N-400 eligibility - Help please!

[leynalewis]

I got my 2yr green card in 2005 thru marriage to my USC husband (married in 2003).

I filed for divorce in 2007, but I got my conditions removed (I-751) without my USC husband because of protective order, and statement from a psychologist that I had stress disorder (mental abuse). A lawyer from a non-profit organization helped me with my I-751.

When I got my 10-year green card, the lawyer told me that I was also eligible for Citizenship. However, I would have to find someone else to help because that organization was downsizing and overloaded with people who needed helps than me. I didn't think of applying at that time anyhow.

However, I'm now filling out N-400 by myself. At part 2, Information about Eligibility, I've not reached 5 years of residency yet, and I am divorced.

Should I check [B- I have been a lawful permanent resident of the United States for the last three years, and I have been married to and living with the same U.S citizen for the last three year, and my spouse has been a U.S citizen for the last three year.]

Or should I check [D-Others] - what should I explain then?

Thank you!

***********************
I'm no longer married to my USC because of the abuse. I got my I-751 removed, because of the waiver.. could this be a wavier for N-400 as well?

 

[formerf1]

I got my 2yr green card in 2005 thru marriage to my USC husband (married in 2003).

I filed for divorce in 2007, but I got my conditions removed (I-751) without my USC husband because of protective order, and statement from a psychologist that I had stress disorder (mental abuse). A lawyer from a non-profit organization helped me with my I-751.

When I got my 10-year green card, the lawyer told me that I was also eligible for Citizenship. However, I would have to find someone else to help because that organization was downsizing and overloaded with people who needed helps than me. I didn't think of applying at that time anyhow.

However, I'm now filling out N-400 by myself. At part 2, Information about Eligibility, I've not reached 5 years of residency yet, and I am divorced.

Should I check [B- I have been a lawful permanent resident of the United States for the last three years, and I have been married to and living with the same U.S citizen for the last three year, and my spouse has been a U.S citizen for the last three year.]

Or should I check [D-Others] - what should I explain then?

Thank you!

You need to be married for 3 years to USC to qualify for N400 under marriage based category. Also you have to be living with spouse until oath. I am not sure what your attorney's information was based on but please make sure you qualify before sending your application as there is a possible risk of loosing time and money

 

[Bobsmyth]

If you're no longer married to a US citizen you're not eligible under 3 year rule. If you've been a resident since 2005, the earliest you can apply is up to 90 days before you have 5 years of continuous residence as a LPR.

 

[thankful]

If you were abused by your (former) citizen spouse, then you can still take advantage of the three year rule even though you are no longer married to this guy. The law was amended a few years back to make this possible. You should check with a lawyer first (to make sure that the USCIS considers you as someone who has been abused).

 

[Bobsmyth]

If you were abused by your (former) citizen spouse, then you can still take advantage of the three year rule even though you are no longer married to this guy. The law was amended a few years back to make this possible. You should check with a lawyer first (to make sure that the USCIS considers you as someone who has been abused).

That applies specifically to applicants who have obtained LPR via VAWA process.

 

[thankful]

That applies specifically to applicants who have obtained LPR via VAWA process.

When an alien is excused from filing a joint I-751 because abuse, the treatment of her status is part of the VAWA process. As such she is eligible under the three year rule as the USCIS has stated in a policy memo.

 

[Bobsmyth]

When an alien is excused from filing a joint I-751 because abuse, the treatment of her status is part of the VAWA process. As such she is eligible under the three year rule as the USCIS has stated in a policy memo.

So you're saying an applicant who removed conditions based on being a being a battered spouse does not need to meet the marriage condition for 3 year rule although they didn't file GC via I-360 VAWA?

The wording of INA 319 suggest that it only applies to those who obtained their LPR status via I-360 process:

http://www.immigrationlinks.com/news/INS%20Memo%20on%20Sec.%20319(a)%20benefits.pdf

 

[thankful]

So you're saying an applicant who removed conditions based on being a being a battered spouse does not need to meet the marriage condition for 3 year rule although they didn't file GC via I-360 VAWA?

The wording of INA 319 suggest that it only applies to those who obtained their LPR status via I-360 process:

http://www.immigrationlinks.com/news/INS%20Memo%20on%20Sec.%20319(a)%20benefits.pdf

That is exactly what I am saying. For confirmation see the attached USCIS memo.

 

[Bobsmyth]

That is exactly what I am saying. For confirmation see the attached USCIS memo.

Looks like they specifically added the I-751 waiver class to 319 with that 2005 memo as the 2002 memo did not include it. Interestingly enough, the USCIS ombudsman suggested that USCIS add it to the wording:

http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_10_INA_319_(a)_Naturalization_10-06-04.pdf

In that case the OP is eligible to apply under 3 year rule as she had the conditions removed based on abuse.

 

[Bobsmyth]

.

Should I check [B- I have been a lawful permanent resident of the United States for the last three years, and I have been married to and living with the same U.S citizen for the last three year, and my spouse has been a U.S citizen for the last three year.]

You would select B and add a cover letter with application indicating that you are filing based 3 years of continuous residence as a LPR and that you had conditions removed based on spousal abuse. Include a copy of the USCIS memo as supporting proof to your claim.

 

[thankful]

Looks like they specifically added the I-751 waiver class to 319 with that 2005 memo as the 2002 memo did not include it. Interestingly enough, the USCIS ombudsman suggested that USCIS add it to the wording:

http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_10_INA_319_(a)_Naturalization_10-06-04.pdf

In that case the OP is eligible to apply under 3 year rule as she had the conditions removed based on abuse.

Congress intended this result when they changed the law in 2000, but it took the USCIS five years to get the message (after a number of denied applicants told the USCIS that they were filing lawsuits to obtain their statutory benefit).