CadeMcNown

FYI we had our interview scheduled in September, cancelled, then rescheduled in March. Be prepared, sometimes they put you at the end of the list again.

3 hours ago, Sunisa said:

How is your interview? Can you share you timeline please

We actually finally got our (2nd) letter for interview a few days ago. We will interview March 13 if no further BS occurs.

The screw job is great with this case.

• Interview for November 2021
• Asked for evidence we were in marital union together for the full 3 years, which was sent
• Rejected April 2022 as described in this thread.
• Reapplied May 2022
• Interview Scheduled September 2022
• Interview mysteriously cancelled
• New Interview March 2023

It's like they canceled the first interview then put us back at the end of the list for no reason at all. Hopefully it won't be cancelled again.

For those thinking something I promise there's nothing complicated about our case. I met my wife while vacationing in her country. Both single, never married, no children, 3 years age gap. I visited her 5 times in a year for roughly 6 months total time together in her country. Many photos and receipts. We got the CR-1 no problem. We lived together the whole time in the US and have a house in both names, a child together (now 2!), filed taxes jointly, etc. There is no red flag. This can happen to anyone.

We are the ones linked to as a warning of what might happen. We're still waiting on the second application to get an interview scheduled after reapplying. I wouldn't recommend risking the 3 months. I believe we were in the right, but our officer didn't and it's probably going to cost us 1 year and $700.

On 4/10/2022 at 6:53 PM, Family said:

You qualified and the mistake/ problem is with USCIS. Marital Union is not not subject to the bedroom test or “ living in under SAME ROOF “ . USCIS has been challenged and THEY LOST. See attached 
 

Pragmatic decision to pay $700 for a DIY N-336  ( can be filed online ) or start over is in your hands ..no matter what you raised awareness. Thank you 

 

 

https://www.leagle.com/decision/infdco20160210a97

 

 

 

The Court notes recent Supreme Court cases calling into question but not overruling the Seminole Rock rule. See, e.g., Perez v. Mortg. Bankers ###'n, ___ U.S. ___, 135 S.Ct. 1199, 1210-25, 191 L.Ed.2d 186 (2015) (Alito, J., concurring in part and in the judgment) (Scalia, J., concurring in the judgment); Christopher v. SmithKline Beecham Corp., ___ U.S. ___, 132 S.Ct. 2156, 2168-69, 183 L.Ed.2d 153 (2012).

 

2. The Court also notes that the agency's policy interpretation appears to lead to untenable results:A couple who has lived together under the same roof for three years applies for the non-citizen spouse to naturalize. One night, sometime before the interview for naturalization, the spouses have a terrible fight; they informally separate, and the alien spouse leaves the household and spends the night alone in a hotel. Thereafter, the spouses resume residence under the same roof.At the naturalization interview, the alien spouse is asked if the couple has lived in marital union — actually resided together — for the three years prior to applying and since applying. Would the alien spouse be lying if he or she responded no? What if the stay at the hotel was for a week, a month, a year? What if it preceded the application to naturalize?Under the plain language of the USCIS policy, it appears that the one night of nonresidence — meaning not under the same roof — could be fatal to this application. The policy does not include any indication of a minimum time that the spouses have to not share the same roof to restart the clock on marital unity, or even just fully end marital union. That is an untenable result logically, and not called for based on the plain language of the regulation.

 

 

I cant believe they make a poor decision and the fee for challenging is nearly as much as the filing fee, even if we win!

19 minutes ago, Mike E said:

I agree OP’s wife should have been allowed to naturalize.  However she wasn’t.  Notwithstanding successful examples like yours, the risk of filing less than 3 years after POE can be likened to wagering $3600 on a race horse that pays back a $300 profit if you win or costs you $3600 if you lose. Versus betting $300 on a horse that is guaranteed to win, and pays back a profit of zero dollars.  

 

So given OP’s experience, it seems prudent to wait until the 3 year anniversary of the point of entry.  Costs 90 days versus potentially costing years if the IO breaks the law.  
 

There is a safe mitigation. 94 or so  days before the anticipated POE, the petitioner travels to the beneficiary’s country and lives with the beneficiary for a week or so.  Problem solved.  

