schedules a bunch of interviews, even if the case looks like it is going to be denied. If you have already applied, go there, if the IO goes over your trips and asks you about them, tell the truth. I am not sure if you plan to move you and your wife to the US once you get US citizenship. I think you don't have a straightforward case but I don't know what your chances are. It seems you don't have any criminal background, so the worst that can happen is that USCIS denies your case. I would say that if you have come this far go the extra step. If on the other hand you lied on the application, as in you weren't truthful about the trips and length of stay outside of the US then I think you should be worried. If you put all the trips on the application and the application is truthful to the best of your knowledge you still have a shot of gaining citizenship if you go to the interview.
Jackolantern
Registered Users (C)
If you sent the right fee and you filed the N-400 on or after the 5 years minus 90 days, you will get an interview. Even if your application is obviously unapprovable based on what is listed on the paper, they will still schedule an interview to give you the opportunity to explain any issues or make corrections.
In your case you don't have the required 30 months of physical presence in the 5 years leading up to the interview. That is a guaranteed rejection unless you have an N-470 or were in the US military. But people sometimes make mistakes with the dates. So rather than rejecting you outright for a typo, you are given the chance to correct those in the interview. If there are no corrections, or the corrections still leave you without the 30 months of physical presence, then you'll be denied. But not before the interview.
In your case you don't have the required 30 months of physical presence in the 5 years leading up to the interview. That is a guaranteed rejection unless you have an N-470 or were in the US military. But people sometimes make mistakes with the dates. So rather than rejecting you outright for a typo, you are given the chance to correct those in the interview. If there are no corrections, or the corrections still leave you without the 30 months of physical presence, then you'll be denied. But not before the interview.
maisflocon
Registered Users (C)
Hi Jackolantern, I sincerely appreciate that you continue to address my concerns. However, it's important that I correct the inaccuracies in your statements once and for all, because others will be reading this and take what you said as being true.
The 30-month physical presence rule only applies preceding the date of the naturalization application. There is no regulatory requirement to have 30 months of physical presence preceding the interview. For this, I direct you to Act 316 of the Immigration and Nationality Act (INA).
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=cb90c19a50729fb47fb0686648558dbe
That said, I still believe most of what you said - that in the end my case may still be denied, and your advice - while not a requirement, should be followed.
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While the physical presence requirement in not mandated by law to be fulfilled up until the interview or oath, the continuous residency requirement is.
Those on this board who argue that the physical presence requirement needs to be fulfilled up until the interview or oath are perhaps basing it upon their recollection of past adjudication decisions rather than on rule of law.
Those on this board who argue that the physical presence requirement needs to be fulfilled up until the interview or oath are perhaps basing it upon their recollection of past adjudication decisions rather than on rule of law.
Jackolantern
Registered Users (C)
That Act is only one part of what USCIS bases their decision on. In addition, there are court precedents and procedural rules that they follow to interpret and implement the law. You don't get a free pass on the physical presence and moral character requirements after filing just because you satisfied them at the one point in time when filing the application.
But you don't have to believe me, and in fact you shouldn't take my word for it when you are facing the distinct possibility of denial. Nor should you believe your own limited (compared to a professional) knowledge. Because when you are staring in the face of denial, you need to prepare yourself very very well in order to rescue your case and convince them to approve yours. So talk to an immigration lawyer, and if your case has a chance then have them help you prepare based on all the relevant laws and precedents and perhaps accompany you to the interview. If the lawyer says I am wrong, I will gladly admit the error of my ways.
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Since you are making the argument, do you have any references or examples of past cases that were denied solely on not meeting physical presence requirement after an application was submitted?
Under your statement, an applicant with 33 months of physical presence in the previous 5 years to his application for naturalization would be denied if their total travel time outside the US exceeded 3 months in the time between applying and their oath.
I've seen examples of denials for not meeting continuous residency requirement after application submission, but haven't come across any denials due to not meeting the physical presence requirement after submitting an application for naturalization.
