N-400 2008 October Filers

[mnbinth 2]

I went with my wife to her interview today. There's good news and bad news for us. The good news is that my wife passed her tests with flying colors and had all documents in order. Also, the immigration officer was extremely friendly; couldn't ask for a better officer. The bad news is she decided to delay approval because we haven't been married 3 years yet. We filed under Section 319 of the Immigration and Nationality Act which is treated different than the average case and according to our legal advice and an Infopass meeting, the 3 year rule didn't apply to our case. (We'll be out of the country for a couple years and this is supposed to allow you to waive the wait time so you don't lose 2 years of the process while outside the country)... I find it hard to believe that we could hire an attorney, go through multiple levels of approval in USCIS and not have a problem until the last day. I'll spare you all the details. Long story short, there's lots of communication going on between our contact at the Senator's office, the immigration officer, and our lawyer. The officer even gave us her private number and asked us to call her as soon as we had more information she could use in the next 7 days. If she can approve, we'll do a private oath ceremony and be done. So, we wait and pray some more and the journey continues...

Edited January 15, 2009 by mnbinth

[T and M 1]

I went with my wife to her interview today. There's good news and bad news for us. The good news is that my wife passed her tests with flying colors and had all documents in order. Also, the immigration officer was extremely friendly; couldn't ask for a better officer. The bad news is she decided to delay approval because we haven't been married 3 years yet. We filed under Section 319 of the Immigration and Nationality Act which is treated different than the average case and according to our legal advice and an Infopass meeting, the 3 year rule didn't apply to our case. (We'll be out of the country for a couple years and this is supposed to allow you to waive the wait time so you don't lose 2 years of the process while outside the country)... I find it hard to believe that we could hire an attorney, go through multiple levels of approval in USCIS and not have a problem until the last day. I'll spare you all the details. Long story short, there's lots of communication going on between our contact at the Senator's office, the immigration officer, and our lawyer. The officer even gave us her private number and asked us to call her as soon as we had more information she could use in the next 7 days. If she can approve, we'll do a private oath ceremony and be done. So, we wait and pray some more and the journey continues...

How terrible. Could it be that the officer was simply not aware of 319b? Should we bring the relevant sections of the law with us to our appointment? We have not been married for 3 years either, but - like you say - 319b is is supposed to waive all "clocks," other than the one that says you have to be posted overseas for at least 1 year after the oath.

Congratulations on her passing. I am going to bring up your case with the 319b thread. Someone might be able to help.

[bggirl 0]

Hello, everybody!

I am still waiting for my interview letter (and getting a little worried seeing that almost everybody who filed around my date has gotten theirs ). However, I just got the "ÿellow" letter, saying what I have to bring to the interview. Has anybody gotten this before their interview letter (I know some people did but I am interested in the time between the two). Thanks! And congratulations to all who have received their interview dates already and to mnbinth for his wife passing it successfully!

[mnbinth 2]

Update: I could never get a hold of our attorney on Friday for an update other than an e-mail requiring more money to proceed.

Talk about insult to injury. *sigh* If it works its all worth it though.

[tyme 0]

Update: I could never get a hold of our attorney on Friday for an update other than an e-mail requiring more money to proceed.

Talk about insult to injury. *sigh* If it works its all worth it though.

Oh man!!I'm sorry to hear about this issue.Geez,the process just drains one emotionally and financially..I hope she is allowed to take the oath next week.The attorney is unbelievable,all they care about is money!!

[T and M 1]

Update: I could never get a hold of our attorney on Friday for an update other than an e-mail requiring more money to proceed.

Talk about insult to injury. *sigh* If it works its all worth it though.

That's ridiculous. Your attorney must have screwed up somewhere along the line, as far as I can tell. Section 319b of the Immigration and Naturalization Act clearly states that those PRs who are living with their USC spouses abroad (assuming the USC is working for a US company or government) are not tied to any of the time restrictions for naturalization.

Also, if you look at the requirements for naturalization, no where does it say you have to be married for 3 years. It just says you have to be married and living in the US with your spouse for 3 years. Since the 3 years is exempted in your case, this should have been no problem. I am very interested to hear how your case gets sorted out.

For the rest of us, it would be interesting to hear about the appeal process. How do you make an appeal?

[Stella08 0]

Update: I could never get a hold of our attorney on Friday for an update other than an e-mail requiring more money to proceed.