Yeah we had no idea it was even a risk. We did 89 days actually just to be a little safe with the math. I understand many have applied like us with no issue. I think we just got a bad agent. I would definitely recommend not taking the risk unless you really are in a hurry. We are now delayed by a year trying to save a few months, not to mention the added expenses. Now the consideration is whether to contest at a hearing or apply again. We will contact a lawyer as it seems an uncommon case, and I'm sure they can tell us whether it's worth pursuing.

5 minutes ago, carmel34 said:

My husband is preparing to submit his N-400 next month, 90 days before his 3-year green card date anniversary.  However, this thread and the denial of the N-400 for the OP's spouse have caused us to re-think this timing.  If my husband files on May 20th, 2022 as planned, 3-years prior to that date (May 20th, 2019) he was living in Brazil, working at his job and waiting for his CR-1 visa interview which was in June, 2019, and I was living and working in the US.  Based on the officer's logic in OP's denial, we need to include evidence that we were "living together in marital union" on May 20th, 2019.  We do not have such evidence because he did not have his CR-1 visa yet.  We were not living together until he arrived in the US with his approved CR-1 visa on August 19, 2019.  I just checked the N-400 instructions and saw the requirement below, in bold:

 

A. Spouse of a U.S. Citizen. Bring the following items to your interview if you are applying for naturalization on the basis of your marriage to a U.S. citizen: (1) Evidence that your spouse has been a U.S. citizen for at least 3 years at the time you file your Form N-400. Such evidence may include: a birth certificate (if your spouse never lost U.S. citizenship since birth), Certificate of Naturalization, Certificate of Citizenship, or Form FS-240 Report of Birth Abroad of a Citizen of the United States of America; (2) Evidence of the termination of all your prior marriages; and (3) Evidence that you and your spouse have lived in marital union for at least 3 years at the time you file your Form N-400. Such evidence may include: (a) Joint bank and credit card statements; (b) Leases or mortgages; (c) Birth certificates of children; (d) Insurance policies; and (e) Internal Revenue Service (IRS)-certified copies of the income tax forms that you and your spouse filed for the past 3 years (or an IRS tax return transcript for the last 3 years).

 

I will now advise my husband not to file the N-400 until August 20, 2022, to avoid the potential for a denial.  He is also waiting for the ROC interview to be scheduled, like many others.  OP, you're not alone in overlooking this requirement, so thank you for sharing your experience.  There are many who filed the N-400 based on the 3 years minus 90 days from green card date rule, who were approved without issues, despite the fact that the couple was not "living together in marital union" three years before the filing date.  I checked some VJ timelines to confirm this.  So maybe some officers check this carefully, and others don't.  Maybe your trips abroad triggered a higher degree of scrutiny in your case, who knows?  I'm sure you'll be fine with the second N-400 application.  Good luck!

I would definitely recommend waiting the full three years to avoid any risk of this! I'm glad this can help you. We have received so much help from here that even if our case is unfortunate it can help as a warning for others.

32 minutes ago, Kai G. Llewellyn said:

It seems that the marital union is established once the foreign national actually starts to reside with the citizen spouse and it continues regardless of whether the other spouse is home or not unless it meets the definition of a separation.

 

If it's informal separation, then it'd need to suggest marital disunity for the marital union to be interrupted. So a 2 month vacation shouldn't do it if you're still intending to return to living with your spouse when you come back. IF however, you return to your home country for 2 months because you were having a spat with your spouse and wanted to take a break then it WOULD interrupt the marital union.

 

Additionally, if you were say living in marital union overseas and the petitioner went back to the US to re-establish domicile while the foriegn spouse interviewed overseas, this would be an involuntary separation due to legal immigration controls separating the spouses. Again this would not interrupt the union. Nor would the marital disunity test come into it here.

 

It would seem to me that you had a burden of proof for your 2 month vacation that there wasn't marital disunity before or during those two months you were away, as we note "The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part." I'm taking a guess that this is why USCIS denied you despite not asking for evidence that there wasn't marital disunity during that period. Probably because your case officer was a jerk they could just deny it rather than giving you an opportunity to set the record straight.

 

Anyways, that's my two cents on how that all reads to me, I could be off base however. No point appealing, just refile N-400 as you should be eligible now.

Thank you for pointing this out. I made it clear in my affidavit that I went home between trips due to work obligations. It would seem that according to the law this was a bad ruling then:

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

13 minutes ago, Mike E said:

So to me that is the problem. You were not living together on that day. Even though you were prior to that date.  
 

