N400 Case Denied for 3 years marital union after evidence submitted

[CadeMcNown 39]

Hello, I am seeking advice on how to proceed. Our case was denied today with the option to request a hearing. My inexperienced interpretation of the law makes me think they should have accepted. Here is the backstory.

 

We applied for my wife 90 days before 3 years of her arrival. This advice is all over the internet and even on the USCIS website. At her interview, they said she needed to be in marital union for 3 years prior to applying. This came as a surprise since there were no warnings of this next to the 90 days advice. We were not overly concerned, however, because I visited her many times since being married, more than 90 days worth. I sent in evidence for 127 days of living together in the Philippines after our marriage.

 

Today we received a denial. They only counted the final visit. I had visited for 55 days before we flew back home together. Even at the interview, the interviewer told my wife the combined time together would be acceptable to fulfill the 90 days. We made it very clear in the evidence submitted how many days I had been there, where I stayed, when I flew, etc, so she could not have overlooked the other trips. We also made it clear that I have work and could not be there continuously, so I had to return home periodically. To give you an idea, here are my final 2 trips there which add up to more than 90 days:

 

2018/05/12 – 2018/06/22 (42 days in marital union)

2018/08/24 – 2018/10/18 (55 days in marital union)

 

We were never separated after 2018/10/18 which was her arrival date in US. So there is only around a 2 month gap when I had to return home, then we were continuous for the entirety of the 90 days. We have a bank account, house, taxes, and baby together.

 

I find it hard to believe a significant amount of Americans move to the foreign country for more than 90 days before immigration. How can this not be mentioned clearly when giving advice of applying 90 days early?

 

FYI my wife said the interviewer asked the toughest civil questions (which she got correct), then went into this 90 day business and was unfriendly the whole time. Then she took a long time to review the submitted evidence before denying today. Could it be just a bad case officer?

 

Was denial a correct decision? Should we do the hearing or just reapply? That's another $800, but how long would the hearing take to receive? Will I be allowed with my wife for the hearing? I am better at presenting the evidence since she is shy.

Edited April 7, 2022 by CadeMcNown

[Mike E 11,741]

@CadeMcNown

 

1. What date did you become a USA citizen?

 

2. What date did you marry?

 

3. What date did she file N-400?

 

 

[JeanneAdil 6,581]

 

https://www.uscis.gov/forms/uscis-early-filing-calculator

for 10/18/2018  arrival on CR1

Month

Day

Year

 

Earliest Accepted Filing Date:

07 / 20 / 2018

[Rocio0010 5,580]

It looks like she might not have met the residency requirements, based on the dates you were visiting her abroad. Based on VJ Guide to N400:

 has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant's continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period) and has resided within a state or district for at least three months.

 

Just now, Rocio0010 said:

It looks like she might not have met the residency requirements, based on the dates you were visiting her abroad. Based on VJ Guide to N400:

 has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant's continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period) and has resided within a state or district for at least three months.

 

I don’t see her being physically present in the US for at least 30 months out of the previous five years 

[Mike E 11,741]

.  

Edited April 7, 2022 by Mike E
Delete

[Mike E 11,741]

Delete  

Edited April 7, 2022 by Mike E

[CadeMcNown 39]

25 minutes ago, Mike E said:

@CadeMcNown

 

1. What date did you become a USA citizen?

 

2. What date did you marry?

 

3. What date did she file N-400?

 

 

1. I am citizen since birth.

 

2. Married 08/22/2017

 

3. Filed 07/21/2021

26 minutes ago, JeanneAdil said:

 

https://www.uscis.gov/forms/uscis-early-filing-calculator

for 10/18/2018  arrival on CR1

Month

Day

Year

 

Earliest Accepted Filing Date:

07 / 20 / 2018

We filed 07 / 21 / 2018. This is why we are so confused.

[CadeMcNown 39]

22 minutes ago, Rocio0010 said:

It looks like she might not have met the residency requirements, based on the dates you were visiting her abroad. Based on VJ Guide to N400:

 has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant's continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period) and has resided within a state or district for at least three months.

 

I don’t see her being physically present in the US for at least 30 months out of the previous five years 

She was present in the US from 10/18/2018 until now. We applied 07/21/2021. This was from the calculator which said earliest date to apply is 07/20/2021.

