Interview results and possibility of a denial

S

shokaido

Registered Users (C)
My interview was scheduled on 09/21/2012, went into the USCIS office 20 mins before appointment. I waited ~40 min after the appointment time passed and was interviewed by an officer. The officer was polite. I was asked almost all questions on my submitted N-400 and then wrote/read English sentence. After answering 6 civic questions correctly, I was told I passed the interview.

Then here it goes the surprise. The officer told me he had to offer me the opportunity to voluntarily withdraw my N-400 or it would be denied. It's due to the fact I filed the application too early after I relocated to the new state and the jurisdiction.

Here is my timeline:

5-year continuous residency: 08/17/2012
Relocated to the new state: 04/09/2012
N-400 receipt date: 05/25/2012
Fingerprint notice date: 06/07/2012
Fingerprints done: 06/29/2012
Interview date: 09/21/2012

I filed N-400 early based on the 90-day early application rule. I figured my 90-day wait time from moving to a new jurisdiction is also counted concurrently along with the 90-day early filing time. However, it looks like I am expecting a denial in my case.

Any thoughts about the odds of me getting a denial?
 
Then here it goes the surprise. The officer told me he had to offer me the opportunity to voluntarily withdraw my N-400 or it would be denied. It's due to the fact I filed the application too early after I relocated to the new state and the jurisdiction.
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You mean due to the allegation that you filed too early. It's not a fact!

You are correct; if you apply within the 90-day early period, you don't have to satisfy the 3-month district residence requirement when you apply, as long as you will satisfy it by your 5-year anniversary, which you did.

Your case will be reviewed by a supervisor, and the supervisor should have enough knowledge of that early-filing provision to approve your case (or if they deny it, it would be for another reason). Of course, that's assuming you didn't withdraw.
 
Jackolantern said:
You mean due to the allegation that you filed too early. It's not a fact!

You are correct; if you apply within the 90-day early period, you don't have to satisfy the 3-month district residence requirement when you apply, as long as you will satisfy it by your 5-year anniversary, which you did.
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You're right. I was alleged filing too early. I remember I checked the rules of early-filing and the 90-day wait time after moving when I filed my case. Since it's been 4 months now, during the interview I totally forgot I had the protection from that early-filing provision and so failed to point this out to the officer.

Jackolantern said:
Your case will be reviewed by a supervisor, and the supervisor should have enough knowledge of that early-filing provision to approve your case (or if they deny it, it would be for another reason). Of course, that's assuming you didn't withdraw.
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I didn't withdraw. Hope my case will be reviewed by an experienced supervisor and I'll wait to see how it is adjudicated. As far as I can see, I don't think there is anything else will cause a denial of my application, besides this early-filing allegation.
 
Received Denial Notice

Just to update for those with interest.

Received denial notice yesterday from the field office. Reason for denial is simple: filing the application too early. USCIS quoted the 3-month wait-time as the basis for denial and conveniently left out the 90-day early filing rule. USCIS also wholeheartedly attached an appeal form for a filing fee of $650.

What are my options now? Going for an appeal would cost me $650 and probably as much time as or more than I filing a new case. Is there any other option for me to let USCIS take a second look at my denied case?
 
shokaido said:
Just to update for those with interest.

Received denial notice yesterday from the field office. Reason for denial is simple: filing the application too early. USCIS quoted the 3-month wait-time as the basis for denial and conveniently left out the 90-day early filing rule. USCIS also wholeheartedly attached an appeal form for a filing fee of $650.

What are my options now? Going for an appeal would cost me $650 and probably as much time as or more than I filing a new case. Is there any other option for me to let USCIS take a second look at my denied case?
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The appeal process is usually lengthy; moreover, it's a good idea to have an attorney accompany you to the appeal interview. In the interest of saving time and money, I strongly suggest reapplying from scratch.
 
I would appeal. The initial administrative appeals usually don't take long to be heard, and this should be an easy win. Quote the section below from the Adjudicator's Field Manual in your appeal letter. Also try to find any court cases that say the same thing.

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-22380/0-0-0-22711.html
(e) Applications Filed under Section 334(a) of the Act .

