319b denied

[T and M 1]

Hi everyone,

My wife passed her citizenship test on February 12 under 319b and we were planning to leave the country on March 28. We did not hear anything for three weeks and three days ago I moved our flight back to April 17. It is a flex-ticket, so we were lucky, but we couldn't move it later, b/c we both have to back overseas for work.

We just got a decision from the Atlanta DO saying the application was denied because "it was determined that you currently reside in the United States and you do not plan to live abroad until April 2009. Therefore you do not meet the requirements of 319b." They specifically cited Section 319.2(B)(4)(i) of Title 8, CFR which states that the petitioner must "declare in good faith, upon naturalization by the Service, an intention to reside abroad with the citizen spouse." It then added that the burden of proof is on the petitioner.

The letter says that we can file a N-336 Request for Hearing on a Decision in Naturalization Proceedings "together with the appropriate fee." I don't even know what the appropriate fee is.

We are pretty down about this, and will be sending off a request first thing in the morning. Any thoughts on how to move this through faster? I mean we keep moving the flight back to accommodate their lateness and then they say that we are denied b/c WE AREN'T LEAVING SOON ENOUGH. I'm seriously upset about this.

Please help.

[thea 1]

What?????? But April 2009 is next month... how is this not soon enough?

Sorry this is not helpful.... I feel really bad for you and hope you can get this decision reversed. Unbelievable...

[YuAndDan 153]

You can find the FEE amount on USCIS.Gov

Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA)

Purpose of Form : To request a hearing on an unfavorable decision related to a naturalization application.

Number of Pages : Instructions: 2; Form: 1.

Edition Date : 11/24/08. Previous editions accepted.

Where to File : File your request with the USCIS office which made the unfavorable decision.

Filing Fee : $605

http://www.uscis.gov/portal/site/uscis/men...00045f3d6a1RCRD

I am not sure of the details, but

and You will be proceeding to join your spouse whose work abroad under orders of the qualifying employer will continue for at least 1 year after the date you will be naturalized. Form N-400 should be filed prior to departing.

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

"Proceeding to join" implies that US Citizen is already overseas.

[T and M 1]

What?????? But April 2009 is next month... how is this not soon enough?

Sorry this is not helpful.... I feel really bad for you and hope you can get this decision reversed. Unbelievable...

Well, according to the LAW, the newly naturalized citizen under 319b has to plan to leave with 45 days of naturalization. At the time of her interview, the flight was on March 28, 2009, which was 42 days from the interview date, February 12, 2009. The LAW is kind of pesky, however. We wouldn't want officers to worry with applying actual LAW.

I'm currently writing a very long angry letter to USCIS. This will accompany my $605 check for a request for a hearing. Luckily it is after 5pm and I have time to temper it before the final draft that will go out in the morning. I'm flabbergasted. Seriously blown away by this decision which lacks any legal basis.

[T and M 1]

"Proceeding to join" implies that US Citizen is already overseas.

Good point. I have a bunch of paper work from the Code of Federal Regulations and the USCIS field adjudicators handbook which is very clear that the 319b application can be made prior to the US citizen's departure (as long as the departure is within 45 days), and they also take into account whether or not the US citizen is just back in the states temporary. Since we are just back in the states for this stupid interview and oath, I would call that temporary, no?

We live in Bolivia. We applied from there. We just came back for this interview and oath. That's what makes this decision so frustrating. We have been waiting until the decision was made to leave the country again. I'm flabbergasted, but I do appreciate your reading of it, b/c I makes me remember that when making our request for hearing, we have to be clear that the Code of Federal Regulations is very clear on this in our favor. You can both apply before leaving and you can also accompany your PR spouse to the US for her interview and oath.

[Stella08 0]

I can't believe this! I mean, you had planned on leaving within 42 days after the interview. So even if your wife would have taken the oath right then, you still would be in the window. Since she even didn't take the oath yet, how can you not meet the criteria??? And of course you're still in the States at the time of the interview. Doesn't Section 319b also cover when you're getting ready to be sent overseas to work for the government or other agencies?

