Seattle Immigration Lawyer Blog

In an earlier post on Immigration Issues and the Military: Honoring our Veterans and Their Families, I focused on the citizenship benefits for active duty and honorably discharged service members including potential citizenship status on their descendants. This article focuses on how our immigration laws help, or don't help, the dependent family members of our servicemen and women.

Help for Dependents of Military Service Personnel

Today, many members of the military have spouses, children and parents who need assistance with their immigration status. In particular, the Defense Department is concerned about the readiness of service personnel who could be emotionally stressed by the actual or potential deportation of their family members or because of legal immigration applications stuck in the quota system. In other cases, survivors of service members are caught in legal limbo when their petitioners have died. There are a couple of programs that can help these family members:

A. Survivor Benefits

There are two types of benefits for 1) survivors of deceased US citizen service members and 2) survivors of deceased non-US citizen service members.

1. Survivors of US citizen service members - Permanent Residence
Spouses, minor unmarried children and parents may immigrate as "immediate relatives" of the service member spouse who served honorably in active-duty status in the U.S. armed forces; and the service member spouse died as a result of injury or disease incurred in or aggravated by combat. In the case of spouses, the couple must not have been legally separated at the time of the service member's death, and the surviving spouse cannot remarry prior to obtaining permanent residence based on the relationship to the deceased U.S. Citizen spouse. For the spouses, children or parents, the petition for an immigration benefit must be filed within two years of the service member's death.

2. Survivors of US citizen service members - Citizenship
Spouses, minor unmarried children and parents of a deceased US citizen service member may be eligible for naturalization under relaxed standards. The deceased relative must have died as the result of his or her honorable service, including a service member granted posthumous citizenship, and in the case of a surviving spouse, was living in marital union with the citizen service member spouse at the time of his or her death. The surviving spouse, child, or parent must meet the general naturalization requirements, except for the residence or physical presence requirements in the United States. Surviving spouses must not have been legally separated at the time of the service member's death, but the surviving spouse remains eligible for naturalization under this provision even if remarried since the service member's death.

3. Survivors of non-US citizen service members
Relatives of green card sponsors are subject to the preference categories or quota. If the deceased service member had permanent residence or a green card, and had filed a visa petition for his or her spouse or child, the spouse or child may file a self-petition as an immediate relative without regard to the quota which applies generally to all family based immigration categories that are not immediate relatives. Many of the categories are considerably backlogged, so this provision is exceptional in taking the surviving family members outside the quota system, as is the case for immediate relatives (parents, spouses and children of US citizens). The requirements are that the deceased service member:
• Served honorably in an active duty status in the military, air or naval forces of the United States
• Died as a result of injury incurred in or aggravated by combat,
• Was granted posthumous citizenship.
Thus, the surviving spouse, child or parent applies for adjustment of status (permanent residence) based on his or her relationship to the service member prior to his or her death, and the case will be treated as if the service member had not died.

Continue reading "Immigration Issues and the Military: Part Two - Benefits for Family Dependents" »

How do our immigration laws help (or hurt) our members of the military and their families? There are several programs that expedite citizenship for those who have honorably served in the military. Other programs help families with lawful permanent residence (green cards) and expedited citizenship. This firm has had the honor to handle a number of military related immigration and citizenship cases. Even the show "Army Wives" has an episode devoted to the issue of immigration problems of a deployed Army wife. Other examples abound in the media. Washington State is home to several military bases where many families have at least one immigrant relative. Immigration issues commonly arise in the military, many of a complex nature requiring help from an immigration lawyer. This article will be posted in two parts. This part focuses on benefits for active duty or honorably discharged members. The subsequent post will focus on benefits for family dependents.

Who can join the military?
The Selective Service statute makes it "the duty of every male citizen of the United States, and every other male person residing in the United States, who...is between the ages of eighteen and twenty-six, to present himself for and submit to registration." See www.sss.gov. This statute does not apply to any nonimmigrants maintaining lawful status such as F-1 foreign students, J-1 exchange visitors, H-1B temporary workers, or others set forth in the nonimmigrant immigration statute. However, since the statute does apply to any male residing in the US, even those who are not US citizens, that means undocumented immigrants must register. Registration is does not mean enlistment, however. The purpose of registration is in the event there is a draft because there are insufficient volunteers who have enlisted. There are a number of laws affecting what would happen if the draft is called up and how that would apply to undocumented individuals.

Voluntary enlistment rules are much more complicated. For the most part, enlistees must be US citizens or lawful permanent residents. In some cases, legal but non-US citizen or legal non-permanent residents may enlist. In 2009, a pilot program ran called "Military Accessions Vital to the National Interest" (MAVNI) to promote enlistment of 1000 lawfully present individuals, not having green cards or citizenship, but who had special skills such as medical training and language skills. This successful program attracted the most highly qualified and skilled individuals such as certain nonimmigrants and asylees. However, the program expired and many people are petitioning the government to reinstitute MAVNI. In sum, to enlist, one must have legal status. Undocumented individuals must register but may not voluntarily enlist for the most part at this time. The DREAM Act, had it passed the Congress, would have allowed those without papers to enlist if they applied for status under DREAM.

Military Related Immigration Benefits
The Immigration Statutes allow for expedited naturalization, posthumous naturalization, and immigration benefits for spouses, parents and children of US and green card holding military service members.

1. Expedited Naturalization
Qualifying members of the military service can obtain expedited naturalization under two statutes. Service must be in the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard, and certain components of the National Guard and the Selected Reserve of the Ready Reserve. Active duty members can apply for naturalization in the U.S. or abroad. Some of the usual requirements for naturalization are minimized or waived for qualifying service members as noted below. The filing fee and biometrics fees are waived.

Normally, applicants for naturalization must prove they: 1) are at least 18 years old; 2) are lawful permanent residents for three or five years prior to filing, depending upon the category, 3) with half of that time (1.5 or 2.5 years) being physically present in the U.S., 4) are of good moral character, 5) are able to speak, read and write English and pass a civics and history exam, 6) are attached to the principles of the U.S. Constitution, 7) and they must pay the $680 biometrics and filing fee.

a. Section 328 requires the applicant to have served honorably in the U.S. armed forces for at least one year and, if separated from the U.S. armed forces, must have been separated honorably. In addition, the applicant must be a permanent resident at the time of examination on the naturalization application, be able to read, write, and speak basic English and pass the history and civics exam, be a person of good moral character, and attached to the Constitution. However the residence/physical presence requirement is waived if the applicant files for naturalization within six months of separation. This provision is sometimes called "Peace Time Service."

Continue reading "Immigration Issues and the Military: Honoring our Veterans and their Families" »