Can I file second N400 now? Please help me understand.

[Guido51 9]

Hi everyone, i want to say thank you in advance if you can answer my questions because I will have to file a new N400 on my own. I want to make sure i am eligible for second N400 before I make the payment because fee is non-refundable.

 

My previous I751 and N400 was denied because of my divorce. Denial letter said that USCIS terminated my status when they denied the I751 and N400 because I couldn't submit divorce decree due to delays in family courts. 

 

My divorce became final 2 months ago and I filed a new I751. There was 3 months between the denial letter and filing second I751. (I had to wait for divorce to be final)

My 5th year anniversary of my first conditional green card will be tomorrow(Jan 18th 2021)

 

1 - Can i file a new N400 based on 5 year rule now?

2 - Because of denial letter that said USCIS terminated my status, am i disqualified? or do i have to wait more to make up that time? I don't know if I was out of status during that time. I get confusing answers.

 

Thank you.

Guido.

[aaron2020 11,651]

If your LPR status was terminated, then you how are you going to qualify for US citizenship?

[Guido51 9]

9 minutes ago, aaron2020 said:

If your LPR status was terminated, then you how are you going to qualify for US citizenship?

hi aaron2020, I don't know what "LPR status was terminated" means.

USCIS denial letter said "your LPR status was terminated" but a lawyer said USCIS cannot terminate status and he wanted me to file a new i751 after divorce.

I filed a new i751 with waiver when my divorce was final and that second I751 is pending today. i did not receive a court letter after i751 and n400 denial.

 

I thought i am not out of status today because i have a pending I751 but i do not understand this.

If i am out of status, how is USCIS letting me work and travel? They gave me a new stamp too after denial letter. i'm very confused so i'm trying to get help.

 

Guido.

[little immigrant 801]

Paging @mindthegap he knows this stuff 😊

[Guido51 9]

1 hour ago, little immigrant said:

Paging @mindthegap he knows this stuff 😊

thank you

[mindthegap 2,590]

18 hours ago, Guido51 said:

 

1 - Can i file a new N400 based on 5 year rule now?

Yes. 

 

18 hours ago, Guido51 said:

2 - Because of denial letter that said USCIS terminated my status, am i disqualified? 

No. The letter states your status is terminated, but this is not factually and legally correct. 

 

18 hours ago, Guido51 said:

or do i have to wait more to make up that time?

No. 

 

18 hours ago, Guido51 said:

I don't know if I was out of status during that time.

You were not. 

 

Your LPR status is not terminated until a final order of removal by an immigration judge, despite what the letter says.

Your lawyer is correct (unlike SO MANY 'lawyers' who are not). 

 

You have filed a new I-751, which is the important thing to do. Since the N-400 CANNOT be approved without the I-751 being first approved, when your second i-751 is approved there will be no gap in status or broken continuity for naturalization purposes. There is case law and legalese showing this (I have it buried somewhere)

 

 

Your I-751 was denied because you did not provide the divorce decree. This is correct.

The N-400 was denied because you were no longer eligible under the three year rule because you were no longer living in marital union to the petitioning US citizen spouse - this is correct.

You are now eligible under the five year rule (you also could have used the 90 day early filing window for this).

 

 

You will have to do biometrics (again!) and at some point you will have a combination interview for the N-400 and I-751. They won't adjudicate the I-751 without it, as it becomes linked to it. Hopefully you aren't waiting as long as I have been....

 

 

15 hours ago, little immigrant said:

Paging @mindthegap he knows this stuff 😊

😘

Edited January 18, 2021 by mindthegap

[Guido51 9]

2 hours ago, mindthegap said:

Yes. 

 

No. The letter states your status is terminated, but this is not factually and legally correct. 

 

No. 

 

You were not. 

 

Your LPR status is not terminated until a final order of removal by an immigration judge, despite what the letter says.

Your lawyer is correct (unlike SO MANY 'lawyers' who are not). 

 

You have filed a new I-751, which is the important thing to do. Since the N-400 CANNOT be approved without the I-751 being first approved, when your second i-751 is approved there will be no gap in status or broken continuity for naturalization purposes. There is case law and legalese showing this (I have it buried somewhere)

 

 

Your I-751 was denied because you did not provide the divorce decree. This is correct.

The N-400 was denied because you were no longer eligible under the three year rule because you were no longer living in marital union to the petitioning US citizen spouse - this is correct.

You are now eligible under the five year rule (you also could have used the 90 day early filing window for this).

