Hidden Immigration Benefits for Military Personnel

Vol. 30 No. 5

By

Margaret D. Stock (mstock@americanlaw.com) is Counsel to the Firm at Cascadia Cross-Border Law in Anchorage, Alaska. A member of the Alaska Bar Association and a retired lieutenant colonel in the U.S. Army Reserve, Military Police Corps, she is the author of Immigration Law and the Military (American Immigration Lawyers Association, 2012).

Many people are surprised to hear that members of the U.S. military and their families have issues with the U.S. immigration system. Considering, however, that the U.S. military is deployed in more than a hundred countries around the world, that military members often meet and marry foreigners, and that the military itself recruits non-citizens to fill its ranks, it should not be difficult to understand that military members and their families must deal with immigration and citizenship matters on a regular basis. The complex U.S. immigration system impacts military members and families just as it impacts everyone else—although there are some special laws, regulations, and policies that provide different treatment for military members, veterans, and their families.

Requirements for Enlistment

Having the proper immigration status is of course a basic requirement for enlistment in the U.S. military. Generally speaking, the armed forces require enlistees to be U.S. citizens, U.S. nationals, or lawful permanent residents (“green card” holders), although there are exceptions for citizens of the Republic of the Marshall Islands, Palau, and Micronesia, who may enlist owing to a treaty between the United States and their countries. Some foreigners who are present legally in the United States and have a valid Social Security Number may enlist if their enlistment is “vital to the national interest”; one such enlistee, Saral Shrestha of Nepal, a former computer science student at the University of Nebraska, became the U.S. Army Soldier of the Year for 2012 after enlisting while in foreign student status.

Unauthorized immigrants are not permitted to enlist in the U.S. Armed Forces—although they are required to register for Selective Service and are subject to the military draft, if there is one.

Naturalization Procedures

Once lawfully enlisted in the military, non-citizens are eligible to naturalize as U.S. citizens more rapidly than their civilian counterparts. Two separate laws allow for a “wartime” military naturalization procedure as well as a “peacetime” military naturalization procedure.

Under the wartime statute, Immigration and Nationality Act, Section 329, any non-citizen who serves honorably during specified periods of conflict may naturalize as a U.S. citizen, even if he or she does not yet have a green card. This law allows enlistees to naturalize almost immediately upon joining the military if they serve during a specified period of conflict. The post-9/11 period of conflict allows for these expedited naturalizations as a result of an executive order issued by President George W. Bush; since 2009, the U.S. Army, Navy, Air Force, and Marine Corps have therefore facilitated the naturalization of most recruits upon graduation from basic training (the Coast Guard, although it is one of the five branches of the armed services, does not yet have boot camp naturalizations). To be eligible for expedited wartime naturalization, an enlistee must be serving on active duty or in the Selected Reserve (including the National Guard of the United States). Since 9/11, more than 85,000 non-citizens have naturalized through service in the military under this law and its corresponding executive order.

The peacetime naturalization law, Immigration and Nationality Act, Section 328, allows anyone with a green card and one year of military service to naturalize, even if he or she has not served on active duty or in the Selected Reserve.

Under both the wartime and peacetime naturalization laws, the person naturalized can lose his or her citizenship if he or she fails to serve honorably for a period or periods aggregating five years. The five years of honorable service necessary to retain citizenship need not be all active duty service but can include any Reserve or National Guard service. Persons applying for naturalization under these statutes must demonstrate a year of “good moral character” and must pass a civics and English test. Unlike other immigrants, they may also naturalize even if the government has brought deportation or removal proceedings against them; if their naturalization application is granted, the deportation or removal proceedings are terminated.

President Bush’s 2002 executive order declaring that immigrants in the military were eligible for expedited naturalization also triggered the application of another statute: Immigration and Nationality Act, Section 329A, which allows for posthumous U.S. citizenship to be granted to non-citizens who are serving honorably on active duty during periods of conflict when they die “as a result of injury or disease incurred in or aggravated by” military service. A deceased immigrant may be granted posthumous citizenship under this statute regardless of his or her immigration status, and the granting of posthumous citizenship can confer immigration benefits on his or her parents, spouse, and children. The next of kin or other approved representative of the deceased must file an application for posthumous citizenship within two years of the date of the death.

The military services themselves do not accept and approve applications for military naturalization and posthumous citizenship. Instead, the U.S. Department of Homeland Security, through its sub-agency the U.S. Citizenship and Immigration Services (USCIS), accepts and processes the applications; USCIS also works cooperatively with the military to schedule military naturalization ceremonies, which may be conducted anywhere in the world.

