By: Adam Solow, Esq.

From the Marquis de Lafayette to the Iraqi and Afghan translators today, immigrant soldiers have always fought and often died in the defense American values of life, liberty and the pursuit of happiness.  Immigrant soldiers have been members of the United States Armed Forces in every major conflict throughout our history.  Even today, as some political leaders slander and scapegoat immigrants (even as they allegedly dodged service with an invented medical deferment), there are approximately 40,000 immigrants actively serving their country.  More than 100,000 immigrants have bravely served their country in the last twenty years, at which time the United States has constantly been at war. An average of 7000 legal permanent residents enlist in the military each year,  There are over half a million immigrant veterans, and over 1.9 million veterans who were born to at least one immigrant parent.  In honor of Memorial Day and the sacrifices of our armed forces, we would like to thank all of our soldiers (both native and foreign born) who have given their lives for this country, highlight some immigration programs and regulations that are available to the families of Armed Force members, and explain how policy changes enacted during the Trump Administration have complicated the lives of these brave families.  

Military Parole in Place

United States Citizenship and Immigration Services (USCIS) may grant parole in place on a case-by-case basis for urgent humanitarian reasons or significant public benefit under section 212(d)(5)(A) of the INA.  You may be eligible for parole in place in one-year increments if you are the spouse, widow(er), parent, son or daughter of an:

  • Active-duty member of the U.S. armed forces;
  • Individual in the Selected Reserve of the Ready Reserve; or
  • Individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.

If you entered the United States without authorization (i.e. without inspection over a land border) and are not inadmissible on any other ground (i.e. multiple re-entries, criminal grounds of inadmissibility) you may be eligible for Military Parole in Place.   If you entered the U.S. lawfully but overstayed your visa (or are otherwise in the U.S. past your period of authorized stay), you are not eligible for parole in place because you are not an applicant for admission. However, you may qualify for deferred action. 

If you have been issued a Notice to Appear in Immigration Court (NTA) and are in removal proceedings, you may still be eligible for Military Parole In Place (PIP).  However, instead of filing your PIP request with USCIS, you will need to file your request with Immigration and Customs Enforcement (ICE), who have jurisdiction over such requests for individuals in removal proceedings.  

First in July and then in September of 2019, the Trump administration announced that it would end Military PIP and cut protections for military families.  After this idea was floated in the media, however, the backlash from the military community and general public was so fierce that the Administration mercifully held off on this policy change.  As of today, USCIS is still accepting Military PIP requests.  However, we do not know whether or not the Trump administration will revisit this policy as the country in the future as another way to restrict immigration and while the rest of the country is distracted by the COVID-19 Pandemic. 

Deferred Action

Deferred action is a form of prosecutorial discretion to defer removal action (deportation) against an individual for a certain period of time. If you are granted deferred action, the Department of Homeland Security (DHS) considers you to be lawfully present in the U.S. for the period deferred action is in effect. Deferred action does not give you lawful status, nor does it excuse any past or future periods of unlawful presence.

Under existing regulations, if you are granted deferred action, you are eligible to apply for employment authorization for the period of deferred action if you can demonstrate “an economic necessity for employment.” DHS can terminate deferred action at any time, at its discretion.

You may be eligible for deferred action for up to two years if you are the spouse, widow(er), parent, son or daughter of an:

  • Active-duty member of the U.S. armed forces;
  • Individual in the Selected Reserve of the Ready Reserve; or
  • Individual who (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged.

Expedited Naturalization

Federal law provides certain members of the U.S. Armed Forces the opportunity for expedited citizenship.  Expedited citizenship for military service members waives the continuous residence and physical presence requirements for naturalization, as well as the N-400 filing fee.  Two sections of the Immigration and Naturalization Act (INA) govern naturalization of lawful permanent residents (LPRs) and other immigrants serving in the Armed Forces. Under INA § 328, which applies during periods of peacetime, LPRs can apply for naturalization after one year of military service.  Under INA § 329 and implementing regulations, LPRs and other noncitizens who served honorably during a designated period of hostilities can apply for naturalization once the U.S. Department of Defense (DoD) certifies the member’s service as honorable.  Today, only LPRs can join the US Armed Forces.  Unfortunately, you cannot join the US Armed Forces if you are in a non-immigrant status such as, for example DACA, student visa, or Temporary Protected Status.  

On October 13, 2017, the DoD implemented two key policy changes to the expedited naturalization process for military service members.   The policy changes are: 

1. Background Screenings: Foreign nationals, including LPRs, who enlist in active, reserve, or guard service of the military must now complete their background screening requirements, and receive a favorable background screening (Military Service Suitability Determination (MSSD)) before attending basic training. Before October 13, 2017, eligible noncitizens who enlisted in the military were allowed to start their basic training as long as their background screening requirements were initiated. This screening process can take a year or more as there is currently a backlog of more than 700,000 cases. The effect of this change is that noncitizens who join the military may be stuck in an extended background check process that prevents them from attending basic training, deploying overseas and applying for citizenship. 