Triple Citizen
Registered Users (C)
The physical presence requirements have to be met until the oath is taken in my opinion.
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Any references to back up that claim?
Triple Citizen
Registered Users (C)
maisflocon
Registered Users (C)
Which part of INA 316(a) backs up your claim?
Sec. 316. [8 U.S.C. 1427]
(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.
maisflocon
Registered Users (C)
I am trying to get facts to back up everything you have said, so far I have found none. In fact, even your statement of "There is no free ride on moral character requirement" is backed up by the law. INA 316(a)(3) states that "during all the period referred to in this subsection has been and still is a person of good moral character...". If something as basic as moral character requirement is spelled out in writing, surely physical presence should be as well.
In the case of Abdul-Khalek v. Jenifer:
"...the examiner gave her two reasons for her ineligibility: (1) that she had not met the "physical presence" requirement because she had been absent from the United States for 39 of 60 months prior to her citizenship exam; and (2) that because of her absences of more than six months but less than one year, she did not meet the "continuity of residence" requirement. The ineligibility decision was upheld; however, the INS District Director found that the examiner misapplied the "60-month physical presence" rule, and found that the correct application of the rule is to determine physical presence in the 60 months preceding the date of the naturalization application."
You said the physical presence was a regulatory requirement in another post, the fact is it's not. Now you are saying there are court precedents and procedures that they follow. Could you back up your statements with facts? because people will read this and think what you said it's true. Immigration is not a religion, so it's not a matter of belief or disbelief, but rather what's stated in the law. There are a lot of gray areas obviously, and I believe what you said is one of them.
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Triple Citizen
Registered Users (C)
We can agree to disagree on our interpretations or clause (2) you mentioned below. The N-445 asks questions with regards to travel overseas for a reason. Consider a case where someone meets the physical presense requirement at the time of the interview. The applicant gets stuck in the name check process for the next two years. The applicant acquires a re-entry permit and leaves the US for 2 years. Returns after two years for the oath ceremony and convinces the POE officer to be granted entry. Mentions a two year trip on his N-445. You can guarantee that the applicant will not be pulled from his oath ceremony?
I am ready to pay the price if I am wrong, are you if I am right?
I am ready to pay the price if I am wrong, are you if I am right?
In that case the applicant would be denied for not meeting the continuous residency requirement (not the physical residency requirement up until application) due to a two year trip between applying and the final oath.
The way I interpret it is that the reason for asking for travel dates at both the interview and N-445 is to determine whether a break in continuous residency has occurred , not whether a break in physical residency occurred due to any travel between application and oath.
The way I interpret it is that the reason for asking for travel dates at both the interview and N-445 is to determine whether a break in continuous residency has occurred , not whether a break in physical residency occurred due to any travel between application and oath.
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maisflocon
Registered Users (C)
Bobsmyth knows what he is talking about.
Clause (2) is a requirement on continuous residence. There is a very clear distinction between continuous residence and physical presence in the book so there should be no room for different interpretation there.
A scenario, as valid and likely to happen as it is, does not make up the law. The whole point is that there is no regulatory requirement on physical presence after filing, only continuous residence requirement. Whoever says that the 30 months of physical presence preceding interview is a regulatory requirement is simply not true.
That's not to say the case won't be denied on this ground, in fact it might very well be but that (and everything else not in the rulebook) fall into the gray area and it's totally up to the discretion of the IO.
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Triple Citizen
Registered Users (C)
The applicant successfully defended at the POE that he indeed did not abandon his US residency.
Let us just agree to disagree, since this will not lead anywhere
Let us just agree to disagree, since this will not lead anywhere
The applicant successfully defended at the POE that he indeed did not abandon his US residency.
Let us just agree to disagree, since this will not lead anywhere
What does defending your LPR status at POE have to do with continuous residence? A reentry permit preserves your LPR status, not your continuous residency requirement for naturalization.