I'm not sure what your options are, I think your Congressman is involved in your case at is. Right? I'm keeping my fingers crossed. Seems like 319b cases are really tough ones and they never go straight through.

[T and M 1]

I can't believe this! I mean, you had planned on leaving within 42 days after the interview. So even if your wife would have taken the oath right then, you still would be in the window. Since she even didn't take the oath yet, how can you not meet the criteria??? And of course you're still in the States at the time of the interview. Doesn't Section 319b also cover when you're getting ready to be sent overseas to work for the government or other agencies?

I'm not sure what your options are, I think your Congressman is involved in your case at is. Right? I'm keeping my fingers crossed. Seems like 319b cases are really tough ones and they never go straight through.

Ha. Yes. They sometimes get held up because, quite frankly, they are rare and IO's aren't sure how to handle them. Our IO was unsure so his boss ended up handling it and she was the one that denied. Honestly, I think she has an old copy of her lawbooks, b/c her letter cites CFR 8, Section 319.2.b.4.i, but there is no 4 under 319.2b. There are only three sentences there. And sentence 1 of that section is where it says you must be leaving "within 30 to 45 days after the date of naturalization."

I'm feeling slightly more chipper as I begin writing my request for hearing. The $605 will be well worth it if we win. And quiet honestly, I can't see how we can lose. The law is SO clear on this. (The only thing I can figure out was that, since the IO did not ask for a copy of our flight plans, the case was denied b/c the burden of proof is on us. So our flight itinerary might be all that's necessary to reverse this.)

Edited March 6, 2009 by Thomas and Milena

[T and M 1]

I can't believe this! I mean, you had planned on leaving within 42 days after the interview. So even if your wife would have taken the oath right then, you still would be in the window. Since she even didn't take the oath yet, how can you not meet the criteria??? And of course you're still in the States at the time of the interview. Doesn't Section 319b also cover when you're getting ready to be sent overseas to work for the government or other agencies?

I'm not sure what your options are, I think your Congressman is involved in your case at is. Right? I'm keeping my fingers crossed. Seems like 319b cases are really tough ones and they never go straight through.

Ha. Yes. They sometimes get held up because, quite frankly, they are rare and IO's aren't sure how to handle them. Our IO was unsure so his boss ended up handling it and she was the one that denied. Honestly, I think she has an old copy of her lawbooks, b/c her letter cites CFR 8, Section 319.2.b.4.i, but there is no 4 under 319.2b. There are only three sentences there. And sentence 1 of that section is where it says you must be leaving "within 30 to 45 days after the date of naturalization."

I'm feeling slightly more chipper as I begin writing my request for hearing. The $605 will be well worth it if we win. And quiet honestly, I can't see how we can lose. The law is SO clear on this. (The only thing I can figure out was that, since the IO did not ask for a copy of our flight plans, the case was denied b/c the burden of proof is on us. So our flight itinerary might be all that's necessary to reverse this.)

I just figured out that the IO's law books aren't old. She just missed typed. Section 319.2.b.4.i. indeed does not exist. But Section 319.2(a)(4)(i) DOES exist, which is the one she quoted.

Anyway, writing response now. Congressman's office is calling first thing in the morning Monday, armed with my response. I am driving to the District Office with my response, my N-336 Request for Hearing, and a check for $605. We have no more time to spare.

Isn't this the height of irony? We have been trying to rush the USCIS for three weeks b/c we are itching to get back to our home abroad, and they deny our application b/c they say we are not leaving SOON enough. Unbelievable, but now I am laughing a bit more and crying a bit less. Please wish me lots of luck with this Request for Hearing.

Edited March 7, 2009 by Thomas and Milena

[NickD 203]

You won't need luck if you do everything right, was going to suggest you contact your congressman or even an immigration attorney, but see you have. I have yet to receive a response from any letter I sent to the USCIS, believe they go directly either to the field or service office then directly to a trashcan. Purpose of the attorney would be for verification of the law, but you may have that covered.

No way I know of suing these government agencies for the extra legal expense one may encounter, did have to hire a good tax attorney to fight an IRS audit, he knew ten times the law as the idiotic auditors. But I still had to pay his bill, that hurt.

