Removing conditions and expedited naturalization

[caseyk55 2]

Hey everybody,

 

My wife has only had her conditional greencard for just under 1 year.  Before returning to reside in the US I'm about to be employed abroad for 2 years as a religious worker qualifying under Section 319(b) and we applied for expedited naturalization under that so that she could join me.  She excitedly went to her interview today and was immediately told that she isn't eligible for naturalization because its impossible, even under 319(b), to naturalize without removing the greencard conditions and she'll have to wait.  Is this true?  I could definitely be misunderstanding this, but the whole reason we thought we could is based on the following from the USCIS website in section C: https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter5.html

 

"A spouse of a U.S. citizen employed abroad based on authorized employment is not required to have any specific period of residence or physical presence in order to naturalize. ^[9]  Consequently, a CPR spouse is not required to file the petition to remove conditions if the spouse files his or her naturalization application before he or she reaches the 90-day filing period to remove the conditions on residence. ^[10]

 

A CPR spouse of a U.S. citizen employed abroad may naturalize without filing a petition to remove conditions if:

•The CPR spouse has been a CPR for less than one year and nine months; and

•The CPR spouse does not reach the 90-day filing period for the petition to remove conditions prior to the final adjudication of his or her naturalization application or the time of the Oath of Allegiance. ^[11] "

 

Thanks in advance for the help!

Edited October 31, 2017 by caseyk55

[mindthegap 2,605]

Did they actually deny the application, or just say you would be hearing from them once a decision has been made by a supervisor or similar?

As most of us eventually find out, many USCIS employees make stuff up or just knowingly lie.

 

You can appeal an N-400 denial by filing an N-336.

[caseyk55 2]

Thanks for such a quick reply.  They denied the application and had her sign a form saying she was cancelling it.  I want to be sure that he was wrong and that we have a legitimate case before appealing the decision.  Again, it's definitely possible that I'm misunderstanding the law.

[mindthegap 2,605]

The link and extracts you posted make it pretty clear that it is not a reason for denial.

Edited October 31, 2017 by mindthegap

[caseyk55 2]

I think so to..... I just looked at the cost of appealing with the N-336 and its $700!!!!  It's crazy that we'd have to pay that kind of money for their mistake.

[charmander 692]

We don't see a lot of 319(b)s here but law is clear she is eligible for N400 without a ROC as long as your abroad employment qualifies her. Before going into the expensive N336 route, could you guys do an infopass talk to the officer who interviewed her, if not satisfied, also ask to speak with a supervisor? Definitely bring printouts of those pages with you.

 

 

[caseyk55 2]

I'm actually scheduling an infopass right now.  If we decide it's not worth the fight, should we file the N-470 and the I-131, or just the N-470?  The officer told us just the N-470 and never mentioned the I-131.

[shell20 746]

21 hours ago, caseyk55 said:

Thanks for such a quick reply.  They denied the application and had her sign a form saying she was cancelling it.  I want to be sure that he was wrong and that we have a legitimate case before appealing the decision.  Again, it's definitely possible that I'm misunderstanding the law.

Unfortunately the field officers do not know everything. I went to get an i55i stamp for my passport, I was refused, the person who refused then consulted her supervisor who also refused it. My husband sent a complaint letter in with evidence to support I was allowed to have a stamp.  The manager of the field office wrote back within 2 weeks and told us to come in for the stamp.  A complaint letter with evidence worked for us, so perhaps you might want to try the same thing, write to the manager with a complaint and have all the facts in the letter ie the one you just posted.  Good luck and please keep us up dated!

Edited November 1, 2017 by shell20

[charmander 692]

2 hours ago, caseyk55 said:

I'm actually scheduling an infopass right now.  If we decide it's not worth the fight, should we file the N-470 and the I-131, or just the N-470?  The officer told us just the N-470 and never mentioned the I-131.

Isn't N-470 for self-employment, meaning it is the LPR who is going to be employed abroad, not the US citizen spouse. I wouldn't let this go until they give you a legitimate reason on USCIS policy manual why you are not eligible.

 

 

[caseyk55 2]

The soonest infopass I could get is for next Monday, the 6th, so we'll see how that goes.  Shell, was the complaint letter sent directly to the field office?  That would be a whole lot better than a full appeal!  

 

I've been so busy & frustrated with this that I haven't done much research on the N-470 yet.  I just know that the officer said that would be our only option.  But, someone mentioned to me that we would also need the I-131.  If the infopass thoroughly convinces me that we don't have a case then I'll ask them about that.

[caseyk55 2]

I just spoke with an immigration lawyer by phone who said that, while the officer was wrong about removing the conditions, there's nothing in the link I gave that directly overturns the requirement to have been married for 3 years. We've been married just under 2 .  The whole first section (A) talks about proving the quality and legitimacy of the marriage and never mentions the time.  So, based on the context of this chapter, we do qualify because we can prove our marriage is legitimate.  However, based on the context of the whole manual, we don't qualify because the 3 years is never specifically dismissed.

 

He was very confident in this and it sounds like we were in fact wrong, though not for the reasons the officer gave us.  But I'd like some more opinions.

[charmander 692]

On 11/3/2017 at 6:36 PM, caseyk55 said:

I just spoke with an immigration lawyer by phone who said that, while the officer was wrong about removing the conditions, there's nothing in the link I gave that directly overturns the requirement to have been married for 3 years. We've been married just under 2 .  The whole first section (A) talks about proving the quality and legitimacy of the marriage and never mentions the time.  So, based on the context of this chapter, we do qualify because we can prove our marriage is legitimate.  However, based on the context of the whole manual, we don't qualify because the 3 years is never specifically dismissed.

 

He was very confident in this and it sounds like we were in fact wrong, though not for the reasons the officer gave us.  But I'd like some more opinions.

https://www.uscis.gov/policymanual/Print/PolicyManual-Volume12-PartG.html

 

Look at the Table in Part C. If you're 319(b); then there is no specified term for length of marriage. My understanding is as long as you qualify for "319(b)"; you could apply as soon as the day you get your CPR card.

 

I hope the Infopass helps today. Keep us posted how it goes.

[caseyk55 2]

Surprise...SHE'S A CITIZEN!!!!! 

 

Ok, so I explained the situation and the infopass guy went to check on something before I had a chance to give him the evidence.  He came back a few minutes later and, having spoken with the officer that rejected us, told us the same thing as before.  I handed him both https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter5.html with Part C-2 highlighted and https://www.uscis.gov/us-citizenship/citizenship-through-naturalization/naturalization-spouses-us-citizens with "No specific period of marital union is required; however, the spouses must be in a valid marriage at the time of filing until the time of naturalization." highlighted.  The only thing I said was, "Then why do these 2 things contradict that?"  He told us to go back to the waiting room while they talked about it.

 

We waited about an hour and the officer who rejected us finally came out saying he had called around a dozen people, only one of which had ever heard of this "loophole" and thought it was a myth!  Finally the director approved it.  He apologized and did her test right on the spot!  Just when we thought it couldn't get any better, he said that they were going to do her ceremony in about 30 minutes at the office!!!

 

PRAISE THE LORD! This is so much better than anything we were hoping for.  We still don't feel like it's real. We walked in so frustrated and left completely stunned.

 

I'm about to email that lawyer and politely let him know that he was wrong  

 

 

[WeGuyGal 1,052]

CONGRATS !! 

[mindthegap 2,605]

Wow - result.