marriage based N400 denied. Is it worth to appeal?

I

icedteaa

Registered Users (C)
Hello, thank you for reading my post. Any comment or advice is very much appreciated!
I applied for citizenship via 3-year rule marriage and got denied. The reason they gave me was that my husband and I don't live in the same states thus we don't meet the burden of proof to establish a marital union. We got married since 2006 but had been living together since 2004. In 2009 I got accepted to an out-of-state medical school so I left and he still lives at home finishing his school. He only has 1 1/2 years to be done w/ his degree. Financial wise, he only pays in state tuition to go to his current school, which is much cheaper than the ones in where I live now. Plus, he also has a well paid, good benefit job at home and there was no guarantee that he can find a job here. So considering both school and money, it is better for him to stay at home. We both agree that after he's done w/ school, he'll move to live w/ me. It's only less than a year but we have flied to see each other for 5 times and talked on the phone everyday.
So I told the interviewer all about our situation and also gave other proofs to show that our marriage is still indeed good, like flight tickets, old rental contracts, bank statements, insurance (both health & life insurance)...but I got denied.
Now we are torn between appealing or not. I myself really want to appeal because I think we haven't done nothing wrong. We shouldn't be penalized for furthering our education and considering each other. However, we're kind of tight in money right now; we can't afford another $600. In order to have the appealing fee, we have to borrow from his sister. I don't really want to bother her if my chance of appealing successfully is slim.
So given my case, is it WORTH to appeal?
Thank you,
Icedteaa
 
sorry to hear that. As usual, you won't really know until you've tried. But unless you have additional evidence and documentation to convince USCIS, there's a good change your appeal can get denied too. Your life/marriage circumstances show unfortunately patterns which can be indicative of a "fake" marriage even though your situation is likely in earnest and genuine.

If it's any consolidation for you, you still have a legal status as LPR to fall back on. You realize that time is working in your favor: In probably less than 2 years you'll reach your 5 year GC anniversary, at that time you'll be able to apply for USC on your own merits and will not have to prove how legit your marriage is. And I assume by then your unusual circumstances of living separate will have normalized too, I guess. I'd save the $600 appeal fee for a future N-400 5 years application.
Good luck!
 
Thanks DavidSEA & Bobsmyth for replying my post!
To Bobsmyth: I have been a permanent residence for a little bit more than 3 years.
To DavidSEA: I don't really have any additional evidence besides giving a statement explaining more about my situation. I've already submitted very possible evidence to them. I gave them our 5 yrs rental contract, tax & bank statement, insurance, flight tickets, and a school statement saying that my husband has been going to the school since 2007. Maybe I can ask the school I am going to to say that I go to school here for a reason.
So now if living separately might be indicative of a "fake" marriage, am I in any chance of getting deported or taken away the permanent resident status? And, do you know what the percentage of appealing successfully is? Consequence of getting denied again?
 
If you decide to appeal, you should cite 8 CFR 319.1(b)(2)(ii)(c) and explain that your separation is involuntary due to schooling and therefore does not preclude you from naturalization.

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.
 
Last edited by a moderator:
"We shouldn't be penalized for furthering our education and considering each other." that really is a good reason to appeal. But, $600 is good money too. If I were you, I would wait till another 2 years and reapply by my own unless you really have a reason need to be America citizen eagerly.
 
The key of the appeal will be for you to show that the separation was involuntary due to schooling and that you will return to live together once schooling is done.
 
No worries re: deportation. While they can deny you USC if the IO had concerns about your marital union (where you have the burden of proof), to revoke your LPR status, they would have the burden of proof to doubt the sincerity of your marriage. Given what you already wrote below, that seems a higher hurdle.

I like Bob's reference to involuntary separation, seems worth a try in an appeal. But shouldn't the officers who decide on a denial have considered this clause already?
 
I don't know if the officers have considered the clause for my case or not. All they gave me was that we don't live together and that's why they deny us. Honestly, I'm in no hurry to become a citizen and $600 is more than we can afford right now. But I kind of want to appeal because it's very upset and disappointing to get denied when we do nothing wrong. So, have you ever heard someone with the same situation like mine won the case? And, will it be the same officer that interviewed me review my case this time?
 
It looks like you'll have a decent chance if you appeal. The interviewer apparently was unfamiliar with the regulation that Bobsmyth quoted. The appeal will be decided by somebody else.

But if $600 is too much of a burden and you're in no rush, don't bother. Just wait out the 2 years.
 
You must log in or register to reply here.
Top