 

 

You will have to do biometrics (again!) and at some point you will have a combination interview for the N-400 and I-751. They won't adjudicate the I-751 without it, as it becomes linked to it. Hopefully you aren't waiting as long as I have been....

 

 

😘

thank you for great response. i want to ask some follow up questions.

1 - my lawyer said i should wait until my second i751 with waiver is completed before filing N400. I want to file N400 as soon as i can. she didn't really explain why i should wait but if i file N400(this will be my second n400 as well) will it create any problem/risk for I751? lawyer said she doesn't like having 2 applications pending together. i don't know what that means.

 

2 - how can i find out if i am in removal proceedings? there was a 5-6months delay between my denial and second i751 because i had to wait for my divorce. during that time, i didn't receive a mail for court but how can i make sure i wasn't sent to court or put into removal proceedings?

 

3 - if you were in my situation - I751 and n400 denied before and a new i751with waiver is filled  - would you file n400 as soon as possible? is there anything that i should be careful about this? 

 

thank you again...

[HRQX 4,145]

1 hour ago, Guido51 said:

how can i find out if i am in removal proceedings? there was a 5-6months delay between my denial and second i751 because i had to wait for my divorce. during that time, i didn't receive a mail for court but how can i make sure i wasn't sent to court or put into removal proceedings?

You can call the EOIR automated line at 800-898-7180. Or you can also check online: https://portal.eoir.justice.gov/InfoSystem/Form?Language=EN

[mindthegap 2,590]

2 hours ago, Guido51 said:

3 - if you were in my situation - I751 and n400 denied before and a new i751with waiver is filled  - would you file n400 as soon as possible? is there anything that i should be careful about this? 

Well, I AM in your situation.... I-751 denied, second (divorce waiver) I-751 filed, and N-400 filed under five year rule

 

2 hours ago, Guido51 said:

1 - my lawyer said i should wait until my second i751 with waiver is completed before filing N400. I want to file N400 as soon as i can. she didn't really explain why i should wait but if i file N400(this will be my second n400 as well) will it create any problem/risk for I751? lawyer said she doesn't like having 2 applications pending together. i don't know what that means.

 

If you have a pending I-751, once you file the N-400, they become linked.

This is standard policy for a pending N-400 and I-751. In fact, my last 'out of processing time' enquiry for my I-751, stated exactly this:

"Our records indicate that you currently have another application pending that is currently awaiting to be scheduled for an interview. Once an interview date becomes available you will be scheduled. On the date of your scheduled interview the interviewing officer will interview and make a decision on both your I-751 and your other pending application. We regret that we are unable to give you a specific timeframe for an interview date"

 

The problem is, and this may be why your lawyer says this, is if you have delays for your N-400, your I-751 is effectively 'stuck'.

I am in this exact situation.

Second I-751 was filed fall of 2017, N-400 was filed start of 2018, N-400 interview scheduled start of 2019 and attended but cancelled by them on the day, and I cannot - no matter what I try - get them to reschedule an N-400 interview. I am exhausted from trying and just endlessly receive the same BS blanket response to every single enquiry, whether it is via the out of processing time form, or via senator enquiry.

And until they schedule a new interview, my I-751 remains pending, with all the pain in the ### stuff like stamps and limited term licenses that comes with it.

I am stuck in limbo. 

 

 

Otherwise - outside of my own personal immigration hell and back in the real world - there is little downside to filing the N-400 when eligible.

Your I-751 may take years. The N-400 could take years - so it could be a long while if you do them separately, in order.

Filing the N-400 should be quicker and should speed it up as they are dealt with together... there is various posts on this in the past and the merits and downfalls of doing this. 

 

 

2 hours ago, Guido51 said:

2 - how can i find out if i am in removal proceedings? there was a 5-6months delay between my denial and second i751 because i had to wait for my divorce. during that time, i didn't receive a mail for court but how can i make sure i wasn't sent to court or put into removal proceedings?

1-800-898-7180. Have your A# to hand.

NTAs and court proceedings can take years.

 

[Guido51 9]

1 hour ago, mindthegap said:

Well, I AM in your situation.... I-751 denied, second (divorce waiver) I-751 filed, and N-400 filed under five year rule

 

 

If you have a pending I-751, once you file the N-400, they become linked.

