Problems with USCIS & citizenship - help please!

[husker3in4 0]

I am having a hard time determining weather the USCIS is completely incompetent or of they are simply a scam. Let me explain. My wife is from the Philippines, and was married to a US citizen from 2008 - 2012 when he passed away from a botched surgery. She then came to the US in Nov of 2014 with a permanent resident green card. We met a month later and a couple oyears later, we married in May of 2016. I am a US citizen, and she has no need to marry me to stay in the US, as she already is a permanent resident. Mind you she has been working for the 3+ years she has been in the US, speaks perfect English and doesn't have a blemish on her record.

 

So in Nov of 2017, she has been in the US for 3 years. I urged her to become a US citizen as soon as possible, so she filed her N-400 and check boxed the eligibility option that said she needed to be in the country for 3 years and be married for 3 years. This is true since she was married to a US citizen for 4  years (and widowed, and no he wasn't 80), and had now lived in the US for 3 years. Since her permanent resident card was based on her marriage to her first husband and not me, there should have been no issue. Of course we had to include $725 "filing fee" and all supporting documents, including her marriage certificate to her first husband,  his death certificate and our current marriage certificate, and with the other documents they wanted.

 

A couple of weeks afterward we got a letter for an appointment at the USCIS office for bio-metrics. We assumed our application was good since they cashed the check and we seemingly were onto the next step. The representative at the USCIS field office checked over her information and told her she needed a current ID that showed her current married name since her permanent resident card showed her previous married name. So the USCIS was aware she was remarried to me. She then updated her ID to show her current last name and then got a letter for her interview date at the USCIS office. Great we thought!

 

We get to her interview appointment, and after a 90 minute wait (its a government office), her name gets called and she goes back for her interview. I have no worries as she aced all the sample tests and speaks better English than most people I know and has very little accent. She comes back out 15 minutes later and we leave. I assumed she easily passed the tests and we were just going to come back wait for the swearing in ceremony. On our way to our car, she tells me the interview representative told her she isn't eligible because she has to wait until next February to apply (where he got that date i don't know) or next August to apply (also don't know where that date came from) - AND that we wouldn't not get the $725 fee refunded, or even have it held for her next citizenship application.  I was furious! Since I had no idea about this until we already left the building, I wasn't able to talk to anyone in the building about this.  And as most of you probably know, you cant get a sniff of getting inside without an appointment and going through an armed checkpoint. I called the USCIS field office as soon as we got home, only to get voice mail, and the message of "voicemail is full".

 

I  have looked over everything several times and there are a couple of things I am questioning: On the eligibility questions, it says you must live 3 years in the US and married to a US citizen for 3 years. That should make her eligible since she has been in the US since 11/14 and was married to her US citizen husband for 4 years before she became widowed. Especially since her first marriage is what her permanent residence is based on. That is what makes me wonder if her interviewer just didn't look over things close enough?

 

The second thing I question, is  that even though her permanent residence status is based on her previous marriage of 4 years, if they require her to be married to ME for 3 years, why wasn't it caught and rejected when we sent in the application initially? Since her eligibility was based on 3 years living in the US and 3 years married to a US citizen, that should have been the first thing verified with all the marriage documents that were enclosed.  Even if for some reason it wasn't caught during the initial application submission,  it should have been caught during the next step, the appointment for the bio-metric screening.  If she was in fact not eligible, why did they wait until the 3rd step, the interview date before telling her, and cashing our check and keeping our money? That is what seems like scam worthy to me.

 

So it seems to me that the interviewer either didn't know what he was talking about, didn't review anything, or was new. Or the USCIS was at fault by completely missed verifying the documents we enclosed (that they asked for) and are making us foot the cost for their error. $725 is a lot of money, especially when losing it when you did nothing wrong.

 

Its one thing if we are just out of taking off 2 days of work for both appointments, and then have to wait until next year (if she really isn't eligible yet), but the fact that they keep the filing fee when they clearly screwed up on more than one occasion by not verifying her eligibility is what really upsets us. This is kind of like paying someone up front for home improvements, then they stop by 2 times for measurements and talk with you about exactly what you want, then they disappear with your money (and phone number disconnected).

