N-400 Denied Need Help

[afrocraft 313]

Just now, geowrian said:

Yes - burden for the benefit being sought is always on the applicant. But there is no requirement of showing a bona fide marriage under the 5 year rule, so there's nothing required to show. If the IO wants to question if LPR status was obtained incorrectly due to not having a bona fide marriage, the burden is on them to show that an error was made int he past.

Again, technically incorrect: One always has to be ready to show evidence of lawful admission. The USCIS manual is even clear on the documentary standard ("mere possession of a [green card] is insufficient). In OP's case, with a previous denial of benefit on the basis of marriage, his burden is even greater.

[Lemon23 400]

8 minutes ago, afrocraft said:

Respectfully, this is incorrect. I understand your point, but by statute and by case law, the applicant always bears the burden of proving eligiblity for naturalization.

 

5 minutes ago, geowrian said:

Yes - burden for the benefit being sought is always on the applicant. But there is no requirement of showing a bona fide marriage under the 5 year rule, so there's nothing required to show. If the IO wants to question if LPR status was obtained incorrectly due to not having a bona fide marriage, the burden is on them to show that an error was made in the past.

This confused me as well. I guess OP is still required to show evidences of bonafide marriage even under 5 years rule application since the green card was obtained thru US citizen spouse?

[afrocraft 313]

5 minutes ago, Lemon23 said:

 

This confused me as well. I guess OP is still required to show evidences of bonafide marriage even under 5 years rule application since the green card was obtained thru US citizen spouse?

Exactly. 

 

And with a previous denial on that very basis, he now has a giant bullseye on his back.

Edited June 5, 2019 by afrocraft

[Lemon23 400]

7 minutes ago, afrocraft said:

Exactly. 

 

And with a previous denial on that very basis, he now has a giant bullseye on his back.

I see, so the scrutiny is more tedious now and OP need to provide more evidences because of the denial on the first N-400 application.

[afrocraft 313]

25 minutes ago, Lemon23 said:

I see, so the scrutiny is more tedious now and OP need to provide more evidences because of the denial on the first N-400 application.

Right. And you can see why examining marriage for 5-year rule makes sense if we consider the following extreme scenario of marriage fraud: 

 

The applicant would marry a USC, petition for green card, wait more than 2 years before POE (so avoid the scrutiny of ROC), then wait another 5 years of residency to apply for citizenship (so avoid marriage scrutiny under 3-year rule). Does anyone really think in that scenario USCIS would be prohibited from probing whether that marriage was bona fide?

Edited June 5, 2019 by afrocraft

[geowrian 22,335]

33 minutes ago, afrocraft said:

Again, technically incorrect: One always has to be ready to show evidence of lawful admission. The USCIS manual is even clear on the documentary standard ("mere possession of a [green card] is insufficient). In OP's case, with a previous denial of benefit on the basis of marriage, his burden is even greater.

I disagree.

Just having a green card is not sufficient, but there is no requirement to demonstrate that no mistakes were made in the past. The IO can raise an issue if they suspect that LPR status was not lawfully obtained, but must be able to support that conclusion t deny upon that basis.

 

1 minute ago, afrocraft said:

The applicant would marry a USC, petition for green card, wait more than 2 years before POE (so avoid the scrutiny of ROC), then wait another 5 years of residency to apply for citizenship (so avoid marriage scrutiny under 3-year rule). Does anyone really think in that scenario USCIS would be prohibited from probing whether that marriage was bona fide?

They absolutely can probe it. People have been denied naturalization (and put into removal proceedings) due to a fraudulent marriage discovered during naturalization.

But they would need to be able to demonstrate it to deny naturalization on that basis. The bar is much lower for USCIS to deny a benefit (3 year rule marriage union) versus determine fraud (LPR status was obtained via marriage fraud).

[afrocraft 313]

14 minutes ago, geowrian said:

...The IO can raise an issue if they suspect that LPR status was not lawfully obtained, but must be able to support that conclusion t deny upon that basis.

... But they would need to be able to demonstrate it to deny naturalization on that basis. The bar is much lower for USCIS to deny a benefit (3 year rule marriage union) versus determine fraud (LPR status was obtained via marriage fraud).

Of course USCIS will need grounds for denial. We agree on that. Here's one:
 

Quote

https://www.uscis.gov/policy-manual/volume-12-part-b-chapter-4

C. Denial of Naturalization Application

Failure to establish lawful admission for permanent residence

Notice that fraud isn't the standard; just failure to establish.

