Jackolantern
Registered Users (C)
DMVs have long been a "paragon of good customer service and intellect" compared to INS and USCIS.
N-400 denied - seemingly due to USCIS miscalculating time out of the country - input welcomed
- Thread starter seattleite909
- Start date
DMVs have long been a "paragon of good customer service and intellect" compared to INS and USCIS.
Sorry to hear that.
Before you appeal, consider reapplying, I believe the time line for new application and appeal is the same. I can't believe its even the same cost but without lawyers fees. There was a similar case for someone who appealed and was denied for no reason other than (I cant change the decision about how the dates where calculated.
I believe you will win if you decide to vigorously fight with appeals, law suites, etc.. but thats just too much eneregy, time, effort, etc. Accuring the additional 20-30 days of stay and applying again may be the most peacful option. its not fair, but thats why people settle out of court for enormous money without doing anything wrong
Before you appeal, consider reapplying, I believe the time line for new application and appeal is the same. I can't believe its even the same cost but without lawyers fees. There was a similar case for someone who appealed and was denied for no reason other than (I cant change the decision about how the dates where calculated.
I believe you will win if you decide to vigorously fight with appeals, law suites, etc.. but thats just too much eneregy, time, effort, etc. Accuring the additional 20-30 days of stay and applying again may be the most peacful option. its not fair, but thats why people settle out of court for enormous money without doing anything wrong
seattleite909
Registered Users (C)
I've thought quite carefully about the reapply vs appeal discussion. Given the pattern of my travel back in 2006 (i.e. 5 years ago) it's actually going to take until early next year before I'm totally in the clear with the "USCIS" calculation method - so assuming the lawyer fees are not astronomical then if successful I'd be a citizen sooner and the only cost delta would be the lawyer fees (given I'd have to pay a new application fee in any event). So all in all, and being keen on the principles here I intend to appeal. If the appeal is denied I might give up at that point (although intellectually I still want to get to the bottom of this) but I just don't really want to wait a year to start the process again.
seattleite909
Registered Users (C)
For anyone who is interested, I went to see a lawyer last week which was informative if not particularly useful for my case.
The lawyer told me that what was written in the USCIS guide about partial days was 'meaningless'. He'd not had direct experience with a case so close but spoke to a colleague who had learned the way this was handled in close cases at an immigration conference. The method used apparently was based on whether you are physically present in the US for 50% or more of a particular day. I re-did the calculation on my trips as I still have a record of flight arrival/departure times, and this doesn't buy me enough time. The lawyer is checking to see if he can find any other precedent cases or details on USCIS operating procedure. If he does not, then there is no point appealing at this stage as there would be nothing to build a case on...so I will re-apply in Jan 2012 by which time I'll have 'gained' another 40 days or so.
So key learnings have been:
*USCIS guidance in the Naturalization brochure is meaningless.
*People who have been approved based on counting both arrival & departure days as in the US have probably been lucky.
*Apparently the way they resolve this in closes cases is to count a day where you've been in the US for 50% of the time or more as 'in'.
Overall highly irritating, considering that I'd based my application timing on the guidance in their brochure. If this guidance had been clear then I wouldn't have taken a 35 day trip last year and wouldn't be in this situation. Still, you live and learn - it's been educational!
The lawyer told me that what was written in the USCIS guide about partial days was 'meaningless'. He'd not had direct experience with a case so close but spoke to a colleague who had learned the way this was handled in close cases at an immigration conference. The method used apparently was based on whether you are physically present in the US for 50% or more of a particular day. I re-did the calculation on my trips as I still have a record of flight arrival/departure times, and this doesn't buy me enough time. The lawyer is checking to see if he can find any other precedent cases or details on USCIS operating procedure. If he does not, then there is no point appealing at this stage as there would be nothing to build a case on...so I will re-apply in Jan 2012 by which time I'll have 'gained' another 40 days or so.
So key learnings have been:
*USCIS guidance in the Naturalization brochure is meaningless.
*People who have been approved based on counting both arrival & departure days as in the US have probably been lucky.
*Apparently the way they resolve this in closes cases is to count a day where you've been in the US for 50% of the time or more as 'in'.
Overall highly irritating, considering that I'd based my application timing on the guidance in their brochure. If this guidance had been clear then I wouldn't have taken a 35 day trip last year and wouldn't be in this situation. Still, you live and learn - it's been educational!
