N400 denied based on eligibility

[biteykin 0]

My N400 application was denied earlier this week during the interview by the USCIS officer citing ineligibility due to filing too early.

The application was based on marriage to a US Citizen and filed 60 days prior to the 3rd anniversary of the wedding.

Needless to say, this caught myself and my attorney by surprise. Two other attorney's previously confirmed that the N400 can be filed up to 90 days prior to the 3 yrs (as long as the full 3 years have passed before the oath)

At this point our options are to 1) refile or 2) appeal. We considered appeal, but for the sake of time decided to simply refile - more filing fees, biometrics, time wasted, etc.

The explanation given cited two contradicting laws/statutes - one that requires 3 years marriage BEFORE filing and another that allows the app to be filed 90 days prior to the 3years. Unfortunately, arguing with USCIS is ill advised.

I am writing this partly to vent, but also to inform.

It's unclear whether this is an isolated case of a rogue USCIS officer or a new standard of interpreting the law within USCIS.

some dates:

14-Nov-2007 Received Permanent Resident Status I485

29-Jun-2008 Married US Citizen

29-Apr-2011 N400 Application Submitted

06-May-2011 N400 Receipt Confirmation

15-Jun-2011 Biometrics

25-Jun-2011 Yellow Letter

28-Jul-2011 Interview, application denied

[Anh map 2,098]

Did you acquire your LPR status through marriage, or were you already a GC holder prior to marriage?

[David-and-Mae 15]

Don't they check your eligibility the moment they received your case and looked through it? I thought that's the first thing they do and then send back your file if they believe it's too early for you to file? That's unbelievable! Going through the whole nine yards only to be told at the almost finish line that you're denied due to early filing.

[Penguin_ie 5,993]

How very odd. As you were a LPR for half a year before getting married, you should definitely have been elligible.

[Carrie1978 2]

I may be wrong here (sorry if I am) but he stated "60 days prior to 3 yr WEDDING anniversary". But isn't the 3 years supposed to be the length of time you have been a LPR in the states (I know you also have to be married 3 years)? I mean my husband and I celebrated our 4th anniversary before we were able to file the N400 because we were married before he got here, so it was 3 years after he received his green card.

Thats aside I agree with others, why on earth did they send your entire file thru before realizing this mistake? I'm sorry you are going thru this

Sorry I just read your timeline, I'm thinking they were going off the fact that when you file you have to have been married the full 3 years (from the exact date you filed). The 90 day rule is only for the 3 year anniversary of the green card.

Edited July 30, 2011 by aminesbaby

[fazmo 24]

This raises some eyebrows. Can you provide more details. I know you said you married June 29, 2008 but (1) does your marriage certificate show the same date? (2) Does your green card show resident since November 14, 2007? (3) Have you been living the same husband in the same place and showed the evidence to the IO? The officer either saw /was told/ something that we don't see here or he made his calculation/judgment wrong. Provided you answer yes to all three question, you seem to be eligible for the 90 days prior to your third year anniversary filing. Did the IO mentioned that he is going to deny your application on the spot, during interview? If yes, have you explained why you were eligible to apply? I am asking this in order to get some sense of what the IO was thinking.

I would definitely file a complaint about that officer through the proper channels, enlist the help of a local representative and see if anything can be done to re-deem my application. But if you have the choice between appeal and refile, I would say re-file makes more sense in terms of time and money.

[Harpa Timsah 13,258]

Sorry I just read your timeline, I'm thinking they were going off the fact that when you file you have to have been married the full 3 years (from the exact date you filed). The 90 day rule is only for the 3 year anniversary of the green card.

This is correct, from what I am reading. I just went through the instructions again. You have to have been married a full 3 years when you file the application, and have been a PR for 3 years - 90 days. You were married for less than 3 years when you applied. This could be troublesome for K-1 entrants who got their greencards in less than 3 months after filing, because they couldn't go off of their "resident since" date, because they will not be married 3 years when it comes time to file.

From the instructions:

"If you are applying based on five years as a lawful permanent resident or based on three yeas as a lawful permanent resident married to a U.S. Citizen, you may apply for naturalization up to 90 days before you meet the 'continuous residence' requirement. You must meet all other requirements at the time that you file your application with USCIS."

Edited July 30, 2011 by Harpa Timsah

[OKflyboy 35]

If you received your LPR status 9 months before you got married, you can either apply based on 5 years residency (way too early now)or after you have been married to a USC for the full 3 years. Again, you applied way too early. Formally USCIS is right. I just don't understand why they didn't send you your file right back and made you go through biometrics and everything. That just means that they don't really look through the applications until it's time for the interview, I guess.

[Hounslow 0]

Look up CFR 319 8 USC 1430 -- It clearly states you have to be married 3 years immediately following application filing. It appears your attorneys were incorrect in their instructions prior to your filing. It is quite easy to look up the CFR's on the internet that are applicable to the N-400, and their reading is pretty much straight forward. Although not applicable in your case due to the above, realize USCIS has internal directives not available to the public, which is why attorneys generally say just refile rather than waiting for up to a year for an appeal. Besides why appeal when the appeal is at the same office with the same people. (Kind of like one going to the same cookie jar with the same mom waiting for you).

