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00:02 Announcer: Welcome to Immigration Fridays, your source of up-to-date immigration information brought to you every Friday, from Miami, Florida by the Immigration Law Offices of David J. Hart, P.A.

00:23 Announcer: Today is September 28, 2007 and this week's topic, Answer to Naturalization Question and Information on USCIS Receipt Delays. Here is David Hart.

00:32 David Hart: Welcome back everyone to Immigration Fridays. Today is September 28, 2007. My name is David Hart, immigration attorney with you as usual from our office studio in Miami, Florida, and I have again as usual Andrea Olivos-Kah who is with us by telephone from Miami Beach. Andrea, how are you?

Andrea Olivos-Kah: Great. How are you David?

00:59 David Hart: Good. It has been a long week. I was in Colombia on Wednesday and got back late last night. Today we have an interesting question that came from one of our loyal listeners who sent me the question and then we have got something – an update on filings which we will discuss towards the end. But Andrea, our listener’s question had to do with citizenship. What is the question?

01:33 Andrea Olivos-Kah: The question is, he says, “I have a question which seems not to be well covered or at all on the web or in immigration sites – can an applicant for naturalization who received his green card via employment but is married to a US citizen file after three years of residency plus marriage rather than the normal 5-year residency. If so, what documentation or paperwork is required.

02:00 David Hart: Clearly the answer is NO. What is I guess confusing is that there is a provision where you can apply for citizenship after 3 years or when you reach 3 years of permanent residency minus the 90 days and we will get to that in a minute. But that is if you were sponsored by or if your US citizen spouse petitioned for you and you obtained residency based on that petition and you are still married and residing together with that US citizen petitioner, you can then apply for citizenship or naturalization once you have reached 3 years of residency minus 90 days.

02:52 Andrea Olivos-Kah: So just to clarify, the difference would be on how you attained your legal permanent residency, is that what you are saying, if you obtained your legal permanent residency as sponsored by your employer, you cannot then apply for citizenship on the basis of your marriage to a US citizen for 3 years?

03:09 David Hart: That is right. It is really how you obtained your residency. It doesn’t matter if you happened to be married at that time or if you are married soon thereafter to a US citizen, that would be irrelevant. It would be since you are let us say an employment based or you are an applicant who obtained residency based on an offer of employment, you did a labor certification, an I-140 petition, and then adjusted your status, you would need to wait your 60 months from the date of approval, in other words, that date on the card itself that says “residence since…”. I think that is the words they used, and then the date, add 60 months, and what I referred to as “minus 90 days” is they do permit you to file 90 days before whether it is under the 3-year rule or the 5-year rule, you can always file 90 days before. A word of caution: Be very careful to calculate that it is actually not more than 90 days, even if it was 91 days, you are likely to be denied, not rejected, they would probably fee in and it is a big filing fee, isn’t it Andrea, they would fee it in then how many months it takes to get your appointment for your interview, 6, 9 months later, whatever it is, and when you get to that appointment, you will very likely be denied and then you have to file again. So please be very careful if you want to file as early as possible, it is the 3 year, if it is residence through a US citizen petition or 5 years for everyone else minus the 90 days.

04:54 Andrea Olivos-Kah: You know on the N-400 application for naturalization in part 2, I asked to check the information for eligibility and it states at least 18 years old and option A states I had been a lawful permanent residence of the US for at least 5 years. Option B is I had been a lawful permanent resident of the US for at least 3 years and I have been married to and living with the same US citizen for the last 3 years and my spouse has been a US citizen for last three years.

David Hart: It is interesting Andrea, isn’t, because it does not say …and I obtained residency through the petition.

Andrea Olivos-Kah: Right. That is exactly why I read it to you because it can be misleading.

05:41 David Hart: You know what, we may want to just double check that but I believe that I'm right and if I'm not, then I stand corrected, but I think at least in my experience it is clear that the petition has to be…, and you know, a related question Andrea and tell me what you think about this: Cuban adjustment, if you are the spouse even if you are not from Cuba but you are married to and this is my question, what I think is your spouse let us say a Cuban for you to derive the benefit of Cuban adjustment, your spouse would have to prove that he or she applied for and obtained that residency through the Cuban adjustment act.

06:33 Andrea Olivos-Kah: That would be correct. But you know I'm reading the Kurzban’s, you know some people say that the Kurzban’s was like the Bible for immigration attorneys. But the Kurzban’s states for naturalization requirements besides good moral character, 18 years of age, the third one states that you must normally be a resident continuously for 5 years subsequent to LPS (legal permanent status), and then going down the next paragraph under that same number it says, if married to a USC (US citizen), the residency requirement is 3 years IF the US citizen spouse is a US citizen for 3 years and the parties have been married for at least 3 years. They must be living in marital union with the spouse and it doesn’t say anything about how the legal permanent residency was acquired.

