Articles Posted in Military & Immigration

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USCIS has finally released a long awaited policy memo about “Parole in Place” or PIP. PIP is a procedure that permits qualifying family members who entered the U.S. without inspection (EWI), who ordinarily would need to leave the US to process a family based green card abroad, to be able to apply for green cards (adjustment of status) in the U.S., provided USCIS agrees to “parole” the individual. At this Seattle immigration law firm, we have worked on these cases before, and have found the experience helping our military service members to keep their families together quite rewarding.

The general rule is that to apply for adjustment of status in the US, the applicant must have been “inspected and admitted or paroled.” Admission occurs when a foreign national presents a passport with a visa (or no visa if from a visa exempt country) to a US Customs and Border Protection officer (CBP) at a port of entry. The individual is thereby “inspected and admitted” if allowed to proceed into the USA. There are some limited additional “admissions” scenarios for some wave-through type cases, but even these still require that the individual is presented for inspection and is deemed admitted.

Parole is a legal fiction that permits an individual seeking admission at a port of entry to be legally allowed into the US without having been deemed admitted. In other words, the person is deemed still requesting admission or “arriving”, but is given a legal status called parole without having been formally admitted. Thus, ability for a person who entered EWI to get PIP can be extremely advantageous enabling the individual to apply for adjustment of status rather than consular processing a case. For many individuals who entered EWI, they would otherwise be subject to a three or 10-year bar to return and would need a waiver to re-enter earlier than that.

The US Defense Department (DOD) views the troops’ morale and military readiness to be a significant and highly important objective of military preparedness. This includes ensuring that troops are as emotionally prepared and are as stress free as possible so they can focus on their service related jobs. The purpose of PIP is “to minimize periods of family separation, and to facilitate adjustment of status within the United States by immigrants who are the spouses, parents and children of military members.” Servicemen and women, who have family issues such as the threat of deportation to family members, can be extremely stressed out and can suffer from various hardships that impact their military preparedness.

Until the new PIP memo issued on November 15, 2013, (Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act§ 212(a)(6)(A)(i)), adjudication of PIP requests varied around the country. Some local district USCIS offices did not acknowledge PIP at all; many offices had different procedures and outcomes; offices varied as to applicability to active duty versus veterans, and active duty versus Ready Reserves service. The new memo now provides some continuity of policy for all districts to follow. (However, policy memos technically do not have the force of law. Further, the government tends to rely on policy memos when it wants to and ignores them at other times.) The PIP policy memo also reflects President Obama’s practice of using policies and regulations to fix important immigration issues within the bounds of existing statutory rules where Congress has failed to reform immigration laws.
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The Immigrant Legal Resource Center (ILRC) has put out a very useful FAQ on Selective Service registration and military enlistment rules for immigrants of all types (in legal status, not in legal status, permanent v. temporary residents, and DACA recipients). The FAQ also covers basic US citizen and dual citizen requirements. For more information, see also the Selective Service website. All males between 18 through 25 (i.e., under 26) must register for the Selective Service regardless of status. Registering for Selective Service is not the same as whether someone must or is allowed to actually enlist, or would be drafted. Undocumented immigrants may not currently enlist, but they must register. See also the military’s special Military Accessions Vital to the National Interest (MAVNI) Program that allows certain nonimmigrants in valid status to enlist if they have certain language or medical training. The MAVNI program leads to a fast-track route to US citizenship based on military service.

Selective Service registration, military service and related matters are important to eligibility for greencards and US citizenship. At our Seattle immigration law firm, we handle immigration and citizenship related benefits for members of the military and their families, such as services involving “parole in place” and analysis of “needle in a haystack” cases where persons born abroad may have acquired citizenship through their parents or ancestors based on US military service.

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1151913_new_york_2-1.jpgIn 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.
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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.”
 

 
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