[CadeMcNown 39]

Exact message from USCIS:

 

You are required to live in marital union with NAME REMOVED for 3 years prior to the filing of your N-400. The affidavits and documents submitted show that when your statutory period started on July 21, 2018 you and your spouse were not living together. The documents show that NAME REMOVED was in the United States from the beginning of the statutory period until August 23, 2021, when he returned to the Philippines. The documents show that you and your spouse stayed in an Airbnb from August 23, 2018 until you both came to the United States on October 18, 2018. You did not provide sufficient evidence to show that you lived in marital union with NAME REMOVED for the 3 years prior to filing your N-400. Therefore, you do not qualify for naturalization at this time. See INA 319(a) and Title 8, Code of Federal Regulations (8 CFR), sections 319.1(a)(3) and (b)(1) and (2)(i) and (ii).

 

They completely disregarded all trips except the most recent. The evidence was outlined clearly to show the other trips also. As outlined in the initial post, here are my most recent 2 trips where we lived together (not my only ones!)

 

2018/05/12 – 2018/06/22 (42 days in marital union)

2018/08/24 – 2018/10/18 (55 days in marital union)

[Rocio0010 5,580]

29 minutes ago, Rocio0010 said:

It looks like she might not have met the residency requirements, based on the dates you were visiting her abroad. Based on VJ Guide to N400:

 has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant's continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period) and has resided within a state or district for at least three months.

 

I don’t see her being physically present in the US for at least 30 months out of the previous five years 

Never mind, I just read it is 18 months for spouses of USC...

[Mike E 11,741]

5 minutes ago, CadeMcNown said:

Exact message from USCIS:

 

You are required to live in marital union with NAME REMOVED for 3 years prior to the filing of your N-400. The affidavits and documents submitted show that when your statutory period started on July 21, 2018 you and your spouse were not living together.

So to me that is the problem. You were not living together on that day. Even though you were prior to that date.  
 

5 minutes ago, CadeMcNown said:

The documents show that you and your spouse stayed in an Airbnb from August 23, 2018

Thus the earliest you could file is August 23, 2021, according to the IO.  
 

5 minutes ago, CadeMcNown said:

2018/05/12 – 2018/06/22 (42 days in marital union)

I see your point. 
 

5 minutes ago, CadeMcNown said:

 

2018/08/24 – 2018/10/18 (55 days in marital union)

Right and had she filed 2021/08/24 you’d have been fine. 
 

So I think you have a basis for an appeal but the problem is even if you win it might take as long to wi the appeal as it would to refile N-400.  
 

I find this case to be fascinating as this is yet another land mine  of the 3 year rule.  I traveled for business without my wife shortly after we married and so I am going to going over my travel with a fine toothed comb before we file my wife in 2022.  
 

My mind is blown. 

[CadeMcNown 39]

13 minutes ago, Mike E said:

So to me that is the problem. You were not living together on that day. Even though you were prior to that date.  
 

Thus the earliest you could file is August 23, 2021, according to the IO.  
 

I see your point. 
 

Right and had she filed 2021/08/24 you’d have been fine. 
 

So I think you have a basis for an appeal but the problem is even if you win it might take as long to wi the appeal as it would to refile N-400.  
 

I find this case to be fascinating as this is yet another land mine  of the 3 year rule.  I traveled for business without my wife shortly after we married and so I am going to going over my travel with a fine toothed comb before we file my wife in 2022.  
 

My mind is blown. 

This is what I can find of the law. It is ambiguous:

 

§ 319.1 Persons living in marital union with United States citizen spouse.
(a) Eligibility. To be eligible for naturalization under section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:

(1) Has been lawfully admitted for permanent residence to the United States;

(2) Has resided continuously within the United States, as defined under § 316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence;

(3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period;

(4) Has been physically present in the United States for periods totaling at least 18 months;

(5) Has resided, as defined in § 316.5 of this chapter, for at least 3 months immediately preceding the filing of the application, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period falls within the required period of residence under section 316(a) or 319(a) of the Act, in the State or Service district having jurisdiction over the alien's actual place of residence;

(6) Has resided continuously within the United States from the date of application for naturalization until the time of admission to citizenship;

(7) For all relevant periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and

(8) Has complied with all other requirements for naturalization as provided in part 316 of this chapter, except for those contained in § 316.2 (a)(3) through (a)(5) of this chapter.

(b) Marital union -

(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

(2) Loss of Marital Union -

(i) Divorce, death or expatriation. A person is ineligible for naturalization as the spouse of a United States citizen under section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated. Eligibility is not restored to an applicant whose relationship to the citizen spouse terminates before the applicant's admission to citizenship, even though the applicant subsequently marries another United States citizen.

(ii) Separation -

(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.

(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union.