If you already refiled you will not have to have your biometrics taken again (even though you pay the fee and nonrefundable)so should save some time. I recall biometrics are good for a year or 18 months.

Edited July 30, 2011 by Hounslow

[Kathryn41 3,205]

If you received your LPR status 9 months before you got married, you can either apply based on 5 years residency (way too early now)or after you have been married to a USC for the full 3 years. Again, you applied way too early. Formally USCIS is right. I just don't understand why they didn't send you your file right back and made you go through biometrics and everything. That just means that they don't really look through the applications until it's time for the interview, I guess.

That's right. Because USCIS knows they will be interviewing every applicant they generally don't go through the files in any great detail until the interview itself or shortly before. They check to see that the files are complete and the obvious disqualifiers for citizenship aren't present but the person scanning the application after it is received isn't closely checking dates to see if the applicant satisfies the 3 year married requirement. They may check for the 3 years - 90 days as an LPR but the rest involves a more detailed review of the petition and that isn't done upon receipt. That is also why you don't receive RFE's prior to the citizenship application either - you either bring the evidence with you to the interview or get an RFE at that time.

I know that my interviewer had not looked over my file or my petition and was reading and reviewing it while I was in the office with her for my interview.

Your lawyers did not pay full attention to all of the details - they only looked at the LPR part of the eligibility. It clearly states that you have to be married 3 years at the time of application and you are allowed to apply 90 days before the 3 year anniversary of the green card as long as all other qualifications have been met at the time of filing. I would request back any fees you submitted to them or have them refile your petition when you are eligible and have them pay for the USCIS fee. Their failure to pay attention to the details and inform you of this caveat has cost you another filing fee - and it should not have if they were doing their jobs correctly.

Edited July 30, 2011 by Kathryn41

[iGalin 7]

Well to me this case seems like you got your green card not through marriage(otherwise marriage would come first then getting green card).

So based on that you can apply only after 5 years, no matter if you got married right after getting green card.

also didn't see Removal of Conditions petition, if you didn't go through that one(again I don't see you were married 2 years before you applied for initial green card - so which would mean you got 10 year green card right away) - you definitely should wait 5 years.

Well don't give up, eventually you'll get it!!!

[OKflyboy 35]

Well to me this case seems like you got your green card not through marriage(otherwise marriage would come first then getting green card).

So based on that you can apply only after 5 years, no matter if you got married right after getting green card.

also didn't see Removal of Conditions petition, if you didn't go through that one(again I don't see you were married 2 years before you applied for initial green card - so which would mean you got 10 year green card right away) - you definitely should wait 5 years.

Well don't give up, eventually you'll get it!!!

Good point. To apply based on 3 years of marriage the GC has to have been received through current marriage. Obviously not so in this case.

[Harpa Timsah 13,258]

Good point. To apply based on 3 years of marriage the GC has to have been received through current marriage. Obviously not so in this case.

I don't think so. I just read through all the instructions and forms and I see nothing that says you must have received a GC through marriage to be eligible for the 3 year rule. It just says you must have been married to the same USC for 3 years at the time of filing and been a LPR for 3 years - 90 days.

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a0ffa3ac86aa3210VgnVCM100000b92ca60aRCRD&vgnextchannel=a0ffa3ac86aa3210VgnVCM100000b92ca60aRCRD

"In general, you may qualify for naturalization under Section 319(a) of the Immigration and Nationality Act (INA) if you

Have been a permanent resident (green card holder) for at least 3 years

Have been living in marital union with the same U.S. citizen spouse during such time

Meet all other eligibility requirements under this section"

and

"To be eligible for naturalization pursuant to section 319(a) of the INA, an applicant must:

Be 18 or older

Be a permanent resident (green card holder) for at least 3 years immediately preceding the date of filing Form N-400, Application for Naturalization

Have been living in marital union with the U.S. citizen spouse, who has been a U.S. citizen during all of such period, during the 3 years immediately preceding the date of filing the application and up until examination on the application"

[Brother Hesekiel 2,236]

If you did not get your Green Card based on the marriage to your wife, the one you are married to now, you are not eligible to file based on the 3-year rule. You will have to wait until you have been a resident for 5 years before you can file.

Pretty straight forward and simple rule.

[Harpa Timsah 13,258]

If you did not get your Green Card based on the marriage to your wife, the one you are married to now, you are not eligible to file based on the 3-year rule. You will have to wait until you have been a resident for 5 years before you can file.

Pretty straight forward and simple rule.

Can you show me in the instructions or the laws where it says you have to have gained your LPR status through USC spouse to qualify for the 3 year rule? I don't see it, and am curious. See my post above for my take. Thanks.