Immigration Law Associates
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The Military and the Immigrant: Possibilities and Complications

Posted on Wednesday, March 6, 2019

Several benefits are available to immigrants who enlist in the military and their families. Between 2011 and 2018, a special program allowed certain DACA participants and certain persons holding non-immigrant visas and to enlist, but that program (MAVNI) has essentially been discontinued. Green card holders, however, may still gain substantial immigration benefits if they enlist and meet other requirements.

One primary benefit is “expedited citizenship.” Anyone who enlisted and served after September 11, 2001 falls under the guidelines for service during hostilities. These provide that anyone who has had a day or more of honorable active service is eligible to apply for citizenship. Moreover, the normal residence and continuous presence requirements are waived if the application is timely filed. However, the individual must meet all other requirements for citizenship, including being of “good moral character” and passing the civics exam. For people who served during peacetime, the period of required honorable service is one year.

An immigration benefit available to many undocumented spouses or children of U.S. citizen military personnel is “parole in place.” Under this arrangement, family members who entered the U.S. unlawfully are treated for purposes of the Green Card application as if they had entered legally. If they meet all other requirements for approval, they may file their Green Card application from within the U.S. and receive the card in the mail. They need not leave the country. However, this provision will not cure problems other than unlawful entry: fraud or a criminal history or anything else adverse the government may find in the record will still be a barrier to approval.

One reason these benefits are extended to military personnel is that they put their lives at risk; unfortunately, some lose their lives. In that case, an application for posthumous citizenship can be filed on behalf of the deceased service member by a representative. If the application is approved, the individual is declared a U.S. citizen retroactively to the day of his or her death. Further, the law provides for the naturalization of the surviving spouse of a U.S. citizen who died while serving honorably in an active-duty status in the armed forces of the United States. No prior residency or physical presence in the United States is required to file a naturalization application under these circumstances.

In 2017, the Trump Administration implemented a policy delaying the start of basic training for non-citizen recruits until their background checks had been completed. As this significantly delayed their entry into military careers, they sued as a class, and won a stay of the policy. As of November 2018, the Department of Defense was again allowing non-citizens to begin basic training at the same time as other recruits. However, the decision is under appeal, so the delay may be re-instituted at some point in the future.

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