Section 334(a) of the Act allows an applicant to file his or her application 3 months before he or she has completed the continuous residence time period. The applicant must still establish that he or she has resided for 3 months immediately preceding the filing of the application in the State or Service District having jurisdiction over the applicant’s actual place of residence. However, in a case where the applicant files the application early pursuant to section 334(a), and the 3 month period to establish jurisdiction falls within the required period of continuous residence, the determination as to jurisdiction will be based on the applicant’s actual place of residence 3 months immediately before the examination on the application.
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Jackolantern said:
I would appeal. The initial administrative appeals usually don't take long to be heard, and this should be an easy win. Quote the section below from the Adjudicator's Field Manual in your appeal letter. Also try to find any court cases that say the same thing.

http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-22380/0-0-0-22711.html
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The AFM does contain some legal errors and it seems possible to me that this is one of them. The 3 months state/district residency requirement of INA 316(a)(1) is a requirement that needs to be satisfied at the moment of filing N-400. Whether that requirement has been met should depend on the conditions at the time of filing, not what happens thereafter. It seems rather illogical to me to think that in this case satisfying or failing the 3 months state/district residency requirement would be determined by how quickly the USCIS conducts a naturalization interview. But, given the language used in the AFM, it would certainly be very interesting to see how the appeal goes if the OP decides to file one.
 
baikal3 said:
The AFM does contain some legal errors and it seems possible to me that this is one of them. The 3 months state/district residency requirement of INA 316(a)(1) is a requirement that needs to be satisfied at the moment of filing N-400. Whether that requirement has been met should depend on the conditions at the time of filing, not what happens thereafter. It seems rather illogical to me to think that in this case satisfying or failing the 3 months state/district residency requirement would be determined by how quickly the USCIS conducts a naturalization interview. But, given the language used in the AFM, it would certainly be very interesting to see how the appeal goes if the OP decides to file one.
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For early-filing applications, I believe the USCIS would conduct interview after the applicant is eligible for naturalization, which is 90-day after the filing if the applicant takes advantage of the 90-day early filing rule. I can't imagine at certain period of time, all early-filing applicants are rejected at interview just because USCIS has low case load and schedule interviews within the 90-day window. So in this early-filing case, the district residency requirement is met concurrently when the interview is conducted. I think the rule is logical.

Nevertheless, I will start a clean-sheet application instead of filing an appeal. I did some search and have seen denied cases similar to mine where the applicants actually challenged the officers during interview and still got denied. In those cases, the applicants were told there was district rules about the 90-day residence requirement overiding the CFR regulation. I am not sure whether this is legal or not. So play safe, I'll go for a new application.

Thanks for your inputs, everyone.
 
shokaido said:
For early-filing applications, I believe the USCIS would conduct interview after the applicant is eligible for naturalization, which is 90-day after the filing if the applicant takes advantage of the 90-day early filing rule.
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Actually, no. Lots of interviews for 90-day early filers are conducted before the five year GC anniversary of such applicants, and lots of such cases are approved. The only rule in such situations is that the naturalization oath cannot be conducted until after the five year GC anniversary. So if this kind of a situation arises, the IO simply postpones the naturalization oath.

The interesting thing is that there is not simply the Adjudicator's Field Manual passage quoted by Jackolantern but specific language in 8CFR 316.2(a)(5) saying that your case should have been approved:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-30960/0-0-0-30975.html


5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, has resided, as defined under § 316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence; (Amended effective 11/28/2011, 76 FR 53764)


It is possible, as you say, that USCIS or some specific District Offices concluded that this language of 8CFR directly contradicts or is unsupported by the relevant provisions of INA. But if that is the case, the USCIS has an obligation to do something about this, such as clarify the AFM language, issue a policy memo or request an 8CFR correction.

What specific legal provision, 8CFR316 or INA316, did your denial notice quote as the reason for denying your application?

I think that even if you re-file a new N-400 rather than appeal the denial, you should still write to the CIS Ombudsman and request that they look into the situation regarding the AFM and the 8CFR 316.2(a)(5) language.
 
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I hope there is a published court case that gives a clear interpretation of this, one way or the other. I haven't been able to find one myself.
 
Sec. 316. [8 u.s.c. 1427]

"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."

Please note the phrase " immediately preceding the date of filing his application for naturalization" i.e the date N-400 was received by USCIS service center and given a PD. Based on the language in in Sec. 316(a)1 the residence within the State or District has to be 3 months and not less at the date of filing of the N-400. He may challenge the USCIS denial if the district of the service in the USA is the same,but that would be difficult.