07:25 David Hart: Then let us do this. I think we should look at the statute and then we will post something on it to confirm or amend what we are talking about. So I think if I'm wrong then I stand corrected. Alright Andrea other news of note. I think you were mentioning to me that some interesting postings occurred on the CIS website.

07:56 Andrea Olivos-Kah: They are asking about the receipt notices after that frenzy of filings in July. There has been a lot of delays at the immigration service. For the first time ever I think at least in my experience that the US Citizenship and Immigration Services actually posted on its site a Frequently Asked Questions or FAQ about the delays and what is the cause of the receipt delay? They are saying it is work overload and then there is an interesting question: How does a receipt delay affect my case?, and their answer is, If your case is subject to a receipt delay, this means that USCIS has received your case in its mailroom but has not yet processed your case. This means that your case information has not been entered into the USCIS case management system and the  fee you sent with your application has not yet been deposited. These delays affect USCIS the ability to issue a receipt notice to you and it may also affect the real time it will take to make a decision on your application.

09:01 David Hart: Right. I mean we do that sometimes, don’t we, you can tell when the filing fee is deposited and cashed, then when you see that check clear, you know that the develop has been opened up and they pulled the information or they have entered the information into their database that would then generate the receipt and that obviously means that at some point after that, we don’t know how long it is going to take from the mailroom to let us say the data entry room if you want to distinguish the one from the other to the time when the file actually gets to an officer to open the file and then look at it. All of those things are going to take time and I think tell me Andrea if you agree, obviously the delays take longer than usual, right, because of the amount of filings that occurred during the summer, then I think they probably got so many inquiries, people are worried because as we all know, these cases were, let us say, 99% of them were employment based adjustment of status people who had been waiting a long time and now obviously anyone who is interested or who has a case pending, you know that until a receipt is issued, you don’t have a document that would prove that you have lawful status because you have nothing other than let us say a FedEx receipt or an express mail receipt to prove that you sent it on such and such a day within that time period ending August 17, but you have nothing else. So it is important I think and this press release or posting on the CIS website is really I'm sure is in response to the numerous calls or inquiries that they are getting and then they are basically saying, you know you have to be patient and wait for those receipts. I think every week we get several more of the many filings that we did during the summer. The receipts started to come. We already got people who have notices for approved employment authorization and so the system is working. You know some files are going to get lost, the number of filings they had was huge but I think all in all, the system seems to be working. We will see how long it is going to take for these cases to get to the stage of being adjudicated, approved, request for additional evidence, letters issued, etc., right?

11:44 Andrea Olivos-Kah: Yeah, and you know, the USCIS developed a webpage specifically to respond to queries of applicants that want to know whether their cases are subject to one of these receipt delays and the website is www.uscis.gov/receiptingtimes. So if you go to that website supposedly, it says, It provides general information about your application type and USCIS representatives are available. Now when you go to that page, that USCIS application receiving update page, what it does is it has updated or supposedly updated information about the type of application and the date received. So people can track for example an I-140 in Nebraska was received on August 13 of 2007. So I guess that would mean if you haven’t received your receipt notice yet, you can track it by checking the site. They are saying that they are still continuing to process premium processing cases within 15 days as well as EAD within 90 days that they are reallocating resources so that they are able to process those in 90 days and all the adjustment applications are being prioritize so their main priority is getting to the adjustment of status applications that contain EAD applications.

David Hart: Is this posted today?

Andrea Olivos-Kah: Yes, as of September 28.

David Hart: So it came out today.

13:40 Andrea Olivos-Kah: Yeah, and they completed the initial data entry and issued receipt notices for applications and petitions received on or before the dates indicated so you go down and find your date and then if you haven’t received your receipt notice and your case is filed prior to the date posted on the USCIS site, I think I would start calling or contacting USCIS because yours might be a case were it was lost.

14:06 David Hart: Right. Very interesting. And we will reproduce that CIS posting that comes from their website today and we will post that by Monday on www.immigrateusa.com. Very good Andrea. So very interesting and we will follow up I think let us figure out this 3- or 5- year issue, is this just marriage or the filing had to be…, the more I think about it, the more likely I believe that I'm not right. But we will see.

Andrea Olivos-Kah: First, for many people I hope that you are not.

David Hart: Yes, I agree.

14:48 Andrea Olivos-Kah: You know one other thing that I wanted to add is on the DREAM Act. I don’t know if you saw the news David that there were just too much negotiations to be done in regard to the DREAM Act among republicans mostly because they didn’t like the way that it was presented and there is an amendment to that Defense Department Bill so it is being postponed until November.

David Hart: So the vote to include in the amendment is going to take place some time in November.

Andrea Olivos-Kah: Correct.

15:19 David Hart: Ok. Good. We will follow up with that if there is any more news on the happenings in Washington DC as it relates to immigration. In the meantime, to our listeners, you can send me your emails again as you know anything you wanted to discuss, question, or complain about, at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . And we will be back next week with another edition of Immigration Fridays.

Andrea Olivos-Kah: Bye David.

David Hart: Take care.

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