N400 Case Denied for 3 years marital union after evidence submitted

[randy32 165]

7 hours ago, CadeMcNown said:

Yeah we had no idea it was even a risk. We did 89 days actually just to be a little safe with the math. I understand many have applied like us with no issue. I think we just got a bad agent. I would definitely recommend not taking the risk unless you really are in a hurry. We are now delayed by a year trying to save a few months, not to mention the added expenses. Now the consideration is whether to contest at a hearing or apply again. We will contact a lawyer as it seems an uncommon case, and I'm sure they can tell us whether it's worth pursuing.

As has already been stated, a contest will likely take longer then refiling.

There is also the cost depending on if you have a lawyer file it for you.

[Mr Genuis 91]

On 4/7/2022 at 8:13 AM, CadeMcNown said:

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.

I will just file again. It is good you have seen where the mistake/problem is.

[Family 4,065]

On 4/7/2022 at 6:13 AM, CadeMcNown said:

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

You qualified and the mistake/ problem is with USCIS. Marital Union is not not subject to the bedroom test or “ living in under SAME ROOF “ . USCIS has been challenged and THEY LOST. See attached 
 

Pragmatic decision to pay $700 for a DIY N-336  ( can be filed online ) or start over is in your hands ..no matter what you raised awareness. Thank you 

 

 

https://www.leagle.com/decision/infdco20160210a97

 

 

 

The Court notes recent Supreme Court cases calling into question but not overruling the Seminole Rock rule. See, e.g., Perez v. Mortg. Bankers ###'n, ___ U.S. ___, 135 S.Ct. 1199, 1210-25, 191 L.Ed.2d 186 (2015) (Alito, J., concurring in part and in the judgment) (Scalia, J., concurring in the judgment); Christopher v. SmithKline Beecham Corp., ___ U.S. ___, 132 S.Ct. 2156, 2168-69, 183 L.Ed.2d 153 (2012).

 

2. The Court also notes that the agency's policy interpretation appears to lead to untenable results:A couple who has lived together under the same roof for three years applies for the non-citizen spouse to naturalize. One night, sometime before the interview for naturalization, the spouses have a terrible fight; they informally separate, and the alien spouse leaves the household and spends the night alone in a hotel. Thereafter, the spouses resume residence under the same roof.At the naturalization interview, the alien spouse is asked if the couple has lived in marital union — actually resided together — for the three years prior to applying and since applying. Would the alien spouse be lying if he or she responded no? What if the stay at the hotel was for a week, a month, a year? What if it preceded the application to naturalize?Under the plain language of the USCIS policy, it appears that the one night of nonresidence — meaning not under the same roof — could be fatal to this application. The policy does not include any indication of a minimum time that the spouses have to not share the same roof to restart the clock on marital unity, or even just fully end marital union. That is an untenable result logically, and not called for based on the plain language of the regulation.

 

 

[CadeMcNown 39]

On 4/10/2022 at 6:53 PM, Family said:

You qualified and the mistake/ problem is with USCIS. Marital Union is not not subject to the bedroom test or “ living in under SAME ROOF “ . USCIS has been challenged and THEY LOST. See attached 
 

Pragmatic decision to pay $700 for a DIY N-336  ( can be filed online ) or start over is in your hands ..no matter what you raised awareness. Thank you 

 

 

https://www.leagle.com/decision/infdco20160210a97

 

 

 

The Court notes recent Supreme Court cases calling into question but not overruling the Seminole Rock rule. See, e.g., Perez v. Mortg. Bankers ###'n, ___ U.S. ___, 135 S.Ct. 1199, 1210-25, 191 L.Ed.2d 186 (2015) (Alito, J., concurring in part and in the judgment) (Scalia, J., concurring in the judgment); Christopher v. SmithKline Beecham Corp., ___ U.S. ___, 132 S.Ct. 2156, 2168-69, 183 L.Ed.2d 153 (2012).

 

2. The Court also notes that the agency's policy interpretation appears to lead to untenable results:A couple who has lived together under the same roof for three years applies for the non-citizen spouse to naturalize. One night, sometime before the interview for naturalization, the spouses have a terrible fight; they informally separate, and the alien spouse leaves the household and spends the night alone in a hotel. Thereafter, the spouses resume residence under the same roof.At the naturalization interview, the alien spouse is asked if the couple has lived in marital union — actually resided together — for the three years prior to applying and since applying. Would the alien spouse be lying if he or she responded no? What if the stay at the hotel was for a week, a month, a year? What if it preceded the application to naturalize?Under the plain language of the USCIS policy, it appears that the one night of nonresidence — meaning not under the same roof — could be fatal to this application. The policy does not include any indication of a minimum time that the spouses have to not share the same roof to restart the clock on marital unity, or even just fully end marital union. That is an untenable result logically, and not called for based on the plain language of the regulation.

 

 

I cant believe they make a poor decision and the fee for challenging is nearly as much as the filing fee, even if we win!

[poh 125]

On 4/7/2022 at 6:06 AM, CadeMcNown said:

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.

