if you worry about your LPR status, do not apply for N400 before 5 year anniversary

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lazycis

Registered Users (C)
Just wanted to share this recent court decision with you folks. The decision resolves several interesting issues regarding N-400, 1447b and LPR revocation.

http://drop.io/ituwc6a/asset/argawal-10-9-09-pdf

"The final reason why this Court cannot construe the May 4, 2009 decisions as revoking that Agarwals' LPR status is that such a revocation would time barred. The statute setting out the power to revoke lawful permanent resident status specifies that the deadline for such an action is five years from the date of the adjustment of status."
 
The judgment proves how USCIS used poor legal arguments to justify mishandling of the case. The sad thing is that USCIS attorneys and adjudicators have nothing to loose by passing a flawed decision, but in the process can destroy the lives of people who are otherwise eligible for naturalization or LPR status.
 
hello,

Does this 5 yr rule applies to all types of PR statuses ( EB, Family etc.) ?
pl share your thoughts on this

Thanks
 
Triple Citizen said:
All GC holders can apply for naturalisation using the 5 year rule, assuming they are eligible.
Click to expand...

I think what he meant is if the 5 year statute of limitation rule (as cited in ruling) to revoke (wrongly approved) LPR status applies to applies to all types of GCs.
 
Folks, i am new tp forum..myself is getting ready to prepare N-400..Something to consifer

A good friend of mine and friend's spouse recently applied on 5 year-90 day rules....LPR 5 year anniversary date -Jan 2, 2010.
Now when i shared this case...they got worried prior to GC immigration history (in case USCIS may decide to revisit the entire immigration history). Spouse case was straight fwd , spouse did not have any prior GC immigration history.

Now practical question, they have their FP in Nov and 5 year eligibility date is Jan 2, 10.
Spouse was a derivative beneficiary of employer sponsored GC case about 5 -6 years ago.

They consider 3 options:
1) Both postpone their FP appointment until 5 year anniversary date -
OR
2) "The main GC applicant" postpones FP until GC 5 year anniversary but spouse goes as scheduled for Nov FP (given her file should be straight fwd...)
OR
3) Proceed with scheduled Nov date and manage the risk via interview scheduling (making sure that not to schedule interview before 5 year- anniversary). Risk here is that (me thinking...) USCIS may decide to deny the case and potentially revoke LPR status before 5 year anniversary date -Jan 2, 10 date ?

Experts and people with similar experience , please share your thoughts and advice. Thanks in advance....
 
Sanjekl, what is their problem? If nothing was shady or amiss with how they got their GC, what are they worried about?
 
Could someone please write what this is all about? I did go through the document but there is so much in there to understand quickly. Anyone willing to post what it is about? Thanks in advance. Also my interview is going to fall after 5 yr. GC anniversary (10/22/09). Does it mean something?
 
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lazycis said:
Just wanted to share this recent court decision with you folks. The decision resolves several interesting issues regarding N-400, 1447b and LPR revocation.

http://drop.io/ituwc6a/asset/argawal-10-9-09-pdf

"The final reason why this Court cannot construe the May 4, 2009 decisions as revoking that Agarwals' LPR status is that such a revocation would time barred. The statute setting out the power to revoke lawful permanent resident status specifies that the deadline for such an action is five years from the date of the adjustment of status."
Click to expand...

A very interesting, although disturbing case. Thanks a lot for sharing the info about it here, lazycis.

After reading the court decision, I have one question regarding the 5-year statute of limitation provision you mentioned.

Does the provision mean that, in case the original decision granting GC was erroneous, a GC revocation decision has to be made within 5 years of the GC approval date? Or is it enough (to prevent the revocation from being time barred) that a revocation process be initiated, by issuing a notice of intent to rescind, within 5 years of the GC approval?

The language in the court decision suggests the former but the quote from the law in the court decision is somewhat suggestive of the latter...
 
They only have to initiate the rescission within 5 years, not complete it.

But if the green card was obtained via fraud, there is no statute of limitations to revoke it.
 
spiderman03 said:
Could someone please write what this is all about? I did go through the document but there is so much in there to understand quickly. Anyone willing to post what it is about?
Click to expand...
Basically, USCIS was saying that their green cards should be revoked because they were granted in error due to them not paying a certain fee that they were supposed to pay. But the court struck that argument down for numerous reasons, including the fact that they waited until more than 5 years after the green card was granted before pointing out the error.
Also my interview is going to fall after 5 yr. GC anniversary (10/22/09). Does it mean something?
Click to expand...
It only means they can't revoke your green card based on an error discovered during the interview, because of the 5 year limitation. But if they found something wrong in your file before the interview (i.e. before the 5 years), they could have already initiated the rescission process.
 
Let us all read, this is the exact extract from the case that addresses the 5-year rule:

"The final reason why this Court cannot construe the May 4, 2009 decisions as revoking that Agarwals' LPR status is that such a revocation would time barred. The statute setting out the power to revoke lawful permanent resident status specifies that the deadline for such an
action is five years from the date of the adjustment ofstatus:

If, at any time within five years after the status of a person has been otherwise [*34] adjusted. . . to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction
of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person. 8 U.S.C. § 1256; see also Garcia v. Att'y General, 553 F.3d 724 (3rd Cir. 2009) (holding that any rescission of LPR status is subject to the statute of limitations); see
also Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004) (holding that rescission of LPR status in every context, other than in removal proceedings predicated on an attack on the original adjustment to LPR status, is subject to the
statute of limitations).

Since the Agarwals were initially granted LPR status in 1997, and the purported revocation took place in 2009as an incident to the adjudication of their naturalization petitions, it is well beyond the five year limit and thus not
permitted by law. For these reasons, then, this Court holds that the CIS has not proved that the Agarwals' LPR status was properly revoked, and since it has not been revoked, the Agarwals are not rendered ineligible for
naturalization on [*35] such grounds".

The way I read this that the Attorney General (and USCIS) shall notify the applicant AND take an action to revoke LPR not later than 5 years from the LPR date which I think the date of approval...for GC.

The logic of this case is that this 5 year rule may have saved the Agarwals LPR status and helped them to get citizenship. Now question is that does USCIS as a way of practice do this or this was more defensive move from USCIS when the Agarwals have started the initial case against USCIS for delaying their naturalization case. I read few N-400 denial cases in this forum (i think one was for using improper visa form or working under improper visa way before LPR applied for LPR status but we did not hear any cases where USCIS goes after LPR status)...

I think the question (if there is a challange in pre-GC history..similar to visa case stay...which was a basis for N-400 denial), should we try to push FP appointment date (even perhaps N-400 application, people like me who has not applied yet) beyond 5- year LPR date to be on a safe side....OR we should take advantage of 5 year minus 90 days rule but manage the risk via interview timing process.
 
Your A-file is usually reviewed before the interview, so trying to push things beyond 5 years by delaying the fingerprinting or interview won't necessarily work. The delay would only protect you from a post-interview "witch hunt" for discrepancies in your file, or discrepancies that USCIS first becomes aware of in the interview itself.
 
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