Thus the earliest you could file is August 23, 2021, according to the IO.  
 

I see your point. 
 

Right and had she filed 2021/08/24 you’d have been fine. 
 

So I think you have a basis for an appeal but the problem is even if you win it might take as long to wi the appeal as it would to refile N-400.  
 

I find this case to be fascinating as this is yet another land mine  of the 3 year rule.  I traveled for business without my wife shortly after we married and so I am going to going over my travel with a fine toothed comb before we file my wife in 2022.  
 

My mind is blown. 

This is what I can find of the law. It is ambiguous:

§ 319.1 Persons living in marital union with United States citizen spouse.
(a) Eligibility. To be eligible for naturalization under section 319(a) of the Act, the spouse of a United States citizen must establish that he or she:

(1) Has been lawfully admitted for permanent residence to the United States;

(2) Has resided continuously within the United States, as defined under § 316.5 of this chapter, for a period of at least three years after having been lawfully admitted for permanent residence;

(3) Has been living in marital union with the citizen spouse for the three years preceding the date of examination on the application, and the spouse has been a United States citizen for the duration of that three year period;

(4) Has been physically present in the United States for periods totaling at least 18 months;

(5) Has resided, as defined in § 316.5 of this chapter, for at least 3 months immediately preceding the filing of the application, or immediately preceding the examination on the application if the application was filed early pursuant to section 334(a) of the Act and the three month period falls within the required period of residence under section 316(a) or 319(a) of the Act, in the State or Service district having jurisdiction over the alien's actual place of residence;

(6) Has resided continuously within the United States from the date of application for naturalization until the time of admission to citizenship;

(7) For all relevant periods under this paragraph, has been and continues to be a person of good moral character, attached to the principles of the Constitution of the United States, and favorably disposed toward the good order and happiness of the United States; and

(8) Has complied with all other requirements for naturalization as provided in part 316 of this chapter, except for those contained in § 316.2 (a)(3) through (a)(5) of this chapter.

(b) Marital union -

(1) General. An applicant lives in marital union with a citizen spouse if the applicant actually resides with his or her current spouse. The burden is on the applicant to establish, in each individual case, that a particular marital union satisfies the requirements of this part.

(2) Loss of Marital Union -

(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.

(ii) Separation -

(A) Legal separation. Any legal separation will break the continuity of the marital union required for purposes of this part.

(B) Informal separation. Any informal separation that suggests the possibility of marital disunity will be evaluated on a case-by-case basis to determine whether it is sufficient enough to signify the dissolution of the marital union.

(C) Involuntary separation. In the event that the applicant and spouse live apart because of circumstances beyond their control, such as military service in the Armed Forces of the United States or essential business or occupational demands, rather than because of voluntary legal or informal separation, the resulting separation, even if prolonged, will not preclude naturalization under this part.

(c) Physical presence in the United States. In the event that the alien spouse has never been in the United States, eligibility under this section is not established even though the alien spouse resided abroad in marital union with the citizen spouse during the three year period.

I bolded what I view to be the key parts. It doesn't say anything about continuity. For example, if we were together for 2.5 years, I took a 2 month vacation, then another 2.5 years, does that mean we don't qualify? It seems left up to interpretation. I do see that residency can have up to a 6 month gap leaving the country, so why is the 2 month gap in marital union a denial? What I find astounding is that nobody else here seems to have experienced this.

Exact message from USCIS:

You are required to live in marital union with NAME REMOVED for 3 years prior to the filing of your N-400. The affidavits and documents submitted show that when your statutory period started on July 21, 2018 you and your spouse were not living together. The documents show that NAME REMOVED was in the United States from the beginning of the statutory period until August 23, 2021, when he returned to the Philippines. The documents show that you and your spouse stayed in an Airbnb from August 23, 2018 until you both came to the United States on October 18, 2018. You did not provide sufficient evidence to show that you lived in marital union with NAME REMOVED for the 3 years prior to filing your N-400. Therefore, you do not qualify for naturalization at this time. See INA 319(a) and Title 8, Code of Federal Regulations (8 CFR), sections 319.1(a)(3) and (b)(1) and (2)(i) and (ii).

