N-400 denied - less then 3 years to US citizen anniversary

T

tobeus_citizen

Registered Users (C)
Hi All,
Hoping for some advice/guidance. Here are the facts:
1) I Received GC on Jan 22 2010 (through marriage to a LPR)
2) Wife got citizenship on March 4 2010
3) Been married over 5 years
4) I submitted N-400 on Dec 13 2013 (81 days prior to March 4 2013 which would fulfill the 3 year requirements of being married to same US citizen)

PASSED the Interview which was on feb 12 2013. But was denied (feb 13 2013) reason: “on the date you filed form N-400, your spouse had been a citizen for less then 3 years.”

I consulted a lawyer and he said you can file N-400, 90 days prior to the three year requirement, but you cannot be naturalized until those three years have been completed. Therefore the basis of denial was wrong and should file a 336 for a rehearing.

What do you guys think? Was their denial correct? If not should I file 336 or just start over from scratch.

Thanks for your help. Very much appreciated.
 
The denial is correct.

The 90-day early filing period only applies to your years as a permanent resident; it doesn't apply to the 3 years of marriage or the 3 years of citizenship of your spouse. At the time of filing the application, you must have been married to the same spouse for at least 3 full years, and your spouse must have been a US citizen for at least 3 full years.

I consulted a lawyer and he said you can file N-400, 90 days prior to the three year requirement, but you cannot be naturalized until those three years have been completed. Therefore the basis of denial was wrong and should file a 336 for a rehearing.
Click to expand...
If you consulted a lawyer before filing and they advised you to go ahead and file before those full 3 years were completed, you should demand that they pay your fee to reapply.
 
Last edited by a moderator:
N 400 denial, when to reapply?

Please refer to the thread titled as above.
 
Last edited by a moderator:
Jackolantern said:
The denial is correct.

The 90-day early filing period only applies to your years as a permanent resident; it doesn't apply to the 3 years of marriage or the 3 years of citizenship of your spouse. At the time of filing the application, you must have been married to the same spouse for at least 3 full years, and your spouse must have been a US citizen for at least 3 full years.


If you consulted a lawyer before filing and they advised you to go ahead and file before those full 3 years were completed, you should demand that they pay your fee to reapply.
Click to expand...

Thanks Jackolantern. That's what I thought as well. I consulted the lawyer after the fact and he made a compelling argument to me that the denial was wrong based on the requirements specified in § Sec. 334.2 which states I can file 90 days early, and based § Sec. 319.1 (a) (3) which states:
"§ Sec. 319.1 Persons living in marital union with United States citizen spouse.

(a) Eligibility. To be eligible for naturalization under Section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:
(3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period;"
Click to expand...

nothing to do with filling but more so with naturalization and the examination date i.e. the interview. So in essence, all the USCIS had to do is postpone the interview for a couple of weeks. If this is true then I should have reason to appeal, though not sure if it's worth it at this point given that March 4th has passed and I am now passed the 3 years.

I am leaning more towards the lawyer's explanation but my research so far in this form and others supports your argument.
 
tobeus_citizen said:
So in essence, all the USCIS had to do is postpone the interview for a couple of weeks.
Click to expand...

No, the interview date doesn't matter. The USC spouse must have been a citizen for 3 full years as of the filing date.

This a common cause of confusion, and there have been many denials based on this. If you appeal you will lose. 90 days early filing only applies to your years as a permanent resident, it doesn't apply to your physical presence, length of marriage, or length of time of citizenship of your spouse.

If your spouse became a USC on or before Dec 13, 2009 you would have been OK. You would have been inside the 90-day early period for years as a permanent resident, but you would have had 3 full years of marriage and your spouse would have had 3 full years of citizenship as of your Dec 13, 2012 filing date.
 
Last edited by a moderator:
Jackolantern said:
No, the interview date doesn't matter. The USC spouse must have been a citizen for 3 full years as of the filing date.

This a common cause of confusion, and there have been many denials based on this. If you appeal you will lose. 90 days early filing only applies to your years as a permanent resident, it doesn't apply to your physical presence, length of marriage, or length of time of citizenship of your spouse.

If your spouse became a USC on or before Dec 13, 2009 you would have been OK. You would have been inside the 90-day early period for years as a permanent resident, but you would have had 3 full years of marriage and your spouse would have had 3 full years of citizenship as of your Dec 13, 2012 filing date.
Click to expand...

Thanks for your feedback, very much appreciated. I think I will probably file from scratch. Better be safe then sorry.
 
Notice how these spammers are operating? Look at post #7. It is directly copied from the first paragraph of your post #5, and then there are two spam links in the signature.
 
Jackolantern said:
Notice how these spammers are operating? Look at post #7. It is directly copied from the first paragraph of your post #5, and then there are two spam links in the signature.
Click to expand...

This is off-topic question, I didnt want to open another thread just for this, sorry
I am a DV2003 winner and I was asked to find a sponsor at my GC interview back in 2003, the day I was asked for sponsor was last day to apply DV2004 or dv2005 dont remember well, I applied for dv2004 or 2005 in case If I can't find a sponsor, anyway I found a sponsor and got my visa then entered US... Then after a year I found out I won greencard lottery again for second time..Of course I ignored second winning letter from KCC but wondering if this can (applying DV lottery again after I won) cause any issue for my USC ?
 
Last edited by a moderator:
N-400 denied yesterday

Sorry, I just joined and realized I posted in the wrong area.....can't find a "cancel post" button.
 
Last edited by a moderator:
You must log in or register to reply here.
Top