I would just re-apply the law is crystal clear USCIS AFM changes all the time, besides it is for internal use only and is likely to have errors.

Hope that helps. I am not a lawyer this is only my opinion not legal advise.
 
Per the language of Sec 316 (a) 1: the continuous residence referred to; is continuous residence status as an LPR for 3 years or 5 years as the case maybe. Hence the applicant can't have a break in continuous residence status as an LPR (out of USA for > 1 year or > 6 months in some cases where the LPR can't prove that continuous residence wasn't broken), Physical presence of < 30 months or < 3 months residence in current State/District of residence on the date of filing the N-400

"Sec. 334. [8 U.S.C. 1445]

(a) An applicant for naturalization shall make and file with the Attorney General a sworn application in writing, signed by the applicant in the applicant's own handwriting, if physically able to write, which application shall be on a form prescribed by the Attorney General and shall include averments of all facts which in the opinion of the Attorney General may be material to the applicant's naturalization, and required to be proved under this title. In the case of an applicant subject to a requirement of continuous residence under section 316(a) or 319(a) , the application for naturalization may be filed up to 3 months before the date the applicant would first otherwise meet such continuous residence requirement."

Conclusion; the continuous residence in Sec 316 (a) 1 and Sec 334 (a) are one and the same continuous residence status as an LPR. Subject can file up to 3 months earlier than the 3 years or 5 years continuous residence requirement but must meet 3 months in state residence or physical presence requirement. Also the continuous residence status must be maintained up until the oath is taken.
 
baikal3 said:
Actually, no. Lots of interviews for 90-day early filers are conducted before the five year GC anniversary of such applicants, and lots of such cases are approved. The only rule in such situations is that the naturalization oath cannot be conducted until after the five year GC anniversary. So if this kind of a situation arises, the IO simply postpones the naturalization oath.

The interesting thing is that there is not simply the Adjudicator's Field Manual passage quoted by Jackolantern but specific language in 8CFR 316.2(a)(5) saying that your case should have been approved:

http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-30960/0-0-0-30975.html


5) Immediately preceding the filing of an application, or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act and the three month period falls within the required period of residence under Section 316(a) or 319(a) of the Act, has resided, as defined under § 316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence; (Amended effective 11/28/2011, 76 FR 53764)


It is possible, as you say, that USCIS or some specific District Offices concluded that this language of 8CFR directly contradicts or is unsupported by the relevant provisions of INA. But if that is the case, the USCIS has an obligation to do something about this, such as clarify the AFM language, issue a policy memo or request an 8CFR correction.

What specific legal provision, 8CFR316 or INA316, did your denial notice quote as the reason for denying your application?

I think that even if you re-file a new N-400 rather than appeal the denial, you should still write to the CIS Ombudsman and request that they look into the situation regarding the AFM and the 8CFR 316.2(a)(5) language.
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"as defined under § 316.5, for at least three months in a State or Service district having jurisdiction over the applicant's actual place of residence;" is to determine residence ONLY § Sec. 316.5 Residence in the United States. This section 316.5 only defines and determines the applicant's place of residence. Once the determination of residence has been made the applicant still has to meet the requirement of 3 months in the state at date of filing the N-400.

Hence there is no confusion in 8CFR 316.2(a)(5) language: Conclusion
1) Applicant can file early( up to 3 months) pursuant to Sec 334 (a)
2) The 3 months early filing of the N-400 must fall within the continuous residence status of LPR for Sec 316 (a) or Sec 319 (a)
3) § Sec. 316.5 Residence in the United States: ONLY determines the place of residence which has to be satisfied in Sec 316 (a) or Sec 319 (a).

Conclusion no contradictions in the law but AFM is in error. Applicant should just reapply don't use AFM as legal weight only 8 CFR and INA hold weight here and both are in line with each other.
 
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shokaido said:
My interview was scheduled on 09/21/2012, went into the USCIS office 20 mins before appointment. I waited ~40 min after the appointment time passed and was interviewed by an officer. The officer was polite. I was asked almost all questions on my submitted N-400 and then wrote/read English sentence. After answering 6 civic questions correctly, I was told I passed the interview.

Then here it goes the surprise. The officer told me he had to offer me the opportunity to voluntarily withdraw my N-400 or it would be denied. It's due to the fact I filed the application too early after I relocated to the new state and the jurisdiction.

