My interview....I can't believe it!!!
- Thread starter goro
- Start date
There is no wording in the statute that implies it to be calendar months. You're the one implying the statute means calendar months, and not 90 days.
Anyways, the OP accepts the fact he applied too early. Why are you trying to convince him otherwise by suggesting he make frivolous claims?
The issue here is why USCIS didn't immediately reject the application during initial processing instead of making the applicant got through the entire process.
There's no argument whatsoever as to whether he applied too early or not.
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So, when we are saying that absences of more than six months but less than one year may disrupt an applicant’s continuous residence unless the applicant can prove otherwise, we actually mean 180 days, not 6 calendar months, correct?
That is not a frivolous claim, from my point of view he did not apply early, he applied in time. Whatever he admits, makes no sense. He could admit or deny certain facts from his life, but not how to interpret the law.
I think you misinterpret the arguments we have.
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This horse is long since DEAD, stop beating it!
ravesky,
Stop highjacking other people's threads. If you want to rant and rave about issues, start your own thread about it. Anyone interested will debate you. All you have done here is clutter someone else's request for help and cloud their issue in nonsense. Knock it off.
ravesky,
Stop highjacking other people's threads. If you want to rant and rave about issues, start your own thread about it. Anyone interested will debate you. All you have done here is clutter someone else's request for help and cloud their issue in nonsense. Knock it off.
raevsky brings good point about 3 months and 90 days. But what I have in my mind is: first, looks like USCIS is above all laws, and second - it seems like nobody wants to deal with them; everyone knows their stupid bureaucracy. There is more chance for a wall to understand common sense rather than USCIS. Like my friend says when something like that happens: "Welcome to America"
But once again, thanks for everyone's input in this thread.
But once again, thanks for everyone's input in this thread.
Jackolantern
Registered Users (C)
I think USCIS is in the wrong for their 30 days = 1 month treatment. Immigration law doesn't define 1 month as 30 days, and in any other legal context I can think of 1 month means a calendar month. If you sign a 6-month lease, it ends 6 calendar months after it starts, not 180 days. If you get a 3-month jail sentence, it ends 3 calendar months after it starts (unless you get time reduced for good behavior etc.), not 90 days unless the months involved happen to add up to 90 days.
They take advantage of the fact that it's much simpler and cheaper to just reapply instead of trying to appeal this. So this probably has never been challenged in court.
They take advantage of the fact that it's much simpler and cheaper to just reapply instead of trying to appeal this. So this probably has never been challenged in court.
On the flip side, the 30 month physical presence requirement comes out to 900 days, and not the 913 calendar days used by USCIS.
Jackolantern
Registered Users (C)
The law says the applicant must have been physically present in the US for at least half the statutory period; it doesn't say 30 months (or 18 months for the 3-year marriage rule).
It is mathematically possible to be physically present for a total of 30 calendar months, but still fail the physical presence requirement as a result of having less than 913 days in the US. In the extreme case, by staying in the US in February every year and being abroad for nearly all of the 31-day months, it's even possible to have less than 900 days presence with a total of 30 months.
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Has been physically present in the United States for at least 30 months of the five years preceding the date of filing the application
http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11185/0-0-0-30650/0-0-0-30665.html
The resulting aggregate of 30 months is the minimum physical presence requirement for the great majority of applicants for naturalization.
http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-22380/0-0-0-22854.html
Be physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing the application
http://www.uscis.gov/portal/site/us...nnel=86bd6811264a3210VgnVCM100000b92ca60aRCRD
Jackolantern
Registered Users (C)
That's the CFR and Adjudicator's Manual, which are the interpretation and implementation of law, not the law itself. The actual law is below, INA 316:
For those residents since any day of May of any non-leap year the situation is reversed. That means they are eligible under CFR if applied on the first day when they are eligible under CFR, but not eligible under the law. That could create a real hassle for those who were already naturalized, but were not eligible under the law.
