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Immigration Issues and the Military: Honoring our Veterans and their Families

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.”
 

 

b. Under Section 329, even just one day of honorable service can qualify a service member for naturalization if the service was during one of the designated periods of hostility:
• April 6, 1917 to November 11, 1918 • September 1, 1939 to December 31, 1946 • June 25, 1950 to July 1, 1955 • February 28, 1961 to October 15, 1978 • August 2, 1990 to April 11, 1991 • September 11, 2001 until the present.
(The president signed an executive order on July 3, 2002, authorizing all noncitizens who have served honorably in the U.S. Armed Forces on or after Sept. 11, 2001, to immediately file for citizenship. This order covers veterans of the designated past wars and conflicts noted above. The current designated period of hostilities starting on September 11, 2001 will terminate when the President issues an Executive Order terminating the period.)

The service member must have served honorably in active-duty status, or as a member of the Selected Reserve of the Ready Reserve, for any amount of time during a designated period of hostilities and, if separated from the U.S. armed forces, the applicant must have been separated honorably. Additionally, the applicant must have been lawfully admitted as a permanent resident at any time after enlistment or induction, OR have been physically present in the United States or certain territories at the time of enlistment or induction (regardless of whether the applicant was admitted as a permanent resident). The English, history and civics requirements apply as well as good moral character and attachment to the Constitution.

A person who obtains U.S. citizenship through military service and separates from the military under “other than honorable conditions” before completing five years of honorable service may have his or her citizenship revoked.

c. Naturalization at Basic Training: USCIS and the Army established the Naturalization at Basic Training Initiative in August 2009 to give noncitizen enlistees the opportunity to naturalize when they graduate from basic training. (The Navy joined the initiative in 2010 and the Air Force began the program a few months ago.) Under this initiative, USCIS conducts all naturalization processing including the capture of biometrics, the naturalization interview, and administration of the Oath of Allegiance on the military base so (in most cases) the recruit is able to graduate from basic training as a U.S. citizen.

Every military installation should have a designated point-of-contact (POC) to handle naturalization applications and Requests for Certification of Military or Naval Service as well as fingerprinting. Service members should inquire through their chain of command to find out who this person is so they can help with the application packet. In some cases with unusual issues, service members may be referred to JAG officers or private counsel to help with complex issues.

USCIS has posted statistics about how many service members have been naturalized and where around the world. 10,000 members were naturalized in the US and abroad during the last year, and another 375 include their spouses and children eligible for expedited naturalization.

2. Posthumous Recognition of Status

Section 329A confers posthumous citizenship upon those members of the military who have died due to injury or disease while serving their country during specified periods of military hostilities, as listed above. The application must be filed on behalf of the deceased service member within two years of his or her death. If approved, a Certificate of Citizenship will be issued in the name of the deceased veteran establishing posthumously that he or she was a U.S. citizen as of the date of death.

3. Prior Service and Impact on Older Veterans and their Descendants

There are a number of statutes that govern veterans of different military conflicts. This becomes a rather complicated area of law where consulting with an experienced immigration lawyer is recommended. Often research has to be done and it can be daunting to obtain old records of military service for relatives. For some foreign nationals, they are surprised to learn they acquired citizenship at birth or derived citizenship based on the military service of parents, grand parents or even great-grandparents. In addition, some of the provisions allow for expedited citizenship for relatives who will be deployed with active duty military or even military contractors or other related U.S. government agencies or international organizations abroad. Our firm has handled several of these cases that often start out as genealogy projects but can lead to possible US citizenship for some individuals who did not realize they have always been US citizens or could naturalize sooner.