Based on your timeline you didn't have the interview or approved for i751, yet.   Perhaps you should have waited until i751 being approved before applying for N400 because of your circumstances.  There was a forum held by USCIS that said applying for N400 while pending i751complicates your application process.   What was the rush to being naturalized?  Any questionable gap in continuous marital status can be sucrutinized.  Is living together as a married couple vs a trip to be with a married spouse the same in the context of continuous marriage requirements?

Edited April 18, 2022 by poh

[nastra30 2,295]

36 minutes ago, poh said:

   Perhaps you should have waited until i751 being approved before applying for N400 because of your circumstances.  There was a forum held by USCIS that said applying for N400 while pending i751complicates your application process. 

Applying N400 while I-1751 is pending is perfectly fine. Sometimes it actually simplifies the process if you a get combo interview whereby you have one interview for both at the same time and you get both approved at the same time or within days of each other. Op, just got screwed by USCIS IO.

[Redro 4,611]

I've been thinking of this case... and I remember watching a few months back a video on youtube suggesting this was a "trick" USCIS uses to deny citizenship.

Requesting evidence the USC and foreign national spouse lived together before they entered the US to activate the CR visa. 

I'm thinking some people are fairly conservative and believe you should be living in the same household right after the wedding. 

 

It seems unfair if they deny cases where the US has been living in the foreign country but moves back to satisfy domicile requirements (like Montreal requires...)

 

It also doesn't account for the very different ways people conduct their lives. 

I think of the couples I know who live in different cities during the week but see each other on weekends (very common here in Korea) and necessary because of the job market. Suppose the best bet is to wait for 3 years from entry to US 

 

Maybe a plus in the K1/AOS column vs CR1/IR1....   

 

Edited April 27, 2022 by ROK2USA

[mw2018 14]

I see what happened. They don't count the number of days you were living together. On 07/21/2018 (beginning of statutory period) when the 3 years preceding the filing of the application you should have been living together. Just on that day but you weren't hence the denial. They only covered period 07/21/2018 - 07/21/2021. Had you applied on 08/23/2021 you would have been fine because your statutory period would have started on 08/23/2018.

Edited August 14, 2022 by mw2018

[Saman1103 41]

What was the resolution on this? I'm in the same boat and about to apply as I'm eligible starting tomorrow. 

[OldUser 6,981]

12 minutes ago, Saman1103 said:

What was the resolution on this? I'm in the same boat and about to apply as I'm eligible starting tomorrow. 

Have you lived with your spouse for 3 years until date of filing and been LPR for 3 years at the same time? If not, you're not eligible.

[CadeMcNown 39]

11 hours ago, Saman1103 said:

What was the resolution on this? I'm in the same boat and about to apply as I'm eligible starting tomorrow. 

We reapplied. There was no point in contesting because it might take longer, we might lose, it costs roughly the same, and we are pretty much guaranteed to succeed on reapplication. We got a very fast interview scheduled in September, then they cancelled it. Months later we are still waiting with no interview. Don't risk it over the 3 months.

[Team A Forever 59]

It seems like the OP has found resolution to their situation. I wish you all the best as you continue your naturalization journey. If I may add a valuable distinct to what I've read in this thread. For Naturalization, it is not a question of whether the US Citizen has lived with the Permanent Resident in the 3 years proceeding the application for naturalization. It is a question of whether the Permanent Resident has lived in the U.S. for at least 3 years. (If using the 3 years married to US Citizen rule). For reference, I'm including a link directly to the USCIS's website that spells this out. 

 

I've only seen the 90 days stipulation in reference to CR-1 and the Removal of Conditions. 

 

The Check Eligibility button on the USCIS website is also a good tool to use to figure out whether it is time to apply for naturalization based on your specific situation. I genuinely hope this clarifies things for folks still wondering if they can go ahead and apply or not.  

 

https://www.uscis.gov/forms/explore-my-options/become-a-us-citizen-through-naturalization 

 

[Family 4,065]

5 minutes ago, Team A Forever said:

question of whether the Permanent Resident has lived in the U.S. for at least 3 years. (If using the 3 years married to US Citizen rule). For reference, I'm including a link directly to the USCIS's website that spells this out. 

I love seeing new posters engaging! 
The distinction you are making is not quite that simple, as the LPR doesn’t have to live “in the US for at least 3 years)…only meet “  physical presence and continuous residence “ threshold. 

[Team A Forever 59]

3 minutes ago, Family said:

I love seeing new posters engaging! 
The distinction you are making is not quite that simple, as the LPR doesn’t have to live “in the US for at least 3 years)…only meet “  physical presence and continuous residence “ threshold. 

Which is why I included the screenshot from uscis.gov

 

[OldUser 6,981]

@Team A Forever This is a general overview. There's more detailed criteria when it comes to naturalizing under 3 year rule based on marriage.

 

Here is simplified version:

 

https://www.uscis.gov/sites/default/files/document/guides/chapter4.pdf

 

Quote:

 

If you are at least 18 years old and:

- Are currently married to and living with a U.S. citizen;

- and Have been married to and living with that same U.S.  citizen for the past 3 years;

- and Your spouse has been a U.S. citizen for the past 3 years.

 

If you Google marital union, you will find more USCIS docs describing it...