[T and M 1]

You won't need luck if you do everything right, was going to suggest you contact your congressman or even an immigration attorney, but see you have. I have yet to receive a response from any letter I sent to the USCIS, believe they go directly either to the field or service office then directly to a trashcan. Purpose of the attorney would be for verification of the law, but you may have that covered.

No way I know of suing these government agencies for the extra legal expense one may encounter, did have to hire a good tax attorney to fight an IRS audit, he knew ten times the law as the idiotic auditors. But I still had to pay his bill, that hurt.

I just read that the request for a hearing could take as long as 180 days. This is unbelievable. We are leaving in 20 days, and they have denied our application because we are not leaving soon enough after the date of naturalization. But the law says you just have to leave within 45 days.

I am flabbergasted. Drafted my response last night and will deliver it personally to the District Office. I will also explain that this is urgent and there was a massively grave mistake made by the officer.

If the hearing takes six months, my wife will no longer meet the length abroad. I am just scheduled to be posted abroad until the summer of 2010. This is a horrible experience. I HAVE to have this thing reviewed as soon as possible. Maybe the Congressman's office can help.

[Stella08 0]

I have a question for you. I take it you're not working for the military. But is there any sort of work contract etc. which actually states a date when you have to start working abroad? With the military you get orders which state a date when you have to report to your new duty station. If we would have filed under section 319b we definitely would have added those orders plus confirmation for our booked flights to the papers we provided to the USCIS to prove we qualify for 319b. Did you add any of those papers to your evidence? I would assume that they want those just as they want to see a marriage certificate and other proof if you file under 319a. Of course the officer messed up, too, if he/she didn't ask for those papers. I would think that they would send a request for additional proof instead of denying your case right away. But I guess that proofs once more how important it is to provide a strong case with lots of documents and evidence, even USCIS doesn't ask for it. I'm just sorry you have to go through all this trouble and money.

[T and M 1]

I have a question for you. I take it you're not working for the military. But is there any sort of work contract etc. which actually states a date when you have to start working abroad? With the military you get orders which state a date when you have to report to your new duty station. If we would have filed under section 319b we definitely would have added those orders plus confirmation for our booked flights to the papers we provided to the USCIS to prove we qualify for 319b. Did you add any of those papers to your evidence? I would assume that they want those just as they want to see a marriage certificate and other proof if you file under 319a. Of course the officer messed up, too, if he/she didn't ask for those papers. I would think that they would send a request for additional proof instead of denying your case right away. But I guess that proofs once more how important it is to provide a strong case with lots of documents and evidence, even USCIS doesn't ask for it. I'm just sorry you have to go through all this trouble and money.

We provided all the information for my business with the initial application. That didn't appear to cause any problems. We actually filed the application from overseas and came back here just for the interview and oath ceremony.

The only thing I can figure out is that we should have included our flight itinerary. That's the central thing we are submitting with the N-336 request for hearing. Along with lots of legalese.

We'll see. Good point, by the way.

[Stella08 0]

I thought 319b was specifically designed so that you could take your interview and oath overseas.

Did you provide proof that your assignment abroad still lasts for at least another year? If you didn't do so yet, I would also provide evidence for that.

[T and M 1]

I thought 319b was specifically designed so that you could take your interview and oath overseas.

Did you provide proof that your assignment abroad still lasts for at least another year? If you didn't do so yet, I would also provide evidence for that.

Actually, according to the USCIS "You must be physically present in the United States at time of naturalization." You can fly to Guam or Hawaii, but you have to be on US territory for the interview. You can file from overseas though. Which is what we did. Again, we followed the rules to a T...just like many before us. I suspect the officer just did not know. There are always lots of problems with 319b applications because they are so rare. I am by no means the first to have to file an appeal after a mistaken judgment.

USCIS's FAQ sheet on 319b:

http://www.visajourney.com/forums/index.ph...ost&id=7625

[Stella08 0]

Yep, I posted a link a few weeks back that USCIS recommends to file 319b cases with the Washington DC field office because they're specialized in these cases, while you might experience delays with other offices. I guess that is a good recommendation. But of course it came too late for you since you filed in October already.