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.
USCIS has a military hotline for all matters pertaining to immigration and ciizenship for members of the military and their families: 1-877-CIS-4MIL (1-877-247-4645) M-F 8am-4:30pm CST. USCIS also has a useful Q&A feature on its website for members of the military and their families.
B. Family Members With Status Issues
1. Parole in Place
In order to qualify for “adjustment of status” (AOS) to permanent resident while in the U.S., the applicant must be paroled or “admitted” and “inspected.” Many people in the U.S. unlawfully entered without inspection (EWI). Therefore, they cannot file AOS applications and must instead apply at a US consulate or embassy abroad. Leaving the US to attend the interview often triggers a three or 10-year bar to reentry. To avoid waiting the three or 10 years, the person will need a waiver by proving extreme hardship to a qualifying US citizen or green card holding relative. The waiver adjudications are very unpredictable, and issuance cannot be guaranteed. It is hard to predict how long a family will be separated waiting for the waiver and issuance of the visa. For the military, Parole in Place (PIP) is a remedy that many family members need to preserve family unity and address U.S. Department of Defense concerns regarding soldier safety and readiness for duty. PIP is extraordinary and discretionary relief and is really meant for highly meritorious and “clean” cases, but for the EWI status. Although not meant specifically for the military, PIP is a provision of immigration law that has been around for awhile. A potential PIP applicant must balance, however, the risks of stepping forward and announcing unlawful status, with the potential benefit for positive results, so that if granted, the family member can proceed to file for adjustment of status and complete a family based immigration case. Getting the advice of counsel to lay out all the risks and benefits is essential before stepping forward to apply.
Our office handled a PIP request recently. It was paramount to make sure the client understood the ramifications of PIP including the risk of being placed in removal proceedings. Once the PIP request was filed, it was handled expeditiously and very professionally by the USCIS office. PIP is only one part of the process and puts the applicant into the position of having been paroled into the US for adjustment purposes. There still needs to be an underlying approvable family based visa petition. After PIP is granted, the individual then applies for AOS. The applicant must otherwise meet all the usual requirements for AOS – no inadmissible crimes, contagious diseases, fraud, or other problems. There is no formal application for PIP. The petitioning military spouse must prove up his or her status in the military and citizenship status and explain the hardships that will be faced if PIP is not granted to the EWI spouse. The relative needing the PIP must prove he or she has other equities, such as long term residence, US citizen or green card holding relatives, community service, potential medical or psychological issues in the family, and other emotional and/or financial support provided to the military service member. USCIS will require biometrics and proof of the underlying grounds for immigration (a filed or approved visa petition), and likelihood of success.
Theoretically, PIP could be available to someone who is in removal proceedings if counsel for the government will agree to a joint motion to terminate proceedings in order to have the case resolved before USCIS.
As Chair of the Washington Chapter of the American Immigration Lawyers Association, I, along with other AILA chapter chairs, have been monitoring the PIP procedures around the country. Procedures and eligibility do vary across the country because USCIS has not issued a specific memorandum or regulation on PIP procedures to ensure consistency across offices.
2. Cancellation of Removal
Cancellation of Removal (COR) is a form of relief available in removal proceedings. There is one type of COR for non-green card holders who have been in the US for 10 years and prove good moral character plus “exceptional and extremely unusual hardship” to a US citizen or green card holding parent or spouse. Another type of COR applies to green card holders with different requirements. For non-resident COR applicants, the court has to look at the hardship the qualifying relative would face if he or she stayed in the US and the applicant was deported, as well as in the circumstance if the qualifying relative lived abroad with the applicant, if removed. A variety of factors are considered. Generally, COR is difficult to obtain and there is an annual limit on the number of CORs that can be granted. In a recent unpublished case out of New York, the Board of Immigration Appeals held in a very short opinion that the hardship to the military spouse would be exceptional and extremely unusual because the applicant was the sole caretaker of their child while the military spouse was deployed in Afghanistan, and that he would suffer distress if his wife was removed and their child’s status remained uncertain while he was deployed.
3 .Deferred Action
Deferred action means a person ordered removed will not have the removal order carried out immediately. In other words, removal will be deferred, not cancelled. Generally, to get deferred action, there must be outstanding equities in a case. Having an active duty military service family member, especially those on deployment, will be a significant equity for family members in removal proceedings. ICE offices vary around the country about whether there must be a final removal order from a judge in order to grant deferred action. Unlike PIP or COR, deferred action does not result in an immigration status or benefit other than delayed removal.
4. Prosecutorial Discretion
Prosecutorial discretion has to do with the government’s balancing of resources and equities to determine priorities for putting people into removal proceedings. This topic is covered at length in two earlier blog postings discussing prosecutorial discretion. Needless to say, having a family member in the military or having served in the military will be an important equity in any consideration whether to arrest, detain, institute removal proceedings, continue proceedings or carry out a removal order.
5. Private Bills
Private bills are Congressional bills introduced for a specific individual when all else fills or there is not immigration category or program to accommodate a person with extremely unusual and humanitarian needs.
6. Affidavit of Support Benefits
Petitioners of family members must prove they meet certain income guidelines based on household size to ensure that the sponsored immigrant will not “become a public charge.” Form I864, or the Affidavit of Support, requires proof the petitioner (or petitioner with a co-sponsor) earns 125% above the poverty guidelines for the household size. For military families, however, active duty member petitioners need only earn 100% of the poverty guidelines. Furthermore, they may include non-taxable military income such as housing that may not show up in their gross or adjusted gross income on tax returns. This is an important benefit because lower pay grade service members often make salaries below the poverty guidelines, but also receive housing, deployment subsidies and other services or benefits that can be counted as qualifying current income.
Earlier this year, Senators Robert Menendez D-NJ), Harry Reid (D-NV), Richard Durbin (D-IL), Charles Schumer (D-NY), Patrick Leahy (D-VT), Daniel Akaka (D-HI), Michael Bennet (D-CO), and Kirsten Gillibrand (D-NY) introduced the “Military Families Act” that would allow out of status family members to adjust status if their sponsor/petitioner has served honorably in the Armed Forces. Such a bill would do away with the interim step of PIP and would deal with a more narrowly defined population from the DREAM Act. It would behoove our Congress to pass this bill to alleviate unnecessary stress among members of the military and to assure they are ready and focused for service. They deserve not to have to worry about their families considering the sacrifices they and their families make in service to our country.