That means that either the applicant or USCIS would need to have access to time stamped entry/exit dates in order to be able to use that method of calculation. Since passport entry/exit dates aren't time stamped, I wonder how they expect an applicant to conform to such (time sensitive) standards.
It is surprising that this is the way to handle this (50%) of the time. And, I would be surprised if they really denied you based on this calculation. This means they would have got your exact dept/arrival data from CBP and put it in a calculator that takes Date and Time in. As I posted before, the IO told me they would put travel dates in a date calculator to calculate the times. The only question in my mind was whether their date calculator does "Return - Departure" or "Return - Departure + 1", the calculator could be more sophisticated to accept also time, which they default at 12 A.M. or 12 P.M but thats a stretch.
I really dont think you were denied based on being 50% of the day logic. It may be the way to resolve any dispute in court, but I doubt the IO officer did that. One thing you may want to check again is if you had any flight delays. If you were short a day or two, you may be lucky if a couple of flights were delayed few hours to buy you the additional couple of days.
I wonder if your case would have been different if you used passport arrival stamps in Europe or foriegn countries as your exit days. This would have given you another 40 days on your app. Most people do that, i think very few people has exact flight records, most people I know use passport stamps as they way to detirmine entry/exit from the US.
I really dont think you were denied based on being 50% of the day logic. It may be the way to resolve any dispute in court, but I doubt the IO officer did that. One thing you may want to check again is if you had any flight delays. If you were short a day or two, you may be lucky if a couple of flights were delayed few hours to buy you the additional couple of days.
I wonder if your case would have been different if you used passport arrival stamps in Europe or foriegn countries as your exit days. This would have given you another 40 days on your app. Most people do that, i think very few people has exact flight records, most people I know use passport stamps as they way to detirmine entry/exit from the US.
Incognegro
Registered Users (C)
Thanks for the feedback seattle, wish you the best of luck.
seattleite909
Registered Users (C)
Just to clarify here...
For my calculation, they definitely did not do the calculation based on exact timings. The way they did the calculation included only one of the entry/exit days as 'IN'. That just seems to be the way their calculation system works.
The lawyer's point was that if an appeal was to be made, we'd have to have a plan of how to rebut their decision. It wasn't an option to rely on what was written in the brochure - and apparently their procedure in close cases is based on this 50% thing - and in my case, when I did the analysis I only had about 5 out of 36 trips where I had left post 12pm and arrived prior to 12pm - which didn't help me get below the magic number...and given burden of proof on me there would be no point in appealing. In the case of someone who could prove it this way they'd expect them to have all the documentation to prove it...and the lawyer's opinion there was anyone who didn't have all the proof would be out of luck.
Anyway- onwards and upwards for Jan!
For my calculation, they definitely did not do the calculation based on exact timings. The way they did the calculation included only one of the entry/exit days as 'IN'. That just seems to be the way their calculation system works.
The lawyer's point was that if an appeal was to be made, we'd have to have a plan of how to rebut their decision. It wasn't an option to rely on what was written in the brochure - and apparently their procedure in close cases is based on this 50% thing - and in my case, when I did the analysis I only had about 5 out of 36 trips where I had left post 12pm and arrived prior to 12pm - which didn't help me get below the magic number...and given burden of proof on me there would be no point in appealing. In the case of someone who could prove it this way they'd expect them to have all the documentation to prove it...and the lawyer's opinion there was anyone who didn't have all the proof would be out of luck.
Anyway- onwards and upwards for Jan!
Jackolantern
Registered Users (C)
I wonder if that method is an official procedure that has been communicated throughout USCIS or otherwise published to the world, or it's only done by the particular officer (and his/her specific department) who was in that conference, with no USCIS-wide consistent procedure.
If there is no law or precedent forcing the calculation to be done one way or the other, and there is no consistent USCIS policy, it's quite likely the court would hold them to follow what they published in the guide (after all, if they've approved half of the other similar applicants using the published method, what's their basis for asserting your denial now?), and force them to change the publication if they don't want to follow that method going forward.
But it's unlikely that something like this has ever been to court or will end up in court, because it's almost always easier and cheaper to just wait a while and reapply. For this to go to court, the person's travel pattern would need to be such that they'd have to wait a couple of years to gain enough physical presence to be free and clear of such borderline calculations so court might be faster for them. And/or a lawyer wants to take it to court pro bono to make a reputation for him/herself by winning a precedent-setting case.
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seattleite909
Registered Users (C)
Exactly! For me, even if I could ultimately possibly win on this - there is absolutely no time advantage, or it would be minimal - and this lawyer had no interest in doing the case pro bono!