Military family members also benefit from special laws that allow for their overseas naturalization when they are accompanying a military member on an overseas tour of duty. Spouses and children of service members often participate in overseas naturalization ceremonies alongside service members.

Obtaining Lawful Permanent Residence

With regard to obtaining a green card, the picture is more complicated. Most military family members must apply for lawful permanent residence just like the family members of any other U.S. citizen or permanent resident; typically, this means that they must be sponsored by the military member, who must meet certain income requirements and must file a visa petition for them. If the sponsoring military member is a U.S. citizen and the family member is a spouse, parent, or child and has entered the United States lawfully, the family member can often “adjust status” and obtain a green card without leaving the United States. Applicants for green cards, however, are subject to a wide range of “inadmissibility” grounds and can be deemed ineligible if they have a criminal record or other problem that renders them “inadmissible” under U.S. immigration laws. At this writing, there are no special waivers of the grounds of inadmissibility for military family members—although Democratic Congressional Representative Mike Thompson of California has proposed a bill, HR 932, the Support and Defend Our Military Personnel and Their Families Act of 2013, which would grant certain waivers to military family members.

Many military family members are unable to adjust status because they have entered the United States unlawfully in the past. Current law requires them to leave the United States to seek an immigrant visa—but once they depart to seek a visa after having been in the United States unlawfully for more than a year, the law bans them from coming back to the United States for ten years. Waivers of this ten-year bar are difficult to obtain, and immigration authorities have denied them to military family members. Accordingly, in 2010 Secretary of Homeland Security Janet Napolitano advised members of Congress that the Department of Homeland Security would provide special administrative remedies to military families, including “parole in place,” deferred action, and joint motions to reopen old deportation or removal orders. These remedies would assist military families in adjusting status in the United States so that the family members would not have to depart the United States and wait overseas (often in dangerous places) for visa processing.

The parole-in-place program has been very successful. Under the program, immigration authorities grant an immigration parole to military family members so that they do not have to leave the United States in order to obtain lawful status. Once parole has been granted, the immediate family members of a U.S. citizen military member can file one-step adjustment applications and obtain green cards if they are otherwise qualified to do so. Unfortunately, not every immigration office is aware of the parole-in-place program, and a lack of any nationwide, written policy has led to inconsistencies in agency adjudications. Many military family members have had to struggle to obtain assistance from the immigration agencies when it comes to parole in place. Some have also been advised (wrongly) that they must leave the United States to obtain a green card, or that they are not eligible for parole in place because their military sponsor is a member of the National Guard or is not serving in a combat zone. In fact, Secretary Napolitano told Congress in writing that parole in place is available to the parents, spouses, and children of all military members, not just those on active duty or those serving in a combat zone.

Immigration Benefits for Family Members

The National Defense Authorization Act of 2004 created special immigration benefits for certain “immediate family members”—spouses, parents, and unmarried children—of deceased military members. Under this law, these family members may continue to process for immigration to the United States despite the death of their loved one. They may also naturalize in an expedited fashion. These benefits only apply, however, if the military sponsor is killed in combat or dies of a combat-related injury. Family members must file a form with USCIS within two years from the date of death in order to claim these benefits.

Other immigration benefits are available to the immediate relatives of military members who are currently serving. For example, once military family members have obtained lawful permanent residence, they are often eligible for expedited naturalization or overseas naturalization. A military spouse with a green card can apply for naturalization as a U.S. citizen immediately if he or she is on family member orders to accompany a military member on an overseas tour of duty. A spouse will also not be deemed to have “abandoned” his or her residence in the United States when the spouse has proceeded overseas with the military member, as long as the spouse is on family member military orders to live overseas with the military member. When the spouse is on military orders, time spent overseas can be counted for purposes of naturalization, and the spouse can even be naturalized overseas. The opportunity to naturalize overseas is not accorded to most green card holders who naturalize, but only to military members and their families.

Resources

Military members, veterans, and military family members can avail themselves of a wide range of resources designed to assist them with immigration and citizenship issues. USCIS maintains a special e-mail address (militaryinfo.nsc@dhs.gov) and customer service hotline (877/CIS-4MIL or 877/247-4645) for military members and their families, and has unique web pages (uscis.gov/military) designed especially for them. That said, a caution is in order—U.S. immigration and citizenship laws are excessively complicated, and unless the information source is expert, the advice may not be accurate. Website information and forms programs should be relied upon only when an expert has confirmed their accuracy. The American Immigration Lawyers Association does offer pro bono legal services for military members, veterans, and their family members; people interested in applying for help should go to aila.org/military. Attorneys interested in volunteering for a military-related immigration pro bono case can use the same website to volunteer.

Advertisement

  • About GPSolo magazine

  • Subscriptions

  • More Information

  • Contact Us