They completely disregarded all trips except the most recent. The evidence was outlined clearly to show the other trips also. As outlined in the initial post, here are my most recent 2 trips where we lived together (not my only ones!)

2018/05/12 – 2018/06/22 (42 days in marital union)

2018/08/24 – 2018/10/18 (55 days in marital union)

22 minutes ago, Rocio0010 said:

It looks like she might not have met the residency requirements, based on the dates you were visiting her abroad. Based on VJ Guide to N400:

 has been physically present in the United States for at least 30 months out of the previous five years (absences of more than six months but less than one year shall disrupt the applicant's continuity of residence unless the applicant can establish that he or she did not abandon his or her residence during such period) and has resided within a state or district for at least three months.

 

I don’t see her being physically present in the US for at least 30 months out of the previous five years 

She was present in the US from 10/18/2018 until now. We applied 07/21/2021. This was from the calculator which said earliest date to apply is 07/20/2021.

25 minutes ago, Mike E said:

@CadeMcNown

 

1. What date did you become a USA citizen?

 

2. What date did you marry?

 

3. What date did she file N-400?

 

 

1. I am citizen since birth.

2. Married 08/22/2017

3. Filed 07/21/2021

26 minutes ago, JeanneAdil said:

 

https://www.uscis.gov/forms/uscis-early-filing-calculator

for 10/18/2018  arrival on CR1

Month

Day

Year

 

Earliest Accepted Filing Date:

07 / 20 / 2018

We filed 07 / 21 / 2018. This is why we are so confused.

Hello, I am seeking advice on how to proceed. Our case was denied today with the option to request a hearing. My inexperienced interpretation of the law makes me think they should have accepted. Here is the backstory.

We applied for my wife 90 days before 3 years of her arrival. This advice is all over the internet and even on the USCIS website. At her interview, they said she needed to be in marital union for 3 years prior to applying. This came as a surprise since there were no warnings of this next to the 90 days advice. We were not overly concerned, however, because I visited her many times since being married, more than 90 days worth. I sent in evidence for 127 days of living together in the Philippines after our marriage.

Today we received a denial. They only counted the final visit. I had visited for 55 days before we flew back home together. Even at the interview, the interviewer told my wife the combined time together would be acceptable to fulfill the 90 days. We made it very clear in the evidence submitted how many days I had been there, where I stayed, when I flew, etc, so she could not have overlooked the other trips. We also made it clear that I have work and could not be there continuously, so I had to return home periodically. To give you an idea, here are my final 2 trips there which add up to more than 90 days:

2018/05/12 – 2018/06/22 (42 days in marital union)

2018/08/24 – 2018/10/18 (55 days in marital union)

We were never separated after 2018/10/18 which was her arrival date in US. So there is only around a 2 month gap when I had to return home, then we were continuous for the entirety of the 90 days. We have a bank account, house, taxes, and baby together.

I find it hard to believe a significant amount of Americans move to the foreign country for more than 90 days before immigration. How can this not be mentioned clearly when giving advice of applying 90 days early?

FYI my wife said the interviewer asked the toughest civil questions (which she got correct), then went into this 90 day business and was unfriendly the whole time. Then she took a long time to review the submitted evidence before denying today. Could it be just a bad case officer?

Was denial a correct decision? Should we do the hearing or just reapply? That's another $800, but how long would the hearing take to receive? Will I be allowed with my wife for the hearing? I am better at presenting the evidence since she is shy.

Hello, feeling a little scared/disappointed after the N-400 interview. My wife passed the tests, but the interviewer said that since she applied 90 days before the 3 year green card date, she did not have evidence that we have been living in marital union for 3 years. She said it needs to be 3 years before the application, but the application is 90 days before the 3 year mark. I am so confused. What is the purpose of 90 days early if you will be judged less than 3 years for applying 90 days early? I have seen no advice on this and everyone says it's ok to do 90 days.

The evidence she submitted was the bill of sale / deed to our house in both of our names, joint filed tax returns for the last 3 years, and our child's birth certificate. Our marriage certificate shows we have been married 4 years including time waiting on the visa. That seemed like enough to prove a real marriage.

