Question in regards to Naturalization - Citizenship - residency completion criteria

[coykiesaol]

Hello,

I had applied for the naturlization process in May 2010 from New Jersey. I had completed my bio-metrics / fingerprinting in NJ and moved to CA in July 2010. I recieved appt. letter of interview for New Jersey office, I updated our address with the department and after that I recieved a new appt. letter for interview for Sep 27 2010 in CA.

During the interview we took supporting documents to show that we now live in CA like rental agreement, utility bills. I went to the interview and passed the "test" But the officer that interviewed me sent me a letter stating that my application was rejected / ineligible for citizenship as I did not establish 3 month residency in CA. I have the following questions

1. I made the application after completeing a 10 months residency in the state of New Jersey in May 2010. Since before completing the whole process including interview I moved to a different state, should I have waited 3 months in CA before being interviewed? (Although the USCIS dept sent us dates for the interview). It does not seem to be logical that because of job transfer I moved out ao I can't go for interview and completing steps required.

2. They have specified that I can contest and appeal. But should I do that or should I reapply for the Naturalization when I complete 3 months? I do not want to start over the application all over again unless that is the only option.

Is there any viable option to convince the case without going for hearing to USCIS office in Los Angeles and proving the case of eligibility.

Regards

 

[frostyiphone4]

I wish I could offer you more help but I am in a situation not entirely similar to yours. I moved from Jersey to CA about 2 years back. I have a house in Jersey which is up for sale forever, but that's a different issue. I didn't change my Drivers License to CA. When I went for the interview the officer took my test and has requested me to change my license to CA and submit it to an address provided for they to move forward on my case. I'm keeping my fingers crossed.

During my interview he mentioned numerous times that I should have changed my license to CA and its a big No No to drive with a Jersey License. Good luck with your case. Sorry I couldn't be of much help, but wanted to contribute as I too moved from Jersey to CA.

 

[Jackolantern]

They should not have denied your case; they should have rescheduled your interview for a date after you completed the 3 months in CA.

You could file an appeal, since they were wrong to deny you. However, reapplying is just a little more expensive, and reapplying would be much more of a sure thing than the appeal.

 

[BigJoe5]

The USCIS Officer made a mistake in denying the application on that ground. Interpretations 334.1(h)(1) allows for transfer of an N-400 after filing if it is a convenience to the applicant and is not a burden to USCIS. Obviously it was not a burden on USCIS as you gave your change of address and they quite easily scheduled you in the new office. [You can find Interpretations on uscis.gov/Laws]

Interpretations 334.1(h)(2) makes it clear that the State Residence under 316(a) INA is a prerequiste to filing only. In addition, 8 CFR 316.5(a)(5) specifically addresses the situation where you were required merely to fufill the three months residence either at time of filing or at time of examination.

Taking the least favorable position and requiring the three months residence prior to examination in the new jurisdiction then, the officer acted in an arbitrary and capricious manner. This is especially bad in that you were re-scheduled for the interview in the new jurisdiction prematurely by USCIS error. You have an excellent case. I would contact a supervisor or the Director of the Office and request a sua sponte or Government Motion (which is free of charge as it is made by uscis). But be mindful of the N-336 deadline just in case they are unwilling to do the right thing.

But don't take my word for it, see your lawyer.

 

[Bobsmyth]

Is there any viable option to convince the case without going for hearing to USCIS office in Los Angeles and proving the case of eligibility.

Regards

In your previous post you mentioned that you were still on H1B in 2009. How is it that you applied for naturalization in 2010 (unless of course you are posting questions for different applicants).

http://forums.immigration.com/showthread.php?317128-H-1-extension-while-PERM-pending&p=2229972&highlight=#post2229972

Also, was the naturalization application filed early?

 

[Bobsmyth]

They should not have denied your case; they should have rescheduled your interview for a date after you completed the 3 months in CA.

.

There's no such requirement for USCIS to reschedule the interview of a transfered application for a date until after the applicant has completed the 3 month residency requirement.

 

[Bobsmyth]

The USCIS Officer made a mistake in denying the application on that ground. Interpretations 334.1(h)(1) allows for transfer of an N-400 after filing if it is a convenience to the applicant and is not a burden to USCIS. Obviously it was not a burden on USCIS as you gave your change of address and they quite easily scheduled you in the new office. [You can find Interpretations on uscis.gov/Laws]

Interpretations found on uscis.gov website are not necessarily up to date, and as such act only as a guide to the interpretation of past rules.

Interpretations 334.1(h)(2) makes it clear that the State Residence under 316(a) INA is a prerequiste to filing only.

Case in point, interpretation 334.1(h)(2) refers to a 6 month state residency requirement found in 316(a), a sure sign the interpretation is outdated.

In addition, 8 CFR 316.5(a)(5) specifically addresses the situation where you were required merely to fufill the three months residence either at time of filing or at time of examination.

There is no such thing as 8 CFR 316.5(a)(5). You're likely referring to 8 CFR 316.2(a)(5) which make mention about the 3 months state requirement at the time of filing or at interview if the application was filed early under 90 day rule.

 

[Jackolantern]

There's no such requirement for USCIS to reschedule the interview of a transfered application for a date until after the applicant has completed the 3 month residency requirement.

Denial for relocating during the process is not a valid action for somebody who already met the 3 month requirement in the original location when they applied.

 

[Bobsmyth]

Denial for relocating during the process is not a valid action for somebody who already met the 3 month requirement in the original location when they applied.

Understood, but you mentioned they should have rescheduled the interview for a time after 3 months of residency in CA instead of just approving the case since the OP already met the 3 month residency requirement at the time of filing application.

 

[madh4]

Moral of the story - if you are scheduled for an interview less than 3 months in new place immediately ask for re-schedule of interview to a later date.

I tend to agree with Jackolantern that re-filing is better than appeal.

 

[madh4]

deleted

 

[madh4]

I wish I could offer you more help but I am in a situation not entirely similar to yours. I moved from Jersey to CA about 2 years back. I have a house in Jersey which is up for sale forever, but that's a different issue. I didn't change my Drivers License to CA. When I went for the interview the officer took my test and has requested me to change my license to CA and submit it to an address provided for they to move forward on my case. I'm keeping my fingers crossed.

During my interview he mentioned numerous times that I should have changed my license to CA and its a big No No to drive with a Jersey License. Good luck with your case. Sorry I couldn't be of much help, but wanted to contribute as I too moved from Jersey to CA.

I feel you should attach with copy of new CA DL enough proof for meeting 3 months stay at CA at the time of interview. Do not give them any room to reject you based on the date of your DL