Murthy Attorneys Overcome Denial of Naturalization Application08 Jun 2016
As part of the process of naturalizing to U.S. citizenship, the U.S. Citizenship and Immigration Services (USCIS) generally reviews whether an applicant’s permanent residence (commonly, “green card”) was properly approved. If the USCIS determines that the green card should not have been issued, this typically results in denial of the application for naturalization (form N-400). Moreover, until and unless the problem with the green card is resolved, the individual may never be able to qualify for U.S. citizenship. So, when the Murthy Law Firm was approached by an individual whose N-400 had been denied based on the assertion by the USCIS that there was a problem with the underlying green card, we understood that this denial had to be overcome in order for our client to be able to complete this final step toward his American dream.
Background of Case
Approximately five years before contacting the Murthy Law Firm, this foreign national had been issued a green card through the employment-based, second preference (EB2) category. During the green card process, he had utilized a well-established strategy, requesting that the priority date from a previously approved I-140 in the employment-based, third preference (EB3) category be applied to his EB2 case. [More details on this process are available in the MurthyDotCom NewsBrief, Considerations for EB3 to EB2 ‘Upgrade’ (04.Feb.2014).]
N-400 Denial Based on Priority Date Used for Issuance of Green Card
The foreign national applied for naturalization, believing he met all of the requirements. Unfortunately, the USCIS denied the N-400 application because the officer disagreed with the priority date retention process followed in the underlying green card case. The adjudicating officer determined that the green card had not been properly approved and, thus, the individual was not eligible for naturalization. Specifically, the officer decided that the priority date could not be used for the EB2 case because the EB3 I-140 had been withdrawn by the petitioner, and this resulted in revocation by the USCIS.
Murthy Cites USCIS Policy to Argue for Reversal of Denial
Shortly after his N-400 was denied, this individual contacted the Murthy Law Firm to review his options. We recommended a direct challenge to the denial, and the applicant retained our services to represent him in the matter. Accordingly, we filed a request for a hearing on a decision in naturalization proceedings (form N-336).
It is true that the regulations state that a priority date cannot be retained if the I-140 is revoked; however, the longstanding USCIS policy is to allow for priority date retention from an earlier approved I-140 unless the petition is revoked for fraud, misrepresentation, or USCIS error. Based on this, we asserted that the EB3 priority date was properly used when our client’s green card was issued, and therefore the N-400 must be approved.
In addition, we argued that the USCIS could not apply a change in the law or policy retroactively to deny a naturalization application. And, because the priority date retention of the EB3 case was consistent with USCIS policy at the time our client’s green card application was approved, any potential change in policy regarding the use of a priority date from a revoked I-140 could not be used as a basis to then deny his N-400.
Approval of N-336 and U.S. Citizenship Granted
After reviewing our arguments, the USCIS accepted our position and approved our client’s naturalization application. But, more than just illustrating legal arguments to overcome this specific hurdle, this case highlights the interconnections between green card applications and naturalization cases. Our client in this case had done nothing wrong, so he likely had no way to anticipate the problems with his naturalization application. However, we have seen situations in which an individual has been issued a green card based, in part, on USCIS failure to identify a potential problem. While one may be relieved upon the approval of her/his green card, this does not necessarily indicate there will be not be an immigration problem in the future. Addressing the matter proactively could save a great deal of complications in the future.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining his/her express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
Copyright © 2016, MURTHY LAW FIRM. All Rights Reserved