When the interviewer asked my wife if we lived together before she came to US, she said we were "long distance" and that I traveled there 5 times, 3-5 weeks each trip. She then said she's not sure, maybe it was 150 days, then said maybe 130. She had no itineraries or anything with her. Later, the agent had her sign a paper stating that we lived with each other before among other things, and she put it was for 150 days, saying "that is the perfect amount needed" or something like that. It was probably roughly 6 months I was there over the 5 trips, but for sure less than 150 days after marriage. Also, why would 150 days be the perfect amount, shouldn't it be 90 to complete the 3 years? How have we never heard of this happening with 90 days early?

She put a post it note on the form saying to include spouse's affidavit for staying in the Philippines, family member's notarized affidavit, itineraries for trips, and airbnb bookings. She also suggested we include proof of joint banking account. We only recently added her to my bank account this year, and she rarely uses it.

I guess what I'm wondering is:

1. Has anyone else experienced this? How long did it take to resolve?

2. The 150 days came from nowhere, right? If we applied 90 days early we should only need to prove I was in the Philippines with my wife for 90 days prior to green card, right?

3. Should the 3 years living in marital union be continuous? I was only in the Philippines around 60 days before we both flew to the US. I was there for 2 other trips while married before that final one which would easily surpass 90 days in total. I do have a job and couldn't stay there forever.

4. Any concern over them saying my wife lied if it's not 150 days? She signed the paper, but made it clear to the agent it was an estimation and the 2 of them even tried calculating the days with the 3-5 weeks times 5 trips.

5. Any other advice?

Thanks in advance...

4 hours ago, DCMB said:

That’s amazing news congrats ❤️
Does the estimated time on My USCIS said the approx time? 
 

my estimated time until case decision is 13 months 🥺

It still says 13 months, so seems inaccurate at this point.

Hello, we'd like to petition for parents from the Philippines to get a visa. They do not have passports yet and are living in Sorsogon City. It seems like there are no passport appointments available due to covid. They are senior citizens which they believe will allow them to be a walk in via the courtesy lane. Anyone know if this is correct? If not, how does one get a passport if needed. Certainly there must be a way? I've tried to read up on it but the language is a bit vague and confusing.

Feeling very greatful today! We filed 90 days early on July 21. Biometrics August 18. We were expecting to wait a year, but much to our surprise, interview scheduled November 10 at Chicago office!

Wow ok thank you both. I guess we expected some sort of letter, but if not needed, then cool! We will try to get him a passport next then.

Hello. In order. to get our son dual citizenship, we filled out a report of birth for our son (mother is Philippine citizen). We filed at the Chicago Philippine consulate through mail. Our first attempt they returned everything with some strange edits like changing our son's place of birth and making him name to have 2 first names instead of 2 middle names. Not a big deal, we just changed to what they wanted. Oddly enough when we got married they changed my name also to become 2 first names and 0 middle names. I guess they want the cultural naming conventions.

This time around, they simply mailed us a copy of the forms and required evidence. 4 copies were required of all, so it looks like we get 1. They signed the bottom There was no letter or anything. It seems to me it was accepted and they provided a receipt for the payment. Should we expect to receive any further documentation? How do we know when he is a citizen of the Philippines?

12 hours ago, top_secret said:

There is a really good writeup and list of hotels here.  https://www.thepoortraveler.net/2020/07/doh-accredited-hotels-quarantine-manila/

Wow, great resource, thank you! It sounds like inconsistency is the main consistency.

Great thanks. I joined the facebook group and will monitor the situation and try to pick the best time. It will be rough on my wife and baby to be isolated in a room for so long, but the uncertainty over whether it will be normal next month or next year will make it worth the trouble at some point.

We're seeking to travel to the Philippines (Manila/Cavite). I'm an American and my wife is on CR1 (waiting on removal of conditional status). She's been here nearly 3 years without a trip home and misses her family. We have a 1 year old son. Can anyone share their experience traveling there recently?

- Do they escort you from the airport to your quarantine hotel?

- While in the hotel, do we really need separate rooms, and is that strictly enforced?

- Anything else noteworthy?

Sorry if there's other topics already on this. I looked and didn't see, and also read all of the official government posts.

11 hours ago, Vermyndax said:

My wife just received her visa and there was no envelope inside either. The visas are inside the passport. Did your wife travel fine into the states without an envelope?

Yes we traveled without issue and have been happily in the US for 2 years! Congrats on your wife's visa!

Thank you for the replies! We should be good then.