Talk about insult to injury. *sigh* If it works its all worth it though.

That's ridiculous. Your attorney must have screwed up somewhere along the line, as far as I can tell. Section 319b of the Immigration and Naturalization Act clearly states that those PRs who are living with their USC spouses abroad (assuming the USC is working for a US company or government) are not tied to any of the time restrictions for naturalization.

Also, if you look at the requirements for naturalization, no where does it say you have to be married for 3 years. It just says you have to be married and living in the US with your spouse for 3 years. Since the 3 years is exempted in your case, this should have been no problem. I am very interested to hear how your case gets sorted out.

For the rest of us, it would be interesting to hear about the appeal process. How do you make an appeal?

I think it depends on which way you interpret the law:

http://www.uscis.gov/propub/ProPubVAP.jsp?...758650d6d39638a

There are the general requirements:

Sec. 319. [8 U.S.C. 1430]

(a) Any person whose spouse is a citizen of the United States, 1/ or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this title except the provisions of paragraph (1) of section 316(a) if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse 1/ (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.

And then there is the exemption:

(B) Any person,

(1) whose spouse is

(A) a citizen of the United States,

(B) in the employment of the Government of the United States, or of an American institution of research recognized as such by the Attorney General, or of an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof, or of a public international organization in which the United States participates by treaty or statute, or is authorized to perform the ministerial or priestly functions of a religious denomin ation having a bona fide organization within the United States, or is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States, and

© regularly stationed abroad in such employment, and

(2) who is in the United States at the time of naturalization, and

(3) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required.

It sounds to me like the physical presence/residence and the marital union could be two separate things and it only waives one of the two requirements (the residence part). But I'm not a lawyer and I think in this case it's a good thing to have a pro representing your case.

[Stella08 0]

@ mnbinth

My fingers are crossed for you and your spouse. At least you have a lot of people willing to help you and work with you.

[T and M 1]

Update: I could never get a hold of our attorney on Friday for an update other than an e-mail requiring more money to proceed.

Talk about insult to injury. *sigh* If it works its all worth it though.

That's ridiculous. Your attorney must have screwed up somewhere along the line, as far as I can tell. Section 319b of the Immigration and Naturalization Act clearly states that those PRs who are living with their USC spouses abroad (assuming the USC is working for a US company or government) are not tied to any of the time restrictions for naturalization.

Also, if you look at the requirements for naturalization, no where does it say you have to be married for 3 years. It just says you have to be married and living in the US with your spouse for 3 years. Since the 3 years is exempted in your case, this should have been no problem. I am very interested to hear how your case gets sorted out.

For the rest of us, it would be interesting to hear about the appeal process. How do you make an appeal?

I think it depends on which way you interpret the law:

http://www.uscis.gov/propub/ProPubVAP.jsp?...758650d6d39638a

There are the general requirements:

Sec. 319. [8 U.S.C. 1430]

(a) Any person whose spouse is a citizen of the United States, 1/ or any person who obtained status as a lawful permanent resident by reason of his or her status as a spouse or child of a United States citizen who battered him or her or subjected him or her to extreme cruelty, may be naturalized upon compliance with all the requirements of this title except the provisions of paragraph (1) of section 316(a) if such person immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least three years, and during the three years immediately preceding the date of filing his application has been living in marital union with the citizen spouse 1/ (except in the case of a person who has been battered or subjected to extreme cruelty by a United States citizen spouse or parent), who has been a United States citizen during all of such period, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of the Service in the United States in which the applicant filed his application for at least three months.

And then there is the exemption:

(B) Any person,

(1) whose spouse is

(A) a citizen of the United States,

(B) in the employment of the Government of the United States, or of an American institution of research recognized as such by the Attorney General, or of an American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States, or a subsidiary thereof, or of a public international organization in which the United States participates by treaty or statute, or is authorized to perform the ministerial or priestly functions of a religious denomin ation having a bona fide organization within the United States, or is engaged solely as a missionary by a religious denomination or by an interdenominational mission organization having a bona fide organization within the United States, and

© regularly stationed abroad in such employment, and

(2) who is in the United States at the time of naturalization, and

(3) who declares before the Attorney General in good faith an intention to take up residence within the United States immediately upon the termination of such employment abroad of the citizen spouse, may be naturalized upon compliance with all the requirements of the naturalization laws, except that no prior residence or specified period of physical presence within the United States or within a State or a district of the Service in the United States or proof thereof shall be required.