Here is my timeline:

5-year continuous residency: 08/17/2012
Relocated to the new state: 04/09/2012
N-400 receipt date: 05/25/2012
Fingerprint notice date: 06/07/2012
Fingerprints done: 06/29/2012
Interview date: 09/21/2012

I filed N-400 early based on the 90-day early application rule. I figured my 90-day wait time from moving to a new jurisdiction is also counted concurrently along with the 90-day early filing time. However, it looks like I am expecting a denial in my case.

Any thoughts about the odds of me getting a denial?
Click to expand...

You have said it correctly, you filed early and moved to a new state and new jurisdiction. If the jurisdiction was the same you could have appealed and could have won your appeal. The § Sec. 316.5 Residence in the United States, 8CFR 316.2(a)(5), Sec 334 (a), Sec 316 (a) and Sec 319 (a) are pretty clear and no ambiguity exists in any of them. USCIS interpretation maybe ambiguous but not any of the Sections quoted.

Just re-apply as you've already decided and save yourself time and money.
 
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NCH754 said:
You have said it correctly, you filed early and moved to a new state and new jurisdiction. If the jurisdiction was the same you could have appealed and could have won your appeal. The § Sec. 316.5 Residence in the United States, 8CFR 316.2(a)(5), Sec 334 (a), Sec 316 (a) and Sec 319 (a) are pretty clear and no ambiguity exists in any of them. USCIS interpretation maybe ambiguous but not any of the Sections quoted.

Just re-apply as you've already decided and save yourself time and money.
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Okay I stand corrected, I was paying attention to the "immediately preceding the filing of an application" and completely did not focus on the "or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act ".

Based on OP dates it was more than 3 months in the state at the time of the examination on the application based on Section 334 (a). USCIS got this one wrong. I now concur with other forum members that the OP should not have been denied since he/she met 8CFR 316.2(a)(5) to the letter of the law. But I would not waste money appealing.
 
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NCH754 said:
You have said it correctly, you filed early and moved to a new state and new jurisdiction. If the jurisdiction was the same you could have appealed and could have won your appeal. The § Sec. 316.5 Residence in the United States, 8CFR 316.2(a)(5), Sec 334 (a), Sec 316 (a) and Sec 319 (a) are pretty clear and no ambiguity exists in any of them. USCIS interpretation maybe ambiguous but not any of the Sections quoted.

Just re-apply as you've already decided and save yourself time and money.
Click to expand...

Okay I stand corrected, I was paying attention to the "immediately preceding the filing of an application" and completely did not focus on the "or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act ".

Based on OP dates it was more than 3 months in the at the time of the examination on the application based on Section 334 (a). USCIS got this one wrong. I now concur OP should not have been denied since he met 8CFR 316.2(a)(5) to the letter of the law. But I would not waste money appealing.
 
baikal3 said:
What specific legal provision, 8CFR316 or INA316, did your denial notice quote as the reason for denying your application?

I think that even if you re-file a new N-400 rather than appeal the denial, you should still write to the CIS Ombudsman and request that they look into the situation regarding the AFM and the 8CFR 316.2(a)(5) language.
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The notice quoted INA 316(a)(1) and 334(a) as grounds for denial.

As you suggest, I'll try to write to the Ombudsman about the contradiction between the language used in case adjudication and 8CFR 316.2(a)(5).
 
NCH754 said:
Okay I stand corrected, I was paying attention to the "immediately preceding the filing of an application" and completely did not focus on the "or immediately preceding the examination on the application if the application was filed early pursuant to Section 334(a) of the Act ".

Based on OP dates it was more than 3 months in the at the time of the examination on the application based on Section 334 (a). USCIS got this one wrong. I now concur OP should not have been denied since he met 8CFR 316.2(a)(5) to the letter of the law. But I would not waste money appealing.
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This is what I had in mind when filing N-400, but totally forgot this regulation during the interview. After filing the application, I simply had too much other stuff to do and forgot what I did at the beginning. However, even I had remembered and used this regulation during review, I am not sure it would have changed my situation. I've seen other people posting cases where interview officers totally ignored this regulation.
 
It drives me up the damn wall that when CIS screws up (and I want to use a stronger word here, but I don't know the censorship rules), you have to pay MORE to appeal than to either reapply or go away and never show your face to them again. What twats. The ombudsman ought to be contacted for this. Is it a tactic, or is it because an appeal requires more investigation?
 
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