N-400 Filing too early

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fidanboylu

Registered Users (C)
Hi, I had an attorney file my N-400 which he mistakenly sent out 20 days earlier than the 90 day early application allowance. I have noticed the problem as I found the $680 check cashed on my bank account. I have contacted the attorney for his mistake, which he admitted and told me that it was a clerical error that somebody in his office sent it early. Anyways, he told me not to worry since he has seen this many times (ironic since it may imply they made the mistake many times in the past). Based on my own research, this is serious and the application may get denied at the interview due to filing too early. I am not sure why he keeps on telling me not to worry. He turned out to be a paralegal so I contacted the real attorney (big guy), he talked to me very briefly over the phone and told me that he will talk to USCIS and fix the mistake . Today, I have received the notice of receipt in the mail which says my application is being processed. Apparently, nobody caught the mistake at USCIS yet. . Now, my questions are:

- what would be the best course of action for me without delaying the application? ( my guess is to withdraw and reapply and kiss the $680 goodbye however the paralegal kept telling me that a withdrawal is not necessary so I am confused)

- should I not worry since the attorney said he would talk to USCIS and fix it? do they have such power over these cases? Suppose he talks to them, what is it that he would do to fix the mistake? I already have the receipt with application number and priority date 20 days early. How can he fix that???

I am totally in the dark here..thanks for any info..
 
Well good you have a legal back up. For more information I would recommend you to make a infopass appointment with USCIS through their website and get things cleared.
 
Well, they haven't done anything other than complicating the case. I wish I didn't go to them. The only reason I did that is because I will be traveling right after the application and wont be able to check mail much, otherwise it was a very straight forward clean case.
 
You should withdraw, and demand that the attorney refund you the application fee.

The only reason I did that is because I will be traveling right after the application and wont be able to check mail much,
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Traveling how much? Extensive travel during the process can jeopardize your application, especially if you've already been traveling a lot before it was submitted.
 
I am good with travel times. I have been out for around 150 days (approx 5 months) during the 2 years 9 months time which is by Jan 16th. My application was supposed to go out that day.
My intend is to withdraw as well. I am not sure about the refund part since these guys may do anything not to give a refund. I just want to know if there is anything else that can be done on by the attorney instead of withdrawal. The reason is I ask is that I hear the attorneys are more powerful when it comes to dealing with USCIS. I want to understand why they keep telling me that they will fix it.
 
fidanboylu said:
I am good with travel times. I have been out for around 150 days (approx 5 months) during the 2 years 9 months time which is by Jan 16th. My application was supposed to go out that day.
My intend is to withdraw as well. I am not sure about the refund part since these guys may do anything not to give a refund. I just want to know if there is anything else that can be done on by the attorney instead of withdrawal. The reason is I ask is that I hear the attorneys are more powerful when it comes to dealing with USCIS. I want to understand why they keep telling me that they will fix it.
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http://www.justice.gov/eoir/eoirforms/eoir44.pdf This is a link to the Complaint Form that you should fill out and show to your attorney to force him to cover the additional fees for your next N-400. IF he does not agree, then actually file it and get him blacklisted and prevented from representing anyone else before all of DHS (USCIS, ICE, and CBP) and EOIR (Immigration Court and the BIA) if he represents people in Removal Proceedings also.
 
understand outuso

Great info! thank you! I will see if I can handle it without getting that ugly :).

However, my question still remains, is there anything special that they can do to fix this?

in case they promise me again that they can fix it and tell me the things they can do, I can argue if those are viable solutions or not. And to be honest, if this can be corrected lawfully without any risks, why not do that...

thanks
 
fidanboylu said:
However, my question still remains, is there anything special that they can do to fix this?
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No. If you have a valid case, attorneys can take action to prevent or undo a denial, but here you don't have a valid case. It was filed too early, period, and all the attorneys in the world can't do anything about that.

At the time you spoke to the attorney, did he know that the check was cashed? If he didn't, maybe he meant he could "fix it" by getting USCIS to reject the whole package and send everything back including the check. That would have been possible if they didn't already deposit the check.

But once the application has been accepted for processing and the check deposited, the only possible remedy is if you are eligible for naturalization on some other basis that would make it not too early for your existing filing date. For example, say you filed 20 days too early for the 5-year rule, but suppose you're eligible for the 3-year rule which would make it not too early. Or you've served in the US military and became eligible even sooner than that. You could change the application to have it based on your other grounds for eligibility.
 