 

Can any of you weigh in on this? Any of you with similar situations? Do I have a case to pursue here, or are we somehow at fault? It sure seems like the fault is on the side of the USCIS in one way or another (interviewer was wrong or didn't verify eligibility documents with the application).

 

Advise on next steps to take?

[TBoneTX 43,133]

Contact the Immigration Liaison in your U.S. Congressman's office.

[jxn 86]

I believe the instructions are clear enough that you have to have been married in the last three years to the same U.S. citizen and still married at the time of filing and adjudication.  Soon enough she'll be eligible for the five-year rule and you can avoid a lot of the three-year evidence.

 

I believe you're right that the timing should have been caught before being called in for an interview, but I don't think you're entitled to a refund. Being correctly denied doesn't mean you get the money back.

 

https://my.uscis.gov/helpcenter/article/3049

Edited February 8, 2018 by jxn

[cyclone27 710]

It’s 5yrs for widows. 

[Illiria 980]

They cash the check as you are paying them to look at the application not to grant citizenship. Think of it like the application fee to apply to a college, it permits you to apply but it doesn’t guarantee admission. 

 

When applying under the three year rule they look at if you have been a permanent resident for three years but the assessment of if you have been living in marital union with the us citizen husband during the three years of being a permanent resident is assessed at the interview. 

 

It is eligibility of 3 years based on the marriage that she got her original green card for so would have had to be in marital union with him which she can’t have been due to him being deceased and this is the part that she failed on. 

 

 

[Etamkoos 100]

The USCIS are not a scam - that is a crazy statement.

 

You state that your wife's USC ex-husband passed away in 2012, and she came to the US as an LPR in November 2014.  Her marriage to the immediate relative from which she became an LPR needs to be ongoing for her to qualify to naturalize after 3 years.  As this is not possible, she is not eligible to become a US citizen until she has been an LPR for 5 years.

 

It is your responsibility to check the instructions and eligibility criteria.  USCIS will take your fee for accepting the form.  They are quite clear that the fee is not refundable.

[geowrian 22,335]

The denial was correct since she was ineligible at the time of filing and interview. She must have been married to the same USC for the entire period for which she was filing under the 3 year rule. Having been married to one in the past does not count, and marrying a new one resets the clock (in which case using the 5 year rule is probably better).

 

https://www.uscis.gov/us-citizenship/citizenship-through-naturalization/naturalization-spouses-us-citizens

"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 "

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartG-Chapter3.html

"The spouse of a U.S. citizen residing in the United States must have been living in marital union with his or her citizen spouse for at least three years immediately preceding the time of filing the naturalization application. This provision requires that the spouse live in marital union with the citizen spouse during the entire period of three years before filing. ^[4]"

 

25 minutes ago, husker3in4 said:

The second thing I question, is  that even though her permanent residence status is based on her previous marriage of 4 years, if they require her to be married to ME for 3 years, why wasn't it caught and rejected when we sent in the application initially? Since her eligibility was based on 3 years living in the US and 3 years married to a US citizen, that should have been the first thing verified with all the marriage documents that were enclosed.  Even if for some reason it wasn't caught during the initial application submission,  it should have been caught during the next step, the appointment for the bio-metric screening.  If she was in fact not eligible, why did they wait until the 3rd step, the interview date before telling her, and cashing our check and keeping our money? That is what seems like scam worthy to me.

It wasn't caught at the time of filing as I don't believe they look at this during filing. They just make sure the forms as completed properly and then accept it. It is the applicant's obligation to file only once eligible.

The appointment and biometrics are workflow processes - they do not determine the applicant's eligibility for the benefit during these periods.

Fees are not refunded once accepted...they did their work of adjudicating the application.

 

Edit: Regarding the widow part, see https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-31517/0-0-0-31522.html#0-0-0-19835:

(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.

Edited February 8, 2018 by geowrian

[Illiria 980]

10 minutes ago, cyclone27 said:

It’s 5yrs for widows. 

Or widowers (therefore not discriminating against women who tend to be the surviving spouse) 

[mcdull 474]

she's not eligible, you were given the correct edibility date. so what's the issue?

[Hypnos 6,576]

As stated, you were properly denied.

