N400, Passed interview then denied for early Interview!

[BigJoe5]

One of the requirements of naturlaization is to have 5 years of continuous residence as a LPR. If the applicant does not meet that requirement at interview, USCIS is within their legal power to deny such a case.

Bobsmyth,

You have a message from the horse, it is dead, stop beating it.

The conclusion you reach is unsupported and has not stood up to judicial review. While more than one of the following could easily apply the most appropriate basis to overturn such a ridiculous result is shown in bold.

The Administrative Procedures Act (APA) provides, in pertinent part:

706. Scope of review

To the extent necessary to decision and when presented, the
reviewing court shall decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The reviewing court
shall--
(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts
are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be
taken of the rule of prejudicial error.

5 USC

 

[Bobsmyth]

Bobsmyth,

You have a message from the horse, it is dead, stop beating it.

The conclusion you reach is unsupported and has not stood up to judicial review.

I'll repeat myself once : USCIS is within their legal right (discretionary powers) to deny a case at interview for not meeting the LPR requirement. Other posters (besides OP) have confirmed a similar outcome is the past. I never mentioned anything about whether such a decision would be affirmed during the appeal process. I have yet to see any evidence that suggests that adjudicating a case in such a manner is an abuse of discretionary powers. Perhaps you can provide some examples of similar cases that haven't stood up to judicial review as you claim.

 

[eastsidedude]

I'll repeat myself once : USCIS is within their legal right (discretionary powers) to deny a case at interview for not meeting the LPR requirement.

Sorry, we disagree. The law says applications can be filed 90 days before anniversary. If USCIS denied an application filed in this window that would be otherwise approvable (if filed after the anniversary), USCIS would not be following the law.

 

[Bobsmyth]

Sorry, we disagree. The law says applications can be filed 90 days before anniversary. If USCIS denied an application filed in this window that would be otherwise approvable (if filed after the anniversary), USCIS would not be following the law.

Yes the law says an application may be filed up to 90 days before entire permanent residency requirement is met, but there's nothing in the law that says these types of cases can't be adjudicated before the the anniversary date. BigJoe and Jackolantern have stated that no courts would uphold a denial based on adjudication before the applicant's LPR anniversary date in such cases since it is an abuse of USCIS discretionary powers. I have yet to see any evidence to back up their claim, yet at least 2 posters on this forum have reported that they have been denied before anniversary date eventhough they filed 90 days early.

 

[sanjoseaug20]

yet at least 2 posters on this forum have reported that they have been denied before anniversary date eventhough they filed 90 days early.

Are you counting the current case? Then please re-charge your calculator. You will need it again when OP reports back what really happened.
[ADD] 2 cases could also be classified as "errors by novice IO" rather than "overreach" or "precedent".

 

[BigJoe5]

http://www.uscis.gov/portal/site/us...nnel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD

USCIS Early Filing Calculator

The information in this part ONLY relates to your time as a permanent resident if you file under Section 319(a) and 316(a) of the INA. All other eligibility requirements MUST be met at the time of filing.

You may file Form N-400 ninety (90) calendar days before you complete your permanent residence requirement if your eligibility for naturalization is based upon being a:

Permanent resident for at least 5 years; or
Permanent resident for at least 3 years if you are married to a US citizen.

To determine your 90-day early filing date, begin by identifying your 5-year or 3-year date as a permanent resident. For example, if the date on your Permanent Resident Card says “July 4, 2006,” you meet the 5 year permanent resident requirement on “July 4, 2011.” If you have met all other eligibility requirements, you may file your completed Form N-400 90 days before “July 4, 2011.” The earliest date you may apply for naturalization would be “April 5, 2011.”

The calculator will help you verify that you file your Form N-400 with USCIS no more than 90 days prior to your permanent resident anniversary date. USCIS will deny your Form N-400 if you file your Form N-400 more than 90 days prior to your anniversary date.

http://www.uscis.gov/dateCalculator.html

Legacy INS never had to deal with the issue before. In the past, people who filed early were being given TOO much leniency by adjudicators who were forgiving early filing in contravention of the statute simply because of HUGE backlogs, at the time of the interview the applicants had met the statutory requirements.