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

(c) Physical presence in the United States. In the event that the alien spouse has never been in the United States, eligibility under this section is not established even though the alien spouse resided abroad in marital union with the citizen spouse during the three year period.

 

I bolded what I view to be the key parts. It doesn't say anything about continuity. For example, if we were together for 2.5 years, I took a 2 month vacation, then another 2.5 years, does that mean we don't qualify? It seems left up to interpretation. I do see that residency can have up to a 6 month gap leaving the country, so why is the 2 month gap in marital union a denial? What I find astounding is that nobody else here seems to have experienced this.

Edited April 7, 2022 by CadeMcNown

[Mike E 11,741]

12 minutes ago, CadeMcNown said:

It
doesn't say anything about continuity. For
example, if we were together for 2.5 years, I
took a 2 month vacation, then another 2.5
years, does that mean we don't qualify? It
seems left up to interpretation. I do see that
residency can have up to a 6 month gap
leaving the country, so why is the 2 month gap
in marital union a denial?

Exactly.  I agree.  
 

12 minutes ago, CadeMcNown said:

 

What I find
astounding is that nobody else here seems to
have experienced this..

Likewise.  

[Kai G. Llewellyn 838]

36 minutes ago, CadeMcNown said:

(ii) Separation -

(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.

(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union.

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

(c) Physical presence in the United States. In the event that the alien spouse has never been in the United States, eligibility under this section is not established even though the alien spouse resided abroad in marital union with the citizen spouse during the three year period.

 

I bolded what I view to be the key parts. It doesn't say anything about continuity. For example, if we were together for 2.5 years, I took a 2 month vacation, then another 2.5 years, does that mean we don't qualify? It seems left up to interpretation. I do see that residency can have up to a 6 month gap leaving the country, so why is the 2 month gap in marital union a denial? What I find astounding is that nobody else here seems to have experienced this.

It seems that the marital union is established once the foreign national actually starts to reside with the citizen spouse and it continues regardless of whether the other spouse is home or not unless it meets the definition of a separation.

 

If it's informal separation, then it'd need to suggest marital disunity for the marital union to be interrupted. So a 2 month vacation shouldn't do it if you're still intending to return to living with your spouse when you come back. IF however, you return to your home country for 2 months because you were having a spat with your spouse and wanted to take a break then it WOULD interrupt the marital union.

 

Additionally, if you were say living in marital union overseas and the petitioner went back to the US to re-establish domicile while the foriegn spouse interviewed overseas, this would be an involuntary separation due to legal immigration controls separating the spouses. Again this would not interrupt the union. Nor would the marital disunity test come into it here.

 

It would seem to me that you had a burden of proof for your 2 month vacation that there wasn't marital disunity before or during those two months you were away, as we note "The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part." I'm taking a guess that this is why USCIS denied you despite not asking for evidence that there wasn't marital disunity during that period. Probably because your case officer was a jerk they could just deny it rather than giving you an opportunity to set the record straight.

 

Anyways, that's my two cents on how that all reads to me, I could be off base however. No point appealing, just refile N-400 as you should be eligible now.

Edited April 7, 2022 by Kai G. Llewellyn

[CadeMcNown 39]

32 minutes ago, Kai G. Llewellyn said:

It seems that the marital union is established once the foreign national actually starts to reside with the citizen spouse and it continues regardless of whether the other spouse is home or not unless it meets the definition of a separation.

 

If it's informal separation, then it'd need to suggest marital disunity for the marital union to be interrupted. So a 2 month vacation shouldn't do it if you're still intending to return to living with your spouse when you come back. IF however, you return to your home country for 2 months because you were having a spat with your spouse and wanted to take a break then it WOULD interrupt the marital union.

 

Additionally, if you were say living in marital union overseas and the petitioner went back to the US to re-establish domicile while the foriegn spouse interviewed overseas, this would be an involuntary separation due to legal immigration controls separating the spouses. Again this would not interrupt the union. Nor would the marital disunity test come into it here.

 

It would seem to me that you had a burden of proof for your 2 month vacation that there wasn't marital disunity before or during those two months you were away, as we note "The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part." I'm taking a guess that this is why USCIS denied you despite not asking for evidence that there wasn't marital disunity during that period. Probably because your case officer was a jerk they could just deny it rather than giving you an opportunity to set the record straight.

 

Anyways, that's my two cents on how that all reads to me, I could be off base however. No point appealing, just refile N-400 as you should be eligible now.

Thank you for pointing this out. I made it clear in my affidavit that I went home between trips due to work obligations. It would seem that according to the law this was a bad ruling then:

 

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

Edited April 7, 2022 by CadeMcNown