 

Further:

Quote

https://www.ecfr.gov/cgi-bin/text-idx?&node=se8.1.316_12

(b) Burden of proof. The applicant shall bear the burden of establishing by a preponderance of the evidence that he or she meets all of the requirements for naturalization, including that the applicant was lawfully admitted as a permanent resident to the United States, in accordance with the immigration laws in effect at the time of the applicant's initial entry or any subsequent reentry.

And:

Quote

https://www.uscis.gov/policy-manual/volume-12-part-d-chapter-2
1. Lawful Admission for Permanent Residence

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] An applicant is not lawfully admitted for permanent residence in accordance with all applicable provisions of the Immigration and Nationality Act (INA) if his or her lawful permanent resident (LPR) status was obtained by mistake or fraud, or if the admission was otherwise not in compliance with the law. ^[2] 

 

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.

 

Edited June 5, 2019 by afrocraft

[afrocraft 313]

In practice, when OP applies under the 5-year rule, here's how it might play out at interview: Adjudicating officer cites previous denial, and asks for proof of LPR status obtained via marriage. And we're back to where OP was when his 3-year application was denied.

[arken 4,197]

Based on OP’s posts, it seemed the denial was primary due to lack of evidences for  3-yr marital relationship and not on the legitimacy of LPR admission. If that’s the case, then going with 5 year option with 5 yr tax transcripts (that too if asked during the interview) would work.

 

It is definitely recommended that OP at least keeps marital evidences just in case they ask about marriage during the interview.

 

If OP could share what he submitted/brought during the first application, it might clarify the reason behind denial and whether it would come up again or not.

[USS_Voyager 1,971]

The burden of proof to apply under the 3 years rule is very low. I applied under the 3 years rule and my GC was NOT through marriage, and all I had to do was provide the marriage certificate with date, a couple of utility bills, and I threw in our son's birth certificate just for kicks. But that was it, and no question was ever asked about that. Which makes me think that the OP almost had to NOT include anything related to the marriage to warrant  a straight denial. 

[Lemon23 400]

6 minutes ago, USS_Voyager said:

The burden of proof to apply under the 3 years rule is very low. I applied under the 3 years rule and my GC was NOT through marriage, and all I had to do was provide the marriage certificate with date, a couple of utility bills, and I threw in our son's birth certificate just for kicks. But that was it, and no question was ever asked about that. Which makes me think that the OP almost had to NOT include anything related to the marriage to warrant  a straight denial. 

Are you saying you did not provide documents about your tax filing and got approved? As far as I know, tax transcript is required whether the green card was obtained thru marriage or employer.

[USS_Voyager 1,971]

16 minutes ago, Lemon23 said:

Are you saying you did not provide documents about your tax filing and got approved? As far as I know, tax transcript is required whether the green card was obtained thru marriage or employer.

Oh I did provide tax transcripts. What I said was in reference to the part where you have to prove that you were "living in marital union with a US citizen for 3 years". Tax transcripts were a different bullet.

Since it seems like the OP was denied because lack of evidence that he was "living in marital union with a US citizen for 3 years", I was merely trying to point out that that part is very easy to prove. 

Edited June 5, 2019 by USS_Voyager

[Lemon23 400]

7 minutes ago, USS_Voyager said:

Oh I did provide tax transcripts. What I said was in reference to the part where you have to prove that you were "living in marital union with a US citizen for 3 years". Tax transcripts were a different bullet.

Since it seems like the OP was denied because lack of evidence that he was "living in marital union with a US citizen for 3 years", I was merely trying to point out that that part is very easy to prove. 

Yeah, but whether under 5 year and 3 year rules, thru marriage or employer, tax transcript is required, so that USCIS would know that the applicant is filing taxes religiously and do not owe anything to the IRS.

[USS_Voyager 1,971]

1 minute ago, Lemon23 said:

Yeah, but whether under 5 year and 3 year rules, thru marriage or employer, tax transcript is required, so that USCIS would know that the applicant is filing taxes religiously and do not owe anything to the IRS.

I said I did provide tax transcripts

[Lemon23 400]

6 minutes ago, USS_Voyager said:

I said I did provide tax transcripts

Yes you did, I'm just pointing out that the tax transcript is required since you did not mention the tax transcript on your original post.

Edited June 5, 2019 by Lemon23