This is standard policy for a pending N-400 and I-751. In fact, my last 'out of processing time' enquiry for my I-751, stated exactly this:

"Our records indicate that you currently have another application pending that is currently awaiting to be scheduled for an interview. Once an interview date becomes available you will be scheduled. On the date of your scheduled interview the interviewing officer will interview and make a decision on both your I-751 and your other pending application. We regret that we are unable to give you a specific timeframe for an interview date"

 

The problem is, and this may be why your lawyer says this, is if you have delays for your N-400, your I-751 is effectively 'stuck'.

I am in this exact situation.

Second I-751 was filed fall of 2017, N-400 was filed start of 2018, N-400 interview scheduled start of 2019 and attended but cancelled by them on the day, and I cannot - no matter what I try - get them to reschedule an N-400 interview. I am exhausted from trying and just endlessly receive the same BS blanket response to every single enquiry, whether it is via the out of processing time form, or via senator enquiry.

And until they schedule a new interview, my I-751 remains pending, with all the pain in the ### stuff like stamps and limited term licenses that comes with it.

I am stuck in limbo. 

 

 

Otherwise - outside of my own personal immigration hell and back in the real world - there is little downside to filing the N-400 when eligible.

Your I-751 may take years. The N-400 could take years - so it could be a long while if you do them separately, in order.

Filing the N-400 should be quicker and should speed it up as they are dealt with together... there is various posts on this in the past and the merits and downfalls of doing this. 

 

 

1-800-898-7180. Have your A# to hand.

NTAs and court proceedings can take years.

 

Wow thank you for great response. everything you said makes sense however it is so frustrating to hear different things from lawyers aka "people who know this stuff" so i will just double check what i understand from you. thank you again.

 

1 - I will file n400 while i751 is pending. there is really no real risk to file second n400 while second i751 is pending, correct? 

2 - I also heard from lawyer that USCIS doesn't like receiving applications within 90days window.(they can easily deny the application if it is not filed after 5th year anniversary)

I used their calculator and it said I can file today. Is my previous denial and their so called "termination of status" won't mess up this 5 year requirement. correct? 

3 - Automated phone call system can't find case for my A-number. that tells me i am not in removal proceedings. is this normal? can i trust this system? i was just told that USCIS would normally put me in removal proceedings as soon as they deny but even after 5months of denial, that system tells me i don't have a case with immigration court.

4 - Lawyer said that I should not travel outside of the US however my work requires me to travel internationally. i have a stamp on my passport but green card/extension letters expired. I just can't understand why one lawyer says there is a big risk but the law says i can travel. i'm just tired of making the calculations of risk... i know nobody can say it with 100% certainty but; what are the chances risk of airport officer telling me "your status was terminated" or "you left after being in removal proceedings" ?

5- is there any form or process that i can do in order to secure my return to us if i travel? like advance parol etc (not sure if they are helpful to me) ?

 

Thank you again if you can clarify these points.

Guido.

 

 

 

 

[mindthegap 2,590]

2 hours ago, Guido51 said:

1 - I will file n400 while i751 is pending. there is really no real risk to file second n400 while second i751 is pending, correct? 

Risk of what? Denial?

No. You are permitted to file.

As stated, it isn't going to adversely affect you, unless you end up 'stuck' in limbo like me.

 

 

2 hours ago, Guido51 said:

2 - I also heard from lawyer that USCIS doesn't like receiving applications within 90days window.(they can easily deny the application if it is not filed after 5th year anniversary)

Nope. Expressely permitted in law.

INA 334(a) to be exact - https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1445&num=0&edition=prelim

"§1445. Application for naturalization; declaration of intention

(a) Evidence and form

An applicant for naturalization shall make and file with the Attorney General a sworn application in writing, signed by the applicant in the applicant's own handwriting if physically able to write, which application shall be on a form prescribed by the Attorney General and shall include averments of all facts which in the opinion of the Attorney General may be material to the applicant's naturalization, and required to be proved under this subchapter. In the case of an applicant subject to a requirement of continuous residence under section 1427(a) or 1430(a) of this title, the application for naturalization may be filed up to 3 months before the date the applicant would first otherwise meet such continuous residence requirement."

 

Also clarified in 8 CFR 334.2(b) 

https://www.ecfr.gov/cgi-bin/text-idx?&node=se8.1.334_12

 

2 hours ago, Guido51 said:

I used their calculator and it said I can file today. Is my previous denial and their so called "termination of status" won't mess up this 5 year requirement. correct? 

 

Correct. You are eligible according to the time from your 'resident from' date on your 2 year card, which is the date you became a LPR.

