Denial, Withdrawal, and Appeals


General Grounds of Denial

These grounds are the most familiar to many of us, because we spend so much time assessing whether an applicant is eligible to file his/her application based on this criteria. Hopefully most of us are not seeing denial of applications for the majority of these grounds, but it is always good to look at the eligibility grounds from a different perspective.

1. Failure to Establish Lawful Admission for Permanent Residence

A person must have acquired their LPR status by way of all applicable laws. The applicant must show that he/she entered the U.S. lawfully, and the time and place he/she entered the U.S. The applicant may use his/her immigrant visa or any other entry document.

2. Failure to Establish Continuous Residence

An applicant must have lived in the U.S. for at least 5 years (or 3 years) before filing a naturalization application. The applicant shows this by listing his/her addresses and dates for the past 5 years on the application. USCIS may ask for additional information if there are any gaps in residence.

3. Failure to Establish Physical Presence

Applicants must be physically present in the U.S. for at least half of the requisite time. This means that an applicant cannot have taken too many trips outside of the U.S. or remained abroad for an extended period of time. For 5 years, an applicant should be in the U.S. for at least 912 days and for 3 years, at least 547 days.

4. Failure to Establish 3 Months of State/District Residence

An applicant must have lived in the state or USCIS district where he/she is filing his/her application for at least 3 months. Although state residence is self-explanatory, some applicants may still qualify to file if he/she has recently moved to the state but lived within the same USCIS district previously.

Practice Tip: Massachusetts sits within District 1, which also covers Maine, New Hampshire, and Rhode Island. A complete listing of USCIS Districts can be found here (uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagements/2011/December%202011/District%20Office%20Mailing%20Addresses.pdf).

5. Failure to Establish Good Moral Character

An applicant must be able to show good moral character during the statutory period, although USCIS may look beyond the 5 years/3 years to make a determination of whether the applicant can be found to have good moral character. If an officer finds that a person does not have good moral character, his/her application will be denied. Absent any other incidents, he/she should be eligible to submit another application once the statutory period is clear of any incidents.

Permanent Bars: murder conviction or aggravated felony conviction after 11/29/1990.

Statutory Bars: one or more CIMTs; aggregate sentence of 5+ years; controlled substance violation; confinement to a penal institution to 180+ days; false testimony to obtain an immigration benefit; prostitution; smuggling of persons; polygamy; conviction of 2+ gambling offenses; habitual drunkard.

6. Failure to Establish Attachment and Favorable Disposition to the Good Order and Happiness of the U.S.

Attachment to the U.S. Constitution means that the applicant actively supports and has deep faith in the principles of the Constitution. This requirement assesses an applicant’s mental attitude towards the United States, and is aimed to exclude those who do not belief in the government of the U.S. An applicant should also be willing to obey all laws and accept the form of democratic representation that exists. Membership in certain organizations (Communist Party, totalitarian organization) calls into question an applicant’s ability to establish attachment to the U.S. Constitution.

Practice Tip: The exception to membership in these groups is that the applicant’s involvement was involuntary. The applicant should provide a detailed statement about periods of membership, any offices held, and an explanation of why the membership was not voluntary.

7. Failure to Establish a Basic Understanding of English

An applicant must exhibit a basic understanding of English, including the ability to read and write, unless exempt due to age and length of residence, or due to a medically determinable disability or impairment.

8. Failure to Establish Knowledge of U.S. History and Government

Unless a person submits a medical disability waiver that is accepted by USCIS, he/she is required to verbally answer a set of questions regarding U.S. history and government. This can be conducted in a person’s native language if he/she is exempt from the English language requirement.

9. Failure to Establish Lack of Prosecution

This grounds of denial may be the most unfamiliar. This means that once an applicant submits his/her application, he/she can only withdraw it with permission from the Attorney General. Withdrawal is discussed below, but an applicant may choose not to “prosecute his/her application,” meaning he/she does not pursue the process (e.g. does not appear for scheduled appointments, does not submit further requested evidence, etc.). The Attorney General may choose to dismiss the application for lack of prosecution.

Withdrawing a Naturalization Application

If an applicant decides to withdraw his/her application, he/she must request the withdrawal in writing. A person may withdraw for if they do not feel prepared for the interview or if they are no longer eligible due to a criminal incident or failure to meet another requirement. If a person decides to withdraw, USCIS must inform the applicant that they are giving up the ability to act on the current application at any time in the future. This means that a person cannot change his/her mind about withdrawal and go forward with the application if the withdrawal was approved. It is at the discretion of the Attorney General whether to permit the withdrawal.

  • If accepted, the applicant may submit a future application and the withdrawal will not give negative implications to the later application.
  • If the withdrawal is not accepted, the immigration officer will decide the application based on its merits (the information provided in the application).
  • Practice Tip: Attached is an example of a withdrawal letter and a response from USCIS accepting the applicant’s withdrawal. (The letter was written when immigration was still under the Department of Justice as INS).

Appealing a Denial

If an applicant’s naturalization application is denied after the interview, the applicant has the opportunity to appeal his/her decision if he/she believes that USCIS made the incorrect determination. The denial notice will contain information about where to file the appeal and whether the decision may be appealed. Generally, decisions made by USCIS may be appealed to the USCIS Administrative Appeals Office or the Board of Immigration Appeals (BIA), depending on the type of denial.

Appeals of an N-400 should be made on Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (uscis.gov/sites/default/files/files/form/n-336.pdf).

  • An appeal must be filed within 30 days of receiving the denial decision.
  • A copy of the denial must accompany the N-336.
    • The applicant may also submit documentation to support the request.
  • The fee is $650, but an applicant may submit a fee waiver using I-912.
  • The applicant will be scheduled for an interview within 180 days of submitting his/her request.