2. Completion of at least 180 days of active duty before receiving certifications of honorable service: Foreign nationals, including LPRs, entering service must now complete at least 180 consecutive days of active duty service to be eligible to apply for U.S. citizenship, or at least one year of satisfactory service in the Selected Reserve, with certain exemptions. The Secretary of the applicable Military Department must characterize the member’s service as honorable. Prior to this change, applicants for expedited naturalization could receive a certification of honorable service (USCIS Form N-426) – a required initial step in the application process – after one day of service. 

The Secretary of the applicable Military Department must now also sign the FormN-426 before an applicant can file a naturalization application. There is, however, no current procedure in place to obtain this signature.  (Prior to this change, active duty applicants could submit Form N-426 signed by the commanding officer, local service record holder, or qualified certifying officer).  

In 2019, USCIS also closed field offices abroad, cutting the number of locations that could administer naturalizations while overseas from 23 to only four, further prolonging the naturalization process for service members stationed in foreign countries. 

The effects of these changes have been to greatly slow down the expedited citizenship process.  In 2019, naturalization rates for service members fell an incredible 43% from the previous year.  USCIS naturalized only 4,135 armed forces members in Fiscal Year 2018, compared to 7228, the previous year.  For comparison, USCIS completed 11,230 naturalizations in Fiscal Year 2010. 

Overseas Naturalization for Spouses and Children of Service Members

Under section 319(e)(2) of the INA and 8 U.S.C. section 1443a, a lawful permanent resident (LPR) who is married to a member of the U.S. armed forces can naturalize abroad without traveling to the U.S. In general, to be eligible for naturalization abroad under section 319(e)(2) of the INA and 8 U.S.C. section 1443a, you must:

  • Be the spouse of a member of the U.S. armed forces who is stationed abroad in that capacity;
  • Be authorized to accompany your spouse abroad by your spouse’s official orders;
  • Reside abroad in marital union with your spouse; and
  • Meet the requirements of either section 316(a) or 319(a) of the INA at the time you file your naturalization application.

Likewise, certain children of service members, including certain children adopted by U.S. citizen parents, can become naturalized U.S. citizens under section 322 of the INA without having to travel to the U.S. for any part of the naturalization process. To be eligible for overseas naturalization, the child must appear on the service member’s official orders and live abroad with the service member.

Generally, under section 322(a) and (d) of the INA, a parent who is a U.S. citizen (or, if the citizen parent has died during the preceding five years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the U.S. who has not acquired citizenship automatically under section 320 of the INA. The general requirements are:

  • At least one parent is a U.S. citizen or, if deceased, that parent was a U.S. citizen at the time of death.
  • The U.S. citizen parent or the U.S. citizen grandparent has (or at the time of death had) been physically present in the U.S. or its outlying possessions for at least five years, at least two of which were after the parent or grandparent turned 14 years old.
    • If the parent is a member of the U.S. armed forces and resided abroad on official orders, we treat that time as physical presence in the U.S.
  • The child is under the age of 18 years.
  • The child is residing outside the U.S. in the legal and physical custody of the U.S. citizen parent (or, if the citizen parent is deceased, an individual who does not object to the application).

As expected, the Trump Administration has taken steps to restrict, complicate, and confuse the procedure for expedited naturalizations of family members of US Armed Force members.  On August 28, 2019, USCIS issued a policy alert making it more complicated for children of US service members and government employees living abroad to automatically become US citizens.  Beginning October 29, 2019, children of naturalized US citizens serving in the armed forces who have not lived in the United States for a required period of time, will no longer be considered to have acquired citizenship automatically.  This will put an additional bureaucratic hurdle in front of these military families, as the US service member will now be forced to go through the process of applying to bring their child to the United States.  

MAVNI- Currently Unavailable 

Military Accessions Vital to the National Interest allowed certain non-citizens who are legally present in the United States to join the U.S. military and apply immediately for U.S. citizenship without first obtaining lawful permanent residence. The program was only available to legal aliens holding critical skills—physicians, nurses and experts in certain languages with associated cultural backgrounds.  Authorized by the Secretary of Defense in November 2008, its purpose was to address critical shortages of medical and strategic language personnel in the U. S. Military under Section 504(b)(2) of title 10, United States Code, and whose enlistment was deemed vital to the U.S. national interest

The Trump Administration effectively ended this program in 2018, after enlisting more than 10,400 foreign troops in the past decade.  In shutting down the program, the Trump administration cited national security concerns, despite an advanced vetting process for MAVNI candidates and the fact that not one of the over 10,000 MAVNI recruits has ever been charged with any espionage-related crimes.  

Military Help Line

USCIS has established a toll-free military helpline, 877-CIS-4MIL (877-247-4645, TTY 800-877-8339) and e-mail address at militaryinfo@uscis.dhs.gov exclusively for current members of the military and their families, as well as veterans. USCIS representatives are available to answer calls Monday through Friday from 8 a.m. to 4 p.m. Central, excluding federal holidays.

If you are a service member or an eligible family member stationed in the U.S. or overseas, you may also access the helpline using the toll-free number through their base telephone operator or using the Defense Switched Network (DSN).

On behalf of all of us at SIP Immigration, we stand in awe of the sacrifices our armed forces make to protect the freedoms and liberties we often take for granted.  

Adam Solow, Esq. is a partner at Solow, Isbell & Palladino, LLC. He is licensed to practice law in Pennsylvania and New Jersey.

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