It sounds to me like the physical presence/residence and the marital union could be two separate things and it only waives one of the two requirements (the residence part). But I'm not a lawyer and I think in this case it's a good thing to have a pro representing your case.

Indeed this is a very confusing case.

319b says that you have to "Comply with all other requirements for naturalization as provided in part 316 of this chapter, except for those contained in Sec. 316.2(a)(3) through 316.2(a)(6) of this chapter. "

316 says nothing about living for 3 years in marital unit. And sections three through six are all about continuous residence and physical presence.

The only word in the Immigration and Naturalization Act about living in marital union for 3 years is in 319a and 319d, neither which has anything to do with this case.

This case only has to do with 319b which references 316. It's a shame that our fellow mnbinth is going through this. The more I read this law (and I read it a lot before we applied), the more I am certain that mnbinth qualifies. There does not appear to be anything in 319b or 316 which refers to marital union.

Good luck, though! And please do keep us posted! I would not wait for the lawyer personally. I was call up that officer on his cellphone and ask him to look at 319b in the Immigration and Naturalization Act, which will point him to 316. The Code of Federal Regulations for 319b and 316 will back you up as well! Good luck!

[Stella08 0]

Thomas and Milena,

You're right. I made a connection between 319a and 319b even though they're two separate things. So, mnbinth should be covered, I would think. But once again, I'm not a lawyer (and reading all these confusing laws, I know why that is )

[T and M 1]

Thomas and Milena,

You're right. I made a connection between 319a and 319b even though they're two separate things. So, mnbinth should be covered, I would think. But once again, I'm not a lawyer (and reading all these confusing laws, I know why that is )

Indeed stella,

Although I had the opposite reaction. Reading through these laws, I'm glad we didn't hire a lawyer who would just ask for extra money when an open-close case required an appeal due probably to the lawyer's failure to adequately prepare his clients for the interview.

Honestly, what has the lawyer done so far for this case? Did he show up for the interview? Apparently not. Did he fill in the applicant's N-400? Probably, but that is hardly something that requires a lawyer.

One lawyer I spoke to about this required $1000 to file a 319b case, but I would hope that the appeal costs would be enclosed in this. Like you said though, stella, probably not. What a bummer.

Good luck mnbinth. I feel like you will win this one. And I think you could do it without this greedy lawyer. But either way, the law seems to be clearly behind you.

[Stella08 0]

Thomas and Milena,

You're right. If I would pay big bucks for a lawyer, I would hope he/she would prepare my case and all my grounds are covered and I would avoid obstacles like this one. That's why I'm paying lots of money.

Otherwise I can prepare the case myself, prepare everything as much as possible and hope for the best. Actually, that's what I'm doing. My husband is military and we were stationed overseas for 4 years. So we should be covered under Section 319 (e), but I know of at least one case where the applicant had problems because she had moved back to the States (on orders) already. She was told that she could have applied while they were still living overseas, but since she's back, they would have to count the time overseas as break in residence. To me this doesn't make any sense, so I'll go to the interview with all the laws, regulations and memorandums I can find about this at hand.

[mnbinth 2]

For the rest of us, it would be interesting to hear about the appeal process. How do you make an appeal?

It's not any kind of "official" appeal. The officer just called it that. Basically she just gave us her phone number and said to call her when we think we have something to allow her to approve the case.

[mnbinth 2]

It sounds to me like the physical presence/residence and the marital union could be two separate things and it only waives one of the two requirements (the residence part). But I'm not a lawyer and I think in this case it's a good thing to have a pro representing your case.

That's the exact issue the IO brought up and I did my best in my non-legal background to explain that it's really left to interpretation. Our attorney thinks she found something better though so I'll let you know what that is if and/or when it works.

[Stella08 0]

It sounds to me like the physical presence/residence and the marital union could be two separate things and it only waives one of the two requirements (the residence part). But I'm not a lawyer and I think in this case it's a good thing to have a pro representing your case.

That's the exact issue the IO brought up and I did my best in my non-legal background to explain that it's really left to interpretation. Our attorney thinks she found something better though so I'll let you know what that is if and/or when it works.

I keep my fingers crossed. I think Thomas&Milena is right and 319(a) and 319(B) are two separate items.