I’ve been waiting 11 months after my interview for a response. Has anyone had to wait this long?
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I’m considering it but I’m scared they might deny me because I’m taking legal action
So if the interviewer was asking any questions about your marriage (apart from obvious ones such as your ex-husband’s name, marriage and divorce date, copy of divorce decree), they were going beyond the scope of the interview.
I do not believe this statement is correct. The interviewer may ask questions about how the green card was obtained in the first place and check the validity of the route. (I was even double checked on that - and I got mine through diversity visa.) It’s not uncommon to ask divorced applicants questions that pertain to the validity of their marriage if that was how they got their green card.
The manual says the interviewer may ask any question needed to establish original eligibility for permanent residence.@SusieQQQ With due respect what is common and what is legally valid are 2 separate issues. Naturalization based on 5 years is covered by 8 CFR 316.2 while the 3-year rule is covered by 8 CFR 319.1. The differences are obvious - 319.1 clearly talks about how marital union needs to be proved, statutory differences between the marital union, separation etc. while 316.2 doesn't mention any of that. So the officer should be following the regulations during the interview. However, it doesn't mean they always do it - my adjudicator tried to ask me a bunch of questions about my asylum case when he had no right to re-adjudicate it (it was granted by IJ). However, when you have a federal case, all laws and regulations are strictly applied. For example, they tried to call me for 2nd interview - I flat out refused and filed a notice with the court that the USCIS was violating the regulation by scheduling an interview after 120 days and that too after the federal case was filed. As soon as that happened, the judge scheduled a phone conference and started questioning the US attorney about the delay. Within a few days I was naturalized with no more interviews.
The manual says the interviewer may ask any question needed to establish original eligibility for permanent residence.
I applied under the 5 year rule. I never got conditional green card because I had been married for longer than 3 years when I got permanent status.
I have inquired but all they say it’s that it’s still within processing times.
My online account still says “we scheduled your interview”
The manual merely says that the officer must check if the applicant was lawfully registered for permanent residence, which implies cursory checks such as verifying marriage date/certificate, asylum grant letter etc. depending on the type of adjustment. If the naturalization officer starts re-adjudicating all the original grants of cases such as asylum, vawa etc. by asking several questions about the case, it would usurp the authority of the original grantor (asylum office/IJ, etc). There is also a legal factor about the "burden of proof". The initial burden of proof to establish eligibility for asylum, marriage-based GC or any other benefit is on the applicant. But once the benefit is granted, the burden shifts to USCIS if they have to rescind it by showing "clear and convincing" evidence that the applicant was not qualified for it. So if DHS has doubts, they need to present their evidence first and then the applicant can disprove it rather than the other way around (where the officer asks the applicant to re-prove his case). This information is based on a top immigration litigator I had consulted during my case, although I did not end up using them due to affordability issues.
Like I mentioned, since you applied 5 years after your GC, the burden of proof is on uscis to prove with clear and convincing evidence that your marriage is fraudulent. The NOID should list the evidence they have against you. You need to ask a lawyer to evaluate the evidence they have provided and challenge it. How long did you actually live together with your husband and his long were you married for? How long after the green card approval did you get divorced?
If they actually deny your case, you will be placed in removal proceedings where DHS will try to prove to the judge that your marriage was fraudulent and you can prove otherwise. Even if they are able to prove before the judge that your marriage was fraudulent, you can apply for a waiver under 237(a)(1)(H) to waive the marriage fraud if you have a Immediate relative who is a US citizen or a permanent resident. The waiver will let you keep your GC and you can immediately reapply for citizenship. In other words, you still have options.
Did you and your husband attend your green card interview together? Were you living separately at the time of the interview?
You said that you could not remember where your husband was stationed. A mere lack of memory not sufficient to sustain USCIS’s burden of proof that your marriage was fraud. What reasons have they given in the NOID?
It’s good that you have a USC husband. It will help you in case you have to apply for 237(a)(1)(H) waiver. The waiver is quite generous since you do not have to show any hardship and it reinstates your permanent residency so you don’t have to start over again and can apply for citizenship right away. But this would be your last option if you can’t disprove their allegations. Good luck.