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What I would like to know is when you signed your application did you post-date it for the day that it should of been filed, and did you have the correct residence since date on your application? Did you get a receipt notice yet for your N-400? If you did then someone at the lockbox screwed up and allowed it to go through. However, it sounds as if there is issues between you and your lawyer which sound fishy because your lawyer should represent your best interest and not screw up your case. Unless you say something now, and if this is caught later down the line it is your life and naturalization that is screwed not your lawyer or USCIS. The issue that I have it does sound like there is are ethical issues if this is not first time that he done it, which implies he intends to cheat the system on administrative rules which are clear to a layperson; plus not withdrawing the application at your request, which implies he is not representing your interest.
 
dhlunar said:
What I would like to know is when you signed your application did you post-date it for the day that it should of been filed, and did you have the correct residence since date on your application? Did you get a receipt notice yet for your N-400? If you did then someone at the lockbox screwed up and allowed it to go through. However, it sounds as if there is issues between you and your lawyer which sound fishy because your lawyer should represent your best interest and not screw up your case. Unless you say something now, and if this is caught later down the line it is your life and naturalization that is screwed not your lawyer or USCIS. The issue that I have it does sound like there is are ethical issues if this is not first time that he done it, which implies he intends to cheat the system on administrative rules which are clear to a layperson; plus not withdrawing the application at your request, which implies he is not representing your interest.
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The lockbox did not screw up. This determination is outside their purview. This would be an adjudication decision and the contract clerical staff does not make any of those decision.

A lockbox only follows a checklist. Most forms merely require a signature and a fee. Only if an Interim Benefit accrues by the mere filing does that checklist get more items to check. An example is filing an I-485 for adjustment of status. For that they also check the current visa bulletin for eligibility to file because once accepted, the pending application permits the applicant to get work authorization and advance parole. An N-400 may be accepted because there is no interim benefit and the basis may be changed/corrected by the Officer at the interview as was mentioned.
 
I understand however there are cases that are rejected due to filing too early on without check being cashed so there is somehow a mechanism to check it which apparently didn't apply to my application, check has been cashed, receipt letter has been sent.

Now, are you saying that the correction can be made at the interview? what would be the basis of correction? What is the argument there?

thanks
 
fidanboylu said:
Now, are you saying that the correction can be made at the interview? what would be the basis of correction? What is the argument there?
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I think what the poster who said you might be able to change the reasoning of the N-400 is if based on the following questions you might be able to change the reasoning of filing and still be OK.

Did you file under the 5-year rule?
If it was under the five year rule have you been married to a US Citizen for at least 3 years?
Have you served in the US military at any point?
 
I file under the 3-year rule. I will be married to a US citizen for 2 years 9 months on Jan16th which is my eligibility date. I haven't served in US military.
 
I may be wrong on what I mean by eligibility. Jan 6th is my eligibility to file, april 16th is 3 year anniversary
 
I have sent out a huge email complaining about their neglegence and demanding for withdrawal and refund of $680. I also told them that i would like a fresh application be sent out.The attorney replied asking me for a copy of the receipt form and told me that he would prepare the withdrawal letter for me to sign. As with the refund and further processing, he made no comments. I have an appointment on tuesday with another paralegal.

Now my next question is I would like to check thr status of the case after the fresh submission is processed hopefully quickly. I know that USCIS has an online status check system using the receipt number. My question is, would the USCIS website give you further information such as the date of biometric appointment date and interwiev date as the appliction progresses. The reason I am asking is because I wont be checking my mailbox as i will be traveling and would like to be able to get some online information to arrange my travel dates.


Thanks
 
This was the whole reason for me to get an attorney since they receive copy of everything they would let me know of the dates. Is there any way to check or receive the notifications instead of mail.
Thanks
 
It appears that you INTENDED to file under INA section 319(a) but for that you need to have been married for a FULL 3 years and the spouse must have been a USC for a FULL three years. The only aspect that can be short by 90 days (3 months) is the greencard date. That said, INA 319(b) provides an exception IF you are accompanying a USC spouse abroad for QUALIFYING employment. These are complex issues that the lockbox clerks won't look at anymore since they lack the authority and expertise for these decisions. In addition, as was mentioned, military members and their surviving spouse and parents have even more leeway. It's complicated.

From what you describe, the attorney's office screwed up. They should eat the second fee. If they do this on a regular basis (screw up) then filing a complaint would be doing a favor to future applicants AND make the attorney and staff shape up. The BIA can issue a warning or a short suspension in such a case.
 
fidanboylu said:
I file under the 3-year rule. I will be married to a US citizen for 2 years 9 months on Jan16th which is my eligibility date. I haven't served in US military.
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If you use the 3-year rule you're not allowed to file 90 days before your 3-year wedding anniversary. You must be married to a US citizen for 3 full years to use that option. The 90-day headstart is only for the years of residence as a green card holder. So you're actually more than 3 months too early. The attorney shouldn't have taken your money at this point.
 
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Jackolantern, I just wanted to correct you so that people who read the thread don't get a false idea. 90 day allowance is both for 3- year marriage to citizen with continuos residency and 5 year continuos residency requirement. Either case you are allowed to apply 90 days early, the only constraint is that you need to be married for full 3 years when you take the oath, so if your interview falls before 3 year anniversary, they approve your citizenship but give you a later oath appointment after 3 year anniversary date so that when you become a citizen you have completed the whole 3 year in line with the law. The only reason for them to allow applications to be filed 90 days early is to make up time for the application process.

you can find the 90 day rule in detail on form M-477 http://www.uscis.gov/files/article/attachments.pdf page 5 neutralization eligibility worksheet. There is a footnote that is both attached to the 5 year and 3 year rules in the diagram.

Specifically for my case, I have been a permanent resident for 4 years now, I got my green card through employment. I already had my green card when I got married. So I am past 3 year residency rule if that is what you mean.
 
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