Should I withdraw my N-400 or Not?

[rudinator1]

Hello guys,
I need some opinions or advice from guru's or expert.

I came to US in 1996 with B-1 visa. I changed my status from B-1 to F-1 in December 1996. My sister was the one who sponsored me. I went to school from 1996-1999 (high school) and Sept 1999 - June 2002 (college) with my F-1 Visa. I got married with my wife ,whose green card holder, in 2000 then filed I-130 or I-131.

I went back to my home country for 50 days in April 2002 because of death in my family. Since I adjusted my status to F-1 in US, My F-1 visa will be expired if I leave US. My international student counselor gave me an extention on my I-20 until June 2003. I went to US consulate, gave him my I-20 and issued me a new F-1 visa.

I came back to US in May 2002. I went back to my college, who issued me an extension of I-20, and received 3 F's and B on my classes due to I was absent so many days. Then, The admission office changed my F's to W's grade.

My wife became a USC in April 2002. I filed I-485 in June 2002, Got my working permit in July 2002, and got my green card in November 2002.

I got admitted into a new school in Central Coast CA in September 2002.
When I transfered to a new school, I paid a resident fee due to AB540 ( My non-resident fees was waived because I went to High School in 3 years).
I was told by international student counselor that I was not illegal after I filed I-485 because my wife is USC.

My wife tried to apply to my school and didn't get accepted. Instead, she goes to Southern CA school until now. Eventhough I go to school in Central Coast CA, I still go home to visit my wife & my sister every week. My wife lives with my sister since we got married. Sometimes my wife stays at her parents house for 2-3 weeks then go back to my sister's place.

On the application where they ask: Where do you live (school) in the past 5 years? I put down: From 1997 - Present, I live in Southern CA. From 09/2002 - 08/2005 I live in Central Coast. My lease ends at the end of August and didn't find a place yet. I do anticipated to graduate in December 2005.

I got couple of speeding tickets in the past 3 years and I've never been convicted on any crime.

I submitted my N-400 Application based on Married with USC in August 2005. These are my questions:

1. What would be the good answer if USCIS ask me about our marriage?
I can't think other reason beside saying "I go back everyweek to see my wife & family". I do have joint credit card, joint bank account, joint income tax since we got married.

2. Was I out of Status during June 2002 - November 2002? If I was, I don't know any good reason to tell USCIS. I was reading from other thread on Johnny Cash's response " These (Overstayed, working illegally, and I can't remember the other thing) are completely mute/dead if you're married to USC.

3. Should I withdraw my N-400 application and reapply in 2-3 years later based on 5 year green card?
If I do withdraw my application, Do they keep the old application for future or throw it away?

Please help and thanks for reading my post.

 

[babydoom]

Talk to a immigration lawyer.

 

[JohnnyCash]

“Was I out of Status during June 2002 - November 2002?”

You WERE out of status, technically. Because you had no LEGAL status even though you had pending green card application (I-485) with INS. Filing an application with INS doesn’t mean that a person automatically obtained a legal status, nor does it mean that such person is protected from deportation if INS would wish to detain such person while his/her application for green card is being processing. However, INS VERY rarely (almost never) detains those who have pending application for green card with them even though they could if they wish. In this situation, they always use their discretionary authority/power as an immigration law gives a discretionary authority to them not to detain a person if such person has pending application for green card with them despite of the fact that such person has no legal right to be in this country. And, it is more reasonable for them not to detain a person especially when such person holds a valid ‘Work Permit’ thru them. That being said, you have nothing to worry at all because you had pending I-485 with them and you were issued a Work Permit at that time.


“Was I out of Status during June 2002 - November 2002? If I was, I don't know any good reason to tell USCIS.”

You don’t need to know anything on this to tell to USCIS. Why? Because, they will NEVER ask anything on this. I can guarantee you on this, especially when this kind of violation of immigration laws is AUTOMATICALLY forgiven if beneficiary is an immediate relative of a US citizen (petitioner). Pay attention: automatically forgiven. That’s the reason adjudication officer did not even bother to ask you anything about this at the time of approving green card application.



“Should I withdraw my N-400 application and reapply in 2-3 years later based on 5 year green card?”

Why would you do that? I don’t see any reason for you to do that. Based upon the information you provided here, I can tell you for sure that there won’t be any problem in your case. If you still wish to withdraw your pending N-400, then you can do so, as you can choose whatever you want to do.



“If I do withdraw my application, Do they keep the old application for future or throw it away?”

They keep the old application only for a while (couple of months) once it is withdrawn. After that, they toss them away. However, they don’t use the information provided in the old application to deny next/new application in the future. In addition, a person is allowed to file citizenship application as many times as s/he wishes if s/he would keep withdrawing it or if his/her citizenship application is kept denying based upon other reasons, which could be overcome.


“What would be the good answer if USCIS ask me about our marriage?”

The only reason for INS to ask about marriage is just to make sure that you are still married with a US citizne since your citizenship application is filed based upon 3 yrs rule because of being married to a US citizen. That is. For that reason, you can show any document that has joint names of both of you on it. During citizenship time, they are not questioning the bona fide of your marriage; instead they would like to know if you are STILL and REALLY married to a US citizen as your application is filed based upon 3 yrs rule.

However, if adjudication officer would notice about you having lived different places, espeically apart from your wife, then officer most probably would like to know the explanation on this. Just tell them the truth what you have said over here. This happens to thousand of people all the times. So obviously, they know that sometimes spouses live away from each other because of either job or schooling. Besides, Immigration laws don’t say that a couple must need to live together; instead it is all about the satisfaction of adjudication officer about couple’s relationship. But it would be better for you to have something to support your position on this; such as you should save your traveling ticket when you travel to be with your wife. Same about her traveling to you. You can still show a trip/vacation you might have taken together despite of living apart. You can show phone record to prove that you guys have been in touch to each other despite of living apart. Also, you can take sworn affidavit from two people (your sister or friends) who can say that they are witness to the fact that you and your wife are together. Believe me, this is nothing. Officers are not stupid. They would understand why you guys are not living together all the times.


If you still think that you need to see an immigration attorney, then you can see them. But don't forget that mostly immigration attorneys do scare people so that they could get business out of them, particularly when they make their living on clients.

Good Luck.

 

[rudinator1]

Wow, very detail explanation johnny cash. I do appreciate your time, opinions, and answer.

I'm hoping this will go smoothly. Thanks