N-400 in Limbo. Came on IR4 but adoption not finalized

[Saml7 0]

Hi, I am so glad there are many knowledgeable people who can help me in this...

I will make this concise. I am from India, and my parents died when I was 12. My uncle (US Citizen) obtained legal guardianship over me, with which I was granted an IR-4 visa. Using this visa, I entered United States when I was 14 in 2001 May. Right when I landed, I was issued a permanent resident stamp on passport (and green card mailed in a few months).

My uncle never finalized my adoption in the United States. Fast forward 14 years, I had a green card. I had been a permanent resident for more than the required 5 years, and satisfied all the requirements for naturalization. However, the immigration officer is giving me trouble because my adoption was not finalized. The way I understand, IR-4 children get a green card. Adoption needs to be finalized in order for the child to get US Citizenship. However, I have never found a law that states green card can be revoked if adoption is not finalized, or that I can't get naturalized. Just that you will remain a permanent resident. Is there a law that states otherwise? Please correct me if I am wrong.

So based on the facts, I have been a permanent resident for more than 5 years, passed the naturalization test, registered for selective service, and cleared everything to become a citizen. On the day of the interview, the IO issued me an N-14 stating that she needs the final adoption decree before she approves. How is this even applicable to naturalization? I am applying for naturalization based on the fact that I satisfied the eligibility criteria. My attorney sent a response stating the same and its been almost 90 days since we sent the response. They keep saying its under review. I am planning to send letter to Senator. Do I have a valid case? Is my green card conditional? Was it supposed to be revoked if adoption is not finalized? Was the IO even supposed to ask me for my adoption decree even though I expressed a DOZEN times that I don't have one? Please help me and let me know! Thank you!!

Sorry about the long post

Sam

[Omeka 14]

Please to help solve this if there is a way u can contact that same uncle to finalize the adoption go ahead and get it done. If there is no need for it then your application will not be pending

[Saml7 0]

Hello Omeka,

Thanks for your reply. Unfortunately, the finalization needed to be done before I turned 18. I am 29 now. The finalization does not help now.

Sam

[Hypnos 6,576]

I can't find any information that indicates the adoption must take place before you can be naturalised.

The only good thing is that after your application has been pending for 120 days after the interview you can then file in federal district court seeking to have a judge review your application. This often gets USCIS to capitulate.

[NigeriaorBust 4,087]

I think your problem lies here http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartD-Chapter2.html in the part that states

A. LPR at Time of Filing and Naturalization​

​

In general, an applicant for naturalization must be at least 18 years old and must establish that he or she has been lawfully admitted to the ​United States​ for permanent residence at the time of filing the naturalization application.​ ^[1] See INA 101(a)(20) and INA 334(b). See 8 CFR 316.2(a)(2). An applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the INA if his or her LPR status was obtained by mistake or fraud, or if the admission was otherwise not in compliance with the law.​ ^[2] See INA 318. See Matter of Koloamatangi, 23 I & N Dec 548, 550 (2003). See Estrada-Ramos v. Holder, 611 F.3d 318, (7th Cir. 2010). See Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir 2007). See De La Rosa v DHS, 489 F.3d 551 (2nd Cir 2007). See Savoury v. U.S. Attorney General, 449 F.3d 1307 (11th Cir 2006). See Arellano-Garcia v. Gonzales, 429 F.3d 1183 (8th Cir 2005). See Monet v. INS, 791 F.2d 752 (9th Cir. 1986). See Matter of Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983).

​

In determining an applicant’s eligibility for naturalization, USCIS must determine whether the LPR status was lawfully obtained, not just whether the applicant is in possession of a Permanent Resident Card​ (PRC)​. If the status was not lawfully obtained for any reason, the applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the INA, and is ineligible for naturalization even though the applicant possesses a ​PRC.​

​

Your issue is you got your green card on the basis of being a child of a USC but you never were adopted you were just a child living in his house . By not completing the adoption you violated the intent of your immigrant visa and your green card should not have been issued.

[Saml7 0]

Hi NigeriaorBust,

Thank you for your response. I went through the link you provided. This would mean that USCIS issued me a 'conditional green card'. The green card would not be valid if my uncle didn't finalize adoption. However, I can't find any information in the USCIS that mentions this. Also, it is mentioned that IR-4 immigrants would receive a permanent reside card. Why would the USCIS issue admit me as a permanent resident if it is unlawful?

It is mentioned nowhere that PR status becomes unlawful if adoption is not finalized...Please let me know if I am not thinking in the right direction. I really appreciate all you guys' help!

Sam

[Hypnos 6,576]

I don't believe NigeriaorBust is correct, since you were not admitted as the child of a US citizen. You were admitted as an IR-4, with the intention of your adoption being finalised by your US citizen uncle once you entered. Whilst it's true that you would have obtained citizenship automatically (through the Child Citizenship Act) once the adoption was final if you were under 18, if the adoption was not finalised you should be able to file an N-400 under the five year rule, as you have done.

From the facts as you have outlined them, I don't think USCIS will have any basis to deny your N-400 unless they can prove you fraudulently obtained your IR-4, which doesn't seem to be the case.