Given the inconsistency of date calculations and that you have to wait till Jan, I would just apply again now and try my luck. If you apply now, you will get an answer almost certainly before the end of the year. It kind of $600 lottery, may work may not, but you only have the application fee to loose. You would probably loose it anyway if you decide to appeal.
sanjoseaug20
Registered Users (C)
Pro bono ... you are a tuff dude !!
Its waste of time fighting with them. Once they come to a decision they will not listen. My case was rejected as the officer told I was out for 915 days where as my calculation showed its only 913. I applied for a petition and paid $600. In the review the officer did not even listen to me and told that my case can not be approved as I was away for more than 50% of time. Its waste to fight CIS. Just follow the rules
Here is what the Adjudicators Manual says on this
"When you count, give the applicant credit for each day in the United States, including full credit for the day the applicant left the United States and the day the applicant returned to the United States. See A Guide to Naturalization"
(I am a new user so am not permitted to post the link, but it can easily be located by googling "when you count, give the applicant credit for each day" )
It therefore appears that it was an error on the adjudicator's part to deny the OP's application.
"When you count, give the applicant credit for each day in the United States, including full credit for the day the applicant left the United States and the day the applicant returned to the United States. See A Guide to Naturalization"
(I am a new user so am not permitted to post the link, but it can easily be located by googling "when you count, give the applicant credit for each day" )
It therefore appears that it was an error on the adjudicator's part to deny the OP's application.
Rajiv Khanna says completely the opposite, what is downloaded from uscis web site should have significance. And in fact he seems to be right, and your lawyer was just telling bs.
I wonder if that is really true, or just something your lawyer made up.
Reconciling the Guide with the issue Bobsymth pointed out
Posts by Bobsymith has a point in that counting partial days as full days may appear to conflict with the law, which seems to intend “half of that time.”
But the exact language in 8 CFR is that “periods that total at least half of that time.” Given that, counting partial days as full days (as in Adjudicator’s Manual, or the Guide) can be reconciled with 8 CFR if one interprets it as follows:
• The unit of time is days (which seems logical, given that hours and minutes of arrivals and departures are hard to keep track of)
• A stay in the US is marked by the arrival and departure dates
• Summing up those periods, they must total at least half of the statutory period (which is 913 days in case of 5-year period)
Posts by Bobsymith has a point in that counting partial days as full days may appear to conflict with the law, which seems to intend “half of that time.”
But the exact language in 8 CFR is that “periods that total at least half of that time.” Given that, counting partial days as full days (as in Adjudicator’s Manual, or the Guide) can be reconciled with 8 CFR if one interprets it as follows:
• The unit of time is days (which seems logical, given that hours and minutes of arrivals and departures are hard to keep track of)
• A stay in the US is marked by the arrival and departure dates
• Summing up those periods, they must total at least half of the statutory period (which is 913 days in case of 5-year period)
In my case, I did count both my entry and departure days as days in the US. The IO did not do any correction on that when going over my form. Even if he would have, I had more than enough days in the US. However, looking at all the responses in this thread, it seems like if you have a close case, it is better to be on the safe side and count only one day (i.e., either the departure day or the entry day) as a day in the US. This will save you a lot of headaches and money later on.
Of course it is better to stay on the safe side, but if you believed in the manual (like I did) and/or have other pressing constraints that limit your ability to come back and stay in the US. If I could come and stay more many many more days, I would, but it simply was very difficult.
I am clearly having some editing problems today. I am trying again:
Of course it is better to stay on the safe side, but if you believed in the manual (like I did) and/or had other pressing constraints that limit your ability to come back and stay in the US, and you found out about this issue only after you stayed all those days abroad (when it was too late to reverse the situation), then you would be interested in the precise answer. Otherwise, you should have no interest in the issue. Nevertheless, thanks for the response anyway, and your recommendation is definitely a good one: Do not stay outside the US too long (IF YOU CAN) if you are planning a naturalization application.
Of course it is better to stay on the safe side, but if you believed in the manual (like I did) and/or had other pressing constraints that limit your ability to come back and stay in the US, and you found out about this issue only after you stayed all those days abroad (when it was too late to reverse the situation), then you would be interested in the precise answer. Otherwise, you should have no interest in the issue. Nevertheless, thanks for the response anyway, and your recommendation is definitely a good one: Do not stay outside the US too long (IF YOU CAN) if you are planning a naturalization application.