 

She should file under the five year rule once she becomes eligible; it's a much simpler process since you don't have to also prove a bona fide marriage when the N-400 is adjudicated.

 

I ran into the same issue. I obtained my green card through being the widower of a US citizen. I wasn't able to apply for citizenship under the three year rule, only the five year rule. Them's the breaks, and I just had to suck it up. If anything, i counted myself lucky that I was even able to obtain a green card at all.

Edited February 8, 2018 by Hypnos

[husker3in4 0]

Ah, so I get it. She wasnt eligible because of her past husband being deceased and then shes not married long enough to me. It should have been described more clearly on the form.

 

Regardless of that, the "non refundable" part is where I have more issues with. As I stated, if she didnt qualify because of her widow status basically not counting one she got married again, it should have been verified and caught when her application was initially sent in.

Any other business in this great country would be sued in a heartbeat for charging several hundred dollars just to take your application for service but not providing the service. If she wasnt eligible to proceed down the path it should have been stopped. Charging money, waiting 3 months and then saying "sorry we cant help you" and keeping the money when it could have been halted at the beginning is something no other company can get away with. If anything, I see $85 of that was for fingerprinting, I could see them keeping that as an actual service was provided and her prints will be on file.  I see I am in the wrong line of work., then again I wouldnt want to be in a line of work where charging working people hundreds of dollars, for not doing anything and not refunding the money is just another day at the office. I guess Ill keep pestering them until I can get someone to pick up the phone, or clear their voice mail.

[geowrian 22,335]

15 minutes ago, husker3in4 said:

Ah, so I get it. She wasnt eligible because of her past husband being deceased and then shes not married long enough to me. It should have been described more clearly on the form.

It's pretty clearly defined in the worksheet that goes with the N-400:

https://www.uscis.gov/n-400 -> https://www.uscis.gov/system/files_force/files/form/attachments.pdf

"Attachment A - Naturalization Eligibility Worksheet

I have been a Permanent Resident for three to five years...

I am married to, and living with, a U.S.citizen. [True]   [False] -> STOP

I have been married to that U.S. citizen for at least the past three years. [True]   [False] -> STOP"

 

Quote

Regardless of that, the "non refundable" part is where I have more issues with. As I stated, if she didnt qualify because of her widow status basically not counting one she got married again, it should have been verified and caught when her application was initially sent in.

Any other business in this great country would be sued in a heartbeat for charging several hundred dollars just to take your application for service but not providing the service. If she wasnt eligible to proceed down the path it should have been stopped. Charging money, waiting 3 months and then saying "sorry we cant help you" and keeping the money when it could have been halted at the beginning is something no other company can get away with.

This is how everything in immigration works. They verify eligibility before adjudicating the form, but it is the applicant's responsibility to ensure that they meet the criteria first.

What service did USCIS not provide? They determined her eligibility for the benefit being applied for, and adjudicated the application. Just because she was ineligible at this time doesn't mean they didn't provide a service. Was the review of the documents free? Was the interview time free? Somebody has to pay for it, and they're nearly entirely self-funded so it comes from the application fees.

Imagine the people who file for a spouse or fiance to come to the US and spend ~$1000+ and a year or longer on the process just to get a refusal.

Edited February 8, 2018 by geowrian

[husker3in4 0]

It appears they really didnt review anything, otherwise it would have been halted at the time they got the application. ONE person, looking at the form and looking at the included documents would have seen that.

 

The bio-metrics and interview should have never taken place, had they reviewed and verified when they got the application.

 

Can you imagine going for an dental crown and being required to pay $700 up front which most medical business require payment up front before service. Once they have your money, you are in the dentist chair and someone comes in to tell you "sorry, I know your tooth hurts, but you dont really need a crown. And, we are going to keep your $700 because we had to check over your papers etc".

Its really the same thing, and its not right.

[jxn 86]

2 minutes ago, husker3in4 said:

It appears they really didnt review anything, otherwise it would have been halted at the time they got the application. ONE person, looking at the form and looking at the included documents would have seen that.

You paid a fee for the application to be reviewed. It was reviewed, and you don't get a refund based on not liking the outcome. It was properly denied.

[Hypnos 6,576]

The fee is for an adjudication, not an approval.