[Saml7 0]

Thank you for your response Hypnos.

Yea, that's exactly what I was thinking. Even though this was the response filed by my attorney, the IO is just sitting on it. I just don't know what to do if she denies it...This issue has caused me so much anxiety. I have been a responsible resident, filed my taxes, respected the laws, and this is how the US Government treats me. Its very emotionally draining.

Sam

[Hypnos 6,576]

If your N-400 is denied then you are entitled to a hearing in front of another USCIS officer (different to the one who made the decision) if you believe their decision was improper. This is done by filing an N-336.

And as I said above, if USCIS fail to make a decision within 120 days of your interview you can then file suit in federal district court seeking to have a judge review your application. Oftentimes just filing the lawsuit will make USCIS approve your N-400, since they figure out you're playing hardball. This is especially true if they have no basis in law to deny your application, which seems to be the case here.

[NigeriaorBust 4,087]

Everything I see is written about a child entering on an IR4 and that the adoption must be complete for that child to become a citizen. Even looking at immigration manuals. You are no longer a child , but the manuals say that the child can't become a citizen if the adoption isn't completed. It is time to scour case law for prior cases that support your position. ( You lawyer should be doing this ) I see where there are hung up on the words in their manual about the child not being eligible for citizenship with the adoption being completed. Your uncle got a petition approved on the intent of an adoption that never occurred. Hopefully there is case law that shows your years of residence with a green card and being adult puts you where you need to be.

[Hypnos 6,576]

I believe you are confusing the acquisition of US citizenship via the Child Citizenship Act with the normal N-400 process.

If the adoption had been finalised prior to the OP turning 18 then they would have automatically obtained US citizenship under the CCA, but the fact that that didn't happen doesn't preclude them from then filing under the five year rule and being naturalised that way instead.

Edited September 25, 2015 by Hypnos

[NigeriaorBust 4,087]

I am stating what I find about entry under an F4 visa, even when the child can't automatically gain citizenship because the parent can't pass it on yet. I think this is what the IO is also reading and why they are looking for that adoption certificate. The OP has a lawyer but I can see where the IO is hung up. In the background check they got to the item about proper entry and isn't able to get past the F4 being a visa with a required action on the back side much like a K1, The difference is the F4 is an immigrant visa ( to allow the child to automatically be a citizen when adopted ) Everything in the immigration manuals talk about the requirement to complete the adoption. Even though the OP was a child and it was the uncle that failed to complete the "requirement" that the child be adopted he needs to convince the IO that that doesn't affect the ability to maintain and benefit from the green card. I think the OP is probably right , he has had a green card long enough but he needs to convince the IO of that. It would be similar to someone coming in on an investment green card and never really opening a business that employees the required number of US employees. Could that person then use the green card to become a citizen. I am sure someone with more case examples will spot this thread sooner or later and be able to provide the examples of prior cases like this in the courts.

[KierenHby 897]

I am stating what I find about entry under an F4 visa, even when the child can't automatically gain citizenship because the parent can't pass it on yet. I think this is what the IO is also reading and why they are looking for that adoption certificate. The OP has a lawyer but I can see where the IO is hung up. In the background check they got to the item about proper entry and isn't able to get past the F4 being a visa with a required action on the back side much like a K1, The difference is the F4 is an immigrant visa ( to allow the child to automatically be a citizen when adopted ) Everything in the immigration manuals talk about the requirement to complete the adoption. Even though the OP was a child and it was the uncle that failed to complete the "requirement" that the child be adopted he needs to convince the IO that that doesn't affect the ability to maintain and benefit from the green card. I think the OP is probably right , he has had a green card long enough but he needs to convince the IO of that. It would be similar to someone coming in on an investment green card and never really opening a business that employees the required number of US employees. Could that person then use the green card to become a citizen. I am sure someone with more case examples will spot this thread sooner or later and be able to provide the examples of prior cases like this in the courts.

That's a scenario my thought veered to as an example. Regardless of OP's lpr status or an exemplary citizenry, an adoption decree must be complete, legal, valid, and final to gain LPR status, which, upon current review, appears to be missing. Or at least has a temporary asterisk on it.

[Hypnos 6,576]

An IR-4 visa is an immigrant visa that is not contingent on the adoption taking place to maintain the LPR status. Only automatic acquisition of citizenship through the CCA is dependent on the adoption being finalised.

This is not analogous to a K-1 because a K-1 is not an LPR immediately upon entry; an IR-4 is, because it's an immigrant visa.

[Saml7 0]

Thank you everyone for having this conversation. It looks like you know guys more than my attorney. I am learning more and more everytime someone posts to this thread.

@Hypnos, that was the impression I was under. LPR status was nowhere mentioned to be contingent upon adoption finalization. Only the citizenship was mentioned as contingent. The fact that I got an IR4 visa allowed me to enter the USA as a Lawful Permanent Resident. And the fact that I maintained the status for more than 5 years allowed me to qualify for naturalization.

I am starting to think that the IO interpreted the law in her own way as she saw fit. Now the question is, if a judge will think in the same way...

Sam