Forced to withdraw N-400 at interview

U

USCitizen0001

New Member
Hello,

I'll claim ignorance up-front to the majority of the immigration process because I was born in the U.S. However, the events that my wife experienced yesterday don't sit right with me in the slightest bit. I suppose I'm reaching out to the community for some guidance before consulting a lawyer.

She applied under the eligibility of INA section 319(a) that a battered spouse of a US citizen can apply 3 years after becoming a LPR.

To begin with, I'll list the major events of my wife's immigration process here that I think are key.

Nov 2005 - Divorce final from previous spouse
Nov 2006 - I-360 approved under VAWA
Feb 2008 - Received Green Card
Feb 2010 - We were married
Dec 2010 - Sent N-400
Dec 2010 - Received notice that N-400 was in process
Dec 2010 - Received notice for Biometrics to be taken for N-400
Jan 2011 - Received notice for N-400 interview (Mar 2011)
Mar 2011 - Told (at interview) that because she remarried she cannot apply under section 319(a), must wait an additional 2 years, and there would be no refund of the application processing fee

The interviewer even went as far as to make her swear under oath to tell the truth, and then began with, "Well, it seems we have a problem....". My wife was left with two choices: 1) Withdraw the application, or 2) Be denied and apply in another 2 years. The interviewer advised her that if the present application was denied rather than withdrawn, it would be more difficult and more heavily scrutinized when she applied in the future.

First off, does marriage to me actually invalidate here opportunity to apply under 319(a)? I've jumped back and forth between different sections of the INA on the USCIS website and can find no such disqualification.

Secondly, shouldn't this have been caught when we originally submitted the application back in December? The loss of $680 doesn't bother me that much. What bothers me is the fact that they led my wife and I on for 3 months thinking that she was just a few steps away from being a citizen. Could they not have at least called to notify us of this ineligibility prior to making a multi-hour drive down to the USCIS office?

Are my concerns here valid in any way? Any advice would be appreciated.
 
My understanding is that your application would have been looked at closely at or just before interview time and not before. You should have consulted the attorneys before applying or even better came to this site and asked. You have to be patient and wait. Good luck.
 
USCitizen0001 said:
Secondly, shouldn't this have been caught when we originally submitted the application back in December? The loss of $680 doesn't bother me that much. What bothers me is the fact that they led my wife and I on for 3 months thinking that she was just a few steps away from being a citizen. Could they not have at least called to notify us of this ineligibility prior to making a multi-hour drive down to the USCIS office?
Click to expand...

The people who do the initial data entry are low-level clerks who only do very basic up-front checks, like checking for the right fee amount, and that the applicant has been a permanent resident for the required number of years. If those initial clerks got into more nuanced aspects of the law like your wife's situation, and started denying applications up front without an interview, there would be many more wrongful denials.

I have been unable to find anything about whether your wife is eligible to apply under the 3 year rule based on the battered spouse provisions, after remarrying. Obviously if she remarried the same abusive spouse she would be ineligible, but remarrying a different spouse is another matter and perhaps the officer made an error in failing to recognize the difference between those two scenarios.

I think the officer unfairly goaded your wife into withdrawing. If she didn't withdraw, the interview would have been ended with "decision cannot be made" and the case would undergo supervisor review. If she then acted fast enough to find a lawyer, and the lawyer found a court case or regulation that proves she is eligible for naturalization, the lawyer may have been able to send a supporting letter before the denial was finalized.

If the denial occurred before the lawyer's letter was received, she would be able to file for a hearing to challenge the denial.

If the lawyer couldn't prove the basis of eligibility and her denial is then finalized, the denial would not cause any "extra scrutiny" to worry about; I presume she hasn't committed a crime. The interviewer used a unwarranted scare tactic.

If your wife is eligible, it might be possible to reopen the case based on being wrongfully instructed to withdraw (although it may be faster and cheaper to reapply immediately instead of fighting to get it reopened). But check with a lawyer regarding her eligibility and the possibility of reinstatement; if the lawyer says she is eligible, he/she must quote a specific court case or regulation in support of her eligibility, otherwise your wife may be denied if she reapplies or tries to reopen.
 