For instance, if you are resident since 5/2/2006, you become eligible under CFR if you applied on 2/1/2011 or later, but under INA only on 2/2/2011 or later. So for those for whom N-400 was received exactly on 2/1/2011 and who already naturalized, it creates a real problem, because they we naturalized contrary to the law. So, raising this issue in court is actually opening a can of warms, because the court will have to decide whether they all are citizens or not. Solution could be different for those naturalized by court versus by INS.
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Doesn't USCIS have the authority to interpret the law?
Jackolantern
Registered Users (C)
Yes, but their interpretations can be and have been overturned by the courts. It just happens that this issue is unlikely to be challenged in court, since it would almost always be cheaper and faster to reapply instead of appealing it.
The question of agency deference has been discussed at courts.
http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.
Here I think it falls under step 1 of Chevron Doctrine, not under step 2.
Other views United States vs Mead (2001) and Skidmore v Swift & Co (1944), Christensen v. Harris County
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Chevron doctrine could fall under review once again now, because of Ilya Smirnov vs. Hillary Clinton case (about the way DOS interprets the meaning of the word "random" in the law; that is DV-2012 cancellation case) and attorney Ira Kurzban agreeing to represent plaintiffs.
The Supreme Court reinforced Chevron in the Brand X case but even more influential is a provision of the Homeland Security Act of 2002 (HSA) which is now found at 6 USC Sec 522.
6 USC § 522 Statutory construction
Nothing in this chapter, any amendment made by this chapter, or in section 1103 of title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General.
(Pub. L. 107-296, title XI, Sec. 1103, Nov. 25, 2002, 116 Stat. 2274.)
However, this whole thread is getting way off base from OP's case.
6 USC § 522 Statutory construction
Nothing in this chapter, any amendment made by this chapter, or in section 1103 of title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General.
(Pub. L. 107-296, title XI, Sec. 1103, Nov. 25, 2002, 116 Stat. 2274.)
However, this whole thread is getting way off base from OP's case.
Can a lawyer file class action lawsuits on behalf of all such people? Even though most of them are assumhed to get citizenship by re-filling already, each one can get $700 back (half of that money for those who filed before a few years ago). If 10000 such people can be collected, 1/3 of all refunds as contigency fee can still mean millions of dollars for
a lawyer
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That is extremely rare case when person applied 1 or 2 days before than CFR eligibility starts. We do not have any statistics how many persons per year that is, but I do not think it is easy to find 10,000. About 30,000 N-400 applications total are denied per year. I think only a very tiny portion is denied because of that reason in that rare case.
goro JUST for you
PLEASE READY THIS AND DO REAPPLY DON'T WAIST TIME>
I was in the same situation in TN. Mine got there Nov3 instead of Nov 4th. My interview was fine I was recomande, because the IO did not explain to me what was the problem then almost 3months of waiting through my Senator then I found out that I did a mistake on the date. Contacted my IO, he said yes that is the case, and I ask him very politly what to do then I recalled him saying something like" there an issue with date, but it will be ok" during the interview. In my mind or my understanding, it was becuase I was within the 8 days to 5 years. I did not have any clue to the one day, being 91 days. Well, I ask him what to do he said: It will be denied just go head and file a new one.......Back again in the line? he said yes, and you will pay, firgerprinted,and interviewed.... I prayed and I did reapply on June 3, POD 6 and Sept 23 I did my Oath and passport in hand. JUST REAPPLY goro.
PLEASE READY THIS AND DO REAPPLY DON'T WAIST TIME>
I was in the same situation in TN. Mine got there Nov3 instead of Nov 4th. My interview was fine I was recomande, because the IO did not explain to me what was the problem then almost 3months of waiting through my Senator then I found out that I did a mistake on the date. Contacted my IO, he said yes that is the case, and I ask him very politly what to do then I recalled him saying something like" there an issue with date, but it will be ok" during the interview. In my mind or my understanding, it was becuase I was within the 8 days to 5 years. I did not have any clue to the one day, being 91 days. Well, I ask him what to do he said: It will be denied just go head and file a new one.......Back again in the line? he said yes, and you will pay, firgerprinted,and interviewed.... I prayed and I did reapply on June 3, POD 6 and Sept 23 I did my Oath and passport in hand. JUST REAPPLY goro.