That was a problem that was addressed in a Policy Memo, now found at AFM Appendix 72-22: http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-25488/0-0-0-32962.html

USCIS has improved processing to the point such that this new issue has arisen where an applicant might get interviewed before meeting the statutory requirements as to a full 3 or 5 yrears as an LPR, however, the applicant is also within their statutory rights by having filed in the window allowed by the same statute. The clearly erroneous outcome of denying someone who filed as allowed by the statute simply because they were interviewed early is unacceptable. Such an outcome has never been allowed to stand and therefore there is no caselaw.

There is some old caselaw on precursor statutory provisions and the savings clause but it would jiust serve to confuse people needlessly.

 

[Bobsmyth]

Filing earlier than the 90 day window is not the issue here. There's no dispute that an applicant who files earlier than the 90 day window will be denied.

The clearly erroneous outcome of denying someone who filed as allowed by the statute simply because they were interviewed early is unacceptable. Such an outcome has never been allowed to stand and therefore there is no caselaw.

The option to file up to 90 days early was likely included in the law at a time when processing times between application acceptance and interview was greater than 90 days. Now that processing times have shortened, applicants who file up to 90 days are occasionally interviewed before their anniversary date. USCIS can by virtue of discretionary powers either adjudicate the case on its merits at the time of interview or up to 120 days after interview. Nothing, and I repeat nothing currently requires USCIS to wait until the applicant has met the full LPR requirement to adjudicate such a case.
Until there's a policy memo or clear guidance in the AFM on how to deal with such cases, the occasional applicant will still be denied. I'm not saying it's right by the law, but it does and can happen.
As additional evidence of USCIS' use of discretionary powers in such cases, some posters have reported of being turned away at their interview and were rescheduled until after their anniversary date.

 

[eastsidedude]

Filing earlier than the 90 day window is not the issue here. There's no dispute that an applicant who files earlier than the 90 day window will be denied.


The option to file up to 90 days early was likely included in the law at a time when processing times between application acceptance and interview was greater than 90 days. Now that processing times have shortened, applicants who file up to 90 days are occasionally interviewed before their anniversary date. USCIS can by virtue of discretionary powers either adjudicate the case on its merits at the time of interview or up to 120 days after interview. Nothing, and I repeat nothing currently requires USCIS to wait until the applicant has met the full LPR requirement to adjudicate such a case.
Until there's a policy memo or clear guidance in the AFM on how to deal with such cases, the occasional applicant will still be denied. I'm not saying it's right by the law, but it does and can happen.
As additional evidence of USCIS' use of discretionary powers in such cases, some posters have reported of being turned away at their interview and were rescheduled until after their anniversary date.

USCIS may have discretion to reschedule the interview. But do they have discretion to deny, when the law says filing within the 90day window is allowed? I don't think so. Please provide examples (other than this one.)

 

[big-bird]

No matter what , no one should be allowed to go to the interview if there is a window for the IO to deny the applicant based on early filling.
It should be picked up at the time the application is received and if that is not the way things work right now , then it should be changed .

 

[kahuni98]

Denying an applicant because he followed the right rules they themselves set and published doesn't make sense even in the most unlawful settings. Thats just like a cop pulling you over and giving you a ticket because YOU PULLED OVER! The USCIS schedules all the appointments and tells you where to go and when and if you fail to show up they could deny you. So what are we saying here? They could be denying applicants whom they have scheduled earlier than their anniversalies so they can apply again and by so doing make money. That is corruption and misrepresentation to mention a few.

 

[Jackolantern]

No matter what , no one should be allowed to go to the interview if there is a window for the IO to deny the applicant based on early filling.
It should be picked up at the time the application is received and if that is not the way things work right now , then it should be changed .

The vast majority of the time, the application is rejected promptly if it was filed before the 90-day mark. That is standard procedure, and the too-early applications that make it to the interview stage are the few that slipped through the cracks.

Interviewing too early is another matter. Bobsmyth is 100% wrong that USCIS has the right to deny an otherwise eligible applicant for interviewing too early, but nobody will convince him unless there is an actual court case of such a denial being overturned.

 

[sanjoseaug20]

...unless there is an actual court case of such a denial being overturned.

But is there an actual precedence of denial than just forum postings?