There is no break in continuous residence as you remain a LPR until a final order of removal is made by an immigration judge, at which point you cease to be an LPR.

 

2 hours ago, Guido51 said:

3 - Automated phone call system can't find case for my A-number. that tells me i am not in removal proceedings. is this normal?

can i trust this system? i was just told that USCIS would normally put me in removal proceedings as soon as they deny but even after 5months of denial, that system tells me i don't have a case with immigration court.

It is normal if there are no proceedings.

Yes, you can trust it. 

As previous, it can take many years for it to work its way to and through the court system. They may not have sent it on immediately or at all, anticipating you would refile with a waiver. 

 

2 hours ago, Guido51 said:

4 - Lawyer said that I should not travel outside of the US however my work requires me to travel internationally. i have a stamp on my passport but green card/extension letters expired. 

Is the stamp from your denied I-751?

If so, do not travel under your current stamp. Make an infopass for a new I-551 stamp - you may have to bend the truth for the reason to get an appointment right now during covid, but that shouldn't be too hard.

 The new stamp will be tied to - and probably annotated with - your new receipt number, NOT your old one and will be annotated 'TC-1' which is the code for spouse of US citizen denied/reopened,

It should look like mine (well, my last one - all of my stamps since refiling have these same annotations).

 

You will have to visit secondary every time you re-enter the country, which is required to verify your status. This will take a few minutes.

 

You remain a LPR with all the rights and responsibilities associated with that, until an immigration judge issues a final order of removal.

Since an LPR is absolutely granted the right to a hearing with an immigration judge, and is also permitted by law an I-551 during any and all immigration proceedings, this is what the 'TC-1' annotation is for - it is telling the officer at your POE that you have been denied, refiled/reopened, and proceedings are possibly pending. This is why they verify your status, and check that that there has been no final order of removal made/removal proceedings started - because you would no longer be an LPR if there had been, and would not be admitted. 

 

 

2 hours ago, Guido51 said:

i'm just tired of making the calculations of risk... i know nobody can say it with 100% certainty but; what are the chances risk of airport officer telling me "your status was terminated" or "you left after being in removal proceedings" ?

I hear you, I feel exactly the same. It is a total pain in the butt.

Thankfully the laws are there for a reason, and you have rights.

The only thing you can do for peace of mine is check the hotline right before you travel. It is a call that I make from the airport right before I board a plane overseas. 

 

2 hours ago, Guido51 said:

I just can't understand why one lawyer says there is a big risk but the law says i can travel. 

Not all lawyers are created equal, and many lawyers like to cover their butts and err on the side of extreme caution.

If they told you that you were 100% ok to travel, and something unforseen happened, thats a lawsuit against them right there. 

 

 

2 hours ago, Guido51 said:

5- is there any form or process that i can do in order to secure my return to us if i travel? like advance parol etc (not sure if they are helpful to me) ?

 

Nope.

 

Just get that new I-551 stamp, carry any relevant documentation with you and your old expired card (DO NOT SHOW YOUR EXPIRED CARD AT YOUR INFOPASS STAMP APPOINTMENT AS THEY MAY KEEP IT), and be confident that as a LPR you have certain rights under law, however frustrating and worrying this process is. 

 

 

 

 

 

 

 

Edited January 19, 2021 by mindthegap

[Guido51 9]

@mindthegap Hi, sorry I didn't see this earlier. First of all, you're a gift to share all this info. Do you have a patreon page or something like that? i want to buy you a beer or fish & chips dinner if you're british.. Thank you.

 

My only questions is I checked my passport stamp and i do not have TC-1. I have the new receipt number like you said but i have a code like CR1 OR CR6(I can't really read it). 

I checked the codes here on this page: https://www.dhs.gov/immigration-statistics/lawful-permanent-residents/ImmigrantCOA

I couldn't see your code here. 

 

CR1	Spouses, new arrivals, conditional
CR6	Spouses, adjustments, conditional

 

[mindthegap 2,590]

It won’t be on your current stamp which was issued before denia, as it wasn’t needed.

Once you go get a new stamp - which will be tied to your second filed I-751 - it should appear on that one. 
 

[Guido51 9]

20 hours ago, mindthegap said:

 

CR6 is on my current stamp - the one that i got after denial and re-filing new i751. 

I checked the old stamp(the one before denial) - it also has CR6

The new one has new receipt number.

Does it make sense?

[mindthegap 2,590]

Yep, understood. 

Are you sure it says CR6, not TR-6?

See here: