N400 denied based on eligibility

[VanessaTony 3,567]

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.

No sorry you're wrong. That is not a requirement. If you read the instructions there is no note that says "must still be married to the USC that petitioned you". It simply says "married to a USC for three years".

It appears the OP's issue is they got confused. They need to have been MARRIED for a MINIMUM of 3 years but they need only have been an LPR for 3 years minus 90 days. It's very clear on page 1 on the instructions, specifically "Who May File This Form?" #2.

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.

You're right. There is no such requirement.

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.

You're confused. It's 90 days prior to the 3 years of being an LPR BUT you MUST be married 3 years at the time of filing. This is quite clear in the instructions as I stated above.

Edited July 30, 2011 by Vanessa&Tony

[pepper 34]

I agree with JustBob on this.Its written on the USCIS website that you have to be married to the same US citizen to be eligible for the 3yr rule.

Naturalization for Spouses of U.S. Citizens

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
  Here's the USCIS link.....

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

[mimhnhut 0]

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.

I agree with you that if one person

+ 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

he/she may qualify for naturalization.

[bigdog 376]

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

Looks like they are counting your LPR date as 2007 as green card before marriage and not marriage for permanent status.

[NickD 202]

I recall reading about this too, the immigration congressional act of 1927. Felt if an immigrant was petitioned by a US citizen, brought here, married, would be a better citizen then by coming here by other means. Therefore a marriage privilege was granted to such immigrants in obtaining US citizenship in three rather than five years.

Too late to look this up, but also recall reading the eligibility requirements. Believe JustBob is correct on this point, to be eligible for the three year, has to be that US citizen that you received your green card through for the three year marriage privilege. If not, the standard five year rule applies.

[VanessaTony 3,567]

I agree with JustBob on this. Its written on the USCIS website that you have to be married to the same US citizen to be eligible for the 3yr rule. Yes but married to A USC not the USC that petitioned you for your GC

Naturalization for Spouses of U.S. Citizens

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
  Here's the USCIS link.....

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

Please read from the links you posted as what you posted proves that Bob is wrong. Bob is saying you are ONLY eligible for the 3 year USC if you got your GC based on marriage to a USC and are still married to the petitioning USC. This is NOT the case.

You are eligible to get USC after 3 years married to a USC, doesn't matter if, such as with the OP's case, you get your GC via another route. The OP got her GC (possibly through work or family), then later married a USC. She has been married to that USC for almost 3 years and is therefore eligible for USC when she's been married for 3 years and as long as she's been an LPR for 3 years (minus 90 days).

The reason the OP got denied is because she erroneously thought that the 3 years (minus 90 days) was about her marriage when in actuality it's her being an LPR for 3 years (minus 90 days) and that she MUST be married for 3 years at the time of applying.

[VanessaTony 3,567]

I recall reading about this too, the immigration congressional act of 1927. Felt if an immigrant was petitioned by a US citizen, brought here, married, would be a better citizen then by coming here by other means. Therefore a marriage privilege was granted to such immigrants in obtaining US citizenship in three rather than five years.

Too late to look this up, but also recall reading the eligibility requirements. Believe JustBob is correct on this point, to be eligible for the three year, has to be that US citizen that you received your green card through for the three year marriage privilege. If not, the standard five year rule applies.

I look forward to you supplying a link. There is NO MENTION of the 3 year rule being based on marriage to the petitioning USC only. It says "same USC" which I think a lot of people are implying to me "same USC that brought you here" but that is not the case.

Example, person wins GC lottery, not married to USC. Needs to wait 5 years to become USC. BUT in the first year of being here falls in love with, and marries, a USC. They are now able to get their USC based on marriage to this USC if they're still married in 3 years. Otherwise it's still the 5 years of being LPR.

[freetv 7]

As written anyone that is married to the SAME usc for three years would be eligible, but I don't think that was the intent of the law (which is where the courts can come in and change it). I think the people that view it as the petitioned usc are simply looking at it through intent, not as it is written in the books. It is interesting that we haven't come across this before though.

[NickD 202]

I look forward to you supplying a link. There is NO MENTION of the 3 year rule being based on marriage to the petitioning USC only. It says "same USC" which I think a lot of people are implying to me "same USC that brought you here" but that is not the case.

Example, person wins GC lottery, not married to USC. Needs to wait 5 years to become USC. BUT in the first year of being here falls in love with, and marries, a USC. They are now able to get their USC based on marriage to this USC if they're still married in 3 years. Otherwise it's still the 5 years of being LPR.

Could be, not exactly sure how the USCIS interprets this ruling, and the supreme court is no different in their many 5 to 4 infamous decisions on nebulous interpretation of the law.

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

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

But from what the OP posted quoted above, was denied for filing too early and that is obvious from this persons time line. HAS TO BE MARRIED TO THE SAME INDIVIDUAL FOR THREE YEARS ON THE DATE OF THE APPLICATION! Based on this, the applicant sent their application in too soon, their 3rd anniversary date is June 29, 2011, and the application was sent in April 29, 2011, when it should have been sent in the day after June 29, 2011.

We know by experience the USCIS is extremely critical on dates, are permitted to send in your application up to 90 days before your green card 3rd anniversary, but will be denied and your application returned if sent in 91 days before. Apparently the guy that read this application at those lockboxes, didn't catch this. They are certainly eligible to send in their application in today, this is practically a month after their 3rd wedding anniversary.

Question is, what will they do? In the event of an early before that 90 day limit for your interview, you make you wait a few days before issuing your certificate until the day or the day after your 3rd green card anniversary. But they consider that their fault for assigning that interview date too early.

But then again, it wasn't our fault our AOS date was postponed and after that, wife's and stepdaughter applications were misplaced with no considerations on dating their green cards. Stepdaughters green card is dated 2 1/2 months after her mom's and her mom's date was equally postponed. This put her a couple of days after she turned 18 so didn't automatically become a US citizen on the same day as her mom. And she had to wait two more years. Couldn't fight this and neither could my senator, just had to wait.

Here is an example where one pays the price even if it wasn't your fault. Feel your application and check should have been returned, that is the usual procedure. But now have to wait to see what happens.

[VanessaTony 3,567]

But from what the OP posted quoted above, was denied for filing too early and that is obvious from this persons time line. HAS TO BE MARRIED TO THE SAME INDIVIDUAL FOR THREE YEARS ON THE DATE OF THE APPLICATION! Based on this, the applicant sent their application in too soon, their 3rd anniversary date is June 29, 2011, and the application was sent in April 29, 2011, when it should have been sent in the day after June 29, 2011.

Yeah I know... that's what I, and others, have been posting this entire time. The OP was denied because they weren't married 3 years yet, and thought the "minus 90 days" was related to marriage, when it's related to time being an LPR. Bob was saying as the USC they're married to didn't petition the GC the OP needed to wait 5 years from LPR. I, and others, were saying this is not the case and it's simply 3 years of marriage to ANY USC and I used the example of someone winning the GC lottery as someone who started with a 5 years as LPR to do N400 date, but switched to 3 year N400 date once they married a USC.. or whichever is sooner.

[eskie 1]

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

Your attorneys gave you bad advice - so fire them, and don't pay them for the bad advice they gave you. You don't need attorneys for the relatively simple N-400 process anyway - provided you read the instructions in detail yourself. Do it yourself - - you can pay the new filing fee from the money you saved by not paying the attorneys!

Edited July 31, 2011 by eskie

[venusfire503 54]

I think OP should check and make sure before filing again. I'm no expert, so I'm not going to claim that someone canor cannot file based on 3 years of marriage to a USC even if the 'green card' came first. Maybe that's true, maybe it's not. I am fairly certain that IF the person got the 'green card' through marriage, then the 3 year rule only applies if the marriage is to THAT particular USC. Otherwise, people might come here, get married, get the 'green card', get divorced, get remarried, and then file 3 years after the marriage to the second USC (I think some DO try to do that, but are all unsuccessful). The thing is, I don't know if there's anything specifically mentioned about someone getting a 'green card' through other means and then marrying a USC. I wonder if anyone else found something that mentions that particular circumstance. For example, someone could get a 'green card' by coming as the 17 year old child of someone coming on a K-1, then get married at age 18 to a USC. Would they be eligible to apply for citizenship 3 years later?

That's the question that needs to be answered for the OP: Can marriage to a USC after receiving a green card - which was not obtained through marriage to a previous USC - qualify the green card holder for the 3 year rule?

If the answer is yes, then it's fine to file now. If the answer is no, then OP needs to wait until next year to file or will waste more time and money and be disappointed once again.

Best of luck!

venusfire

[rika60607 215]

So, what did interviewer say? That you filed 60 days too early or that you have to wait another year?

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

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

[Brother Hesekiel 2,235]

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...000b92ca60aRCRD

"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"

Point taken.

But . . .

http://www.uscis.gov...000b92ca60aRCRD

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

it all comes down to semantics and how USCIS interprets "during such time."

If it's during the last (past) 3 years, you are correct indeed. If it's during the time the applicant has been a permanent resident (green card holder), then the O.P. is not eligible based on that alone.

I would agree with you, but to the best of my knowledge USCIS doesn't.

Edited July 31, 2011 by Just Bob

[NickD 202]

Perhaps we should read the original post.

"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."

Poster is not asking us for opinions or recommendations, already knows that, definitely correct on this statement.

"Unfortunately, arguing with USCIS is ill advised."

The word argue is out of the question with the USCIS, more like very politely asking a question, with not arguments, but good sound logic reasons for asking that question. And politely accept their answer. Went through this with my stepdaughter that barely turned 18 with major delays caused by misplacing our applications after the AOS interview. Got nowhere, just waited those two extra years. Time goes by, think about something else, then it finally gets done.

Witnessed two guards escorting some guy out of the USCIS office, have no idea why, but he seemed very irate. You find this to be true when dealing with any government agency.