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Note that if your wife isn't eligible right now, she doesn't have to wait 2 more full years to reapply. Under the regular 5-year rule, she can apply in November 2012 (i.e. 5 years minus 90 days since her green card was approved in Feb 2008).
 
This is strange. If her green card was based on VAWA, she is eligible in 3 year regardless of what who she is married to now! What was the reason the officer advised her to withdraw the case? Many of the officers aren't familiar with this VAWA rule and women are advised to take a copy of the memo issued by the USCIS about this to the interview...
 
USCitizen0001 said:
Hello,

I'll claim ignorance up-front to the majority of the immigration process because I was born in the U.S. However, the events that my wife experienced yesterday don't sit right with me in the slightest bit. I suppose I'm reaching out to the community for some guidance before consulting a lawyer.

She applied under the eligibility of INA section 319(a) that a battered spouse of a US citizen can apply 3 years after becoming a LPR.

To begin with, I'll list the major events of my wife's immigration process here that I think are key.

Nov 2005 - Divorce final from previous spouse
Nov 2006 - I-360 approved under VAWA
Feb 2008 - Received Green Card
Feb 2010 - We were married
Dec 2010 - Sent N-400
Dec 2010 - Received notice that N-400 was in process
Dec 2010 - Received notice for Biometrics to be taken for N-400
Jan 2011 - Received notice for N-400 interview (Mar 2011)
Mar 2011 - Told (at interview) that because she remarried she cannot apply under section 319(a), must wait an additional 2 years, and there would be no refund of the application processing fee

The interviewer even went as far as to make her swear under oath to tell the truth, and then began with, "Well, it seems we have a problem....". My wife was left with two choices: 1) Withdraw the application, or 2) Be denied and apply in another 2 years. The interviewer advised her that if the present application was denied rather than withdrawn, it would be more difficult and more heavily scrutinized when she applied in the future.

First off, does marriage to me actually invalidate here opportunity to apply under 319(a)? I've jumped back and forth between different sections of the INA on the USCIS website and can find no such disqualification.

Secondly, shouldn't this have been caught when we originally submitted the application back in December? The loss of $680 doesn't bother me that much. What bothers me is the fact that they led my wife and I on for 3 months thinking that she was just a few steps away from being a citizen. Could they not have at least called to notify us of this ineligibility prior to making a multi-hour drive down to the USCIS office?

Are my concerns here valid in any way? Any advice would be appreciated.
Click to expand...

It sounds like your wife was bullied by the IO. I have not seen anything to indicate that the fact that someone with an approved I-360 becomes ineligible for INA 319(a) just because that person remarries. The relevant USCIS policy memo from 2002 does not mention anything about that: http://www.uscis.gov/files/pressrelease/PolMem89.pdf

It is also a bunch of bull that having the N-400 denied somehow prejudices your wife's future N-400 applications. The IO appears to have used unfair scare tactics. It would indeed have been better, as Jackolantern said, for your wife to insist on the N-400 being adjudicated, as the application would then receive a supervisor review.
However, since your wife did formally withdraw her N-400, it does not seem to me that there is much she can do about it now (except for starting the N-400 process from scratch). I think your wife should talk to a few immigration lawyers to find out about her current eligibility for naturalization under INA 319(a) and if her remarriage to you really makes her ineligible (she might also ask if it might be possible to file a motion to have her withdrawn N-400 reopened - although I suspect that the answer might be negative on that one). If there are no clear policy statements from USCIS or court decisions which say that your wife's remarriage makes her ineligible, then she might consider re-filing another N-400 right away.
 
Update

Just an update to this thread for those that may be in a similar boat...

We sought legal guidance shortly after the events in the original post and ended up submitting a new N-400 with a G-28 and supporting documents for applying under INA section 319(a). After waiting close to a year for the application to finally be processed to the local office, my wife was granted another interview a couple of weeks ago. She passed and is scheduled to take the oath in a few days.

We very much appreciate the constructive posts we received in this thread, as it helped support our decision to pursue legal assistance, and ultimately succeed in completing the Naturalization process for my wife.
 
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