 

[Bobsmyth]

Bobsmyth is 100% wrong that USCIS has the right to deny an otherwise eligible applicant for interviewing too early, but nobody will convince him unless there is an actual court case of such a denial being overturned.

It's easy to state someone is 100% wrong without providing actual proof of a supporting argument.
Like I said, if an applicant doesn't meet a requirement at the interview there's nothing in the law (including 90 day rule) that states that USCIS is required to wait until the applicant meets the requirement to adjudicate the case. The only thing that would convince me otherwise is a USCIS memo that clarifies the issue, not your personal interpretation of how such a case would be handled if appealed.

 

[eastsidedude]

It's easy to state someone is 100% wrong without providing actual proof of a supporting argument.
Like I said, if an applicant doesn't meet a requirement at the interview there's nothing in the law (including 90 day rule) that states that USCIS is required to wait until the applicant meets the requirement to adjudicate the case. The only thing that would convince me otherwise is a USCIS memo that clarifies the issue, not your personal interpretation of how such a case would be handled if appealed.

Basic logic, sir.

From http://www.uscis.gov/files/article/M-476.pdf:

"You may file Form N-400 ninety (90) calendar days before you complete your permanent residence requirement"

This, effectively means:

"Your application is NOT early, if it is filed 90 days (or less) before you complete your permanent residence requirement"

Therefore:

The application can't be denied for this reason.

There's no need to clarify this further.

 

[Bobsmyth]

Basic logic, sir.

From http://www.uscis.gov/files/article/M-476.pdf:

"You may file Form N-400 ninety (90) calendar days before you complete your permanent residence requirement"

This, effectively means:

"Your application is NOT early, if it is filed 90 days (or less) before you complete your permanent residence requirement"

Therefore:

The application can't be denied for this reason.

There's no need to clarify this further.

Your logic is flawed. You're comparing this to an application that is denied for filing earlier that the allowed 90 day window.
While I agree that it makes no sense for USCIS to deny an application filed within the allowed 90 day window, there is nothing in the law that says USCIS must wait until after the applicant has accumulated the statutory continuous residency as a LPR requirement to adjudicate such a case. Likewise, there is nothing in the law that says they can't deny an application that was filed within the 90 day window.

In the end, the interpretation of the 90 window and its weight in delaying adjudicating until after the applicant has met the continuous residency requirement is a difference of opinion so let's keep it at that.

 

[eastsidedude]

Your logic is flawed. You're comparing this to an application that is denied for filing earlier that the allowed 90 day window.
While I agree that it makes no sense for USCIS to deny an application filed within the allowed 90 day window, there is nothing in the law that says USCIS must wait until after the applicant has accumulated the statutory continuous residency as a LPR requirement to adjudicate such a case. Likewise, there is nothing in the law that says they can't deny an application that was filed within the 90 day window.

In the end, the interpretation of the 90 window and its weight in delaying adjudicating until after the applicant has met the continuous residency requirement is a difference of opinion so let's keep it at that.

No, it is not flawed, and pretty much everyone on this forum would tell you so. I don't understand why you can't admit you are wrong. It's perfectly ok to be right from time to time.

 

[biker]

.... there is nothing in the law that says they can't deny an application that was filed within the 90 day window.

....

Say no more.....

There is nothing in the law that says that you can't get a ticket for driving below the stated speed limit either.

You are being ridiculous my friend....though you seem to be one of the veterans around here.

 

[Bobsmyth]

There is nothing in the law that says that you can't get a ticket for driving below the stated speed limit either.

.

And how exactly does that relate to the argument I'm making? The reason you can't get a ticket for driving below the posted speed limit (unless you're driving below the minimum posted speed limit) is because there's no legal consequence for doing so.
The consequence for not meeting the mandatory continuous residency requirement at interview is a potential denial, regardless of if USCIS allows a 90 day early filing leeway. Again, I'm not saying it's right for them to do so, but some forum postings indicate they (in rare instances) can and have.

Anyways like I said, it's a difference of opinion so let's keep it at that. Telling me I'm wrong, being ridiculous, or to play by the tune of a Micheal Jackson song and "beat it" (really Jackolantern?) is not adding anything to the discussion. If anything, it only hurts your own creditability on this forum.