U.S. Citizenship Through Military Service and Options for Military Relatives

U.S. Citizenship Through Military Service and Options for Military Relatives

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April 29, 2022
U.S. Citizenship Through Military Service and Options for
Military Relatives
Overview
(TPS), beneficiaries of the Deferred Action for Childhood
Arrivals (DACA) policy, or in certain nonimmigrant
Obtaining U.S. citizenship provides certain benefits to
categories. The MAVNI program, as implemented, did not
immigrants, including the right to vote, security from
allow for the enlistment of aliens who were unlawfully
deportation, and eligibility for a U.S. passport. Congress
present in the United States.
has provided opportunities for citizenship through
qualifying military service since the Civil War. The
MAVNI enlistees who then met the conditions for
Immigration and Nationality Act (INA) specifies provisions
expedited naturalization through military service could
for expedited naturalization through military service during
immediately apply for U.S. citizenship. Following DOD’s
peacetime and periods of military hostilities. It also
establishment of new security screening requirements on
provides certain considerations for servicemembers’
September 30, 2016, the military services stopped accepting
spouses, children, and parents.
new applicants to the MAVNI program.
In recent years, some Members of Congress have expressed
Naturalization and Military Service
concern regarding the deportation of noncitizen U.S.
Typically, foreign nationals seeking to naturalize must have
veterans who were honorably discharged from the U.S.
resided continuously as LPRs in the United States for five
military, did not apply for naturalization, were charged with
years; provide evidence of “good moral character” (GMC);
deportable offenses, and were removed to their countries of
demonstrate English proficiency, knowledge of U.S. history
origin. Recently, the Department of Homeland Security
and civics, and an attachment to the principles of the U.S.
(DHS) has announced certain initiatives addressing such
Constitution; and take an oath of allegiance to the United
concerns.
States. Ordinarily, if an individual is in removal
proceedings, U.S. Citizenship and Immigration Services
Some Members have also raised concerns regarding the
(USCIS) cannot adjudicate the naturalization application.
potential deportation of servicemembers’ relatives as a
“threat to military readiness.” The
USCIS processes naturalization applications for a $725 fee
executive branch offers
(including a biometric fee).
discretionary immigration options for relief from removal
for certain relatives of servicemembers on a case-by-case
The INA exempts members of the military and former
basis under authorities designated by Congress.
servicemembers from some of these requirements.
Eligibility to Join the U.S. Armed Forces
Noncitizen current or former servicemembers may be
exempt from the requirement for five years of continuous
In accordance with federal law, U.S. citizens, noncitizen
U.S. residence (see “Military Service During Peacetime”
nationals (individuals born in American Samoa and Swains
and “Military Service During Hostilities” below for more
Island), and lawful permanent residents (LPRs) are eligible
details) and are not required to pay naturalization fees.
to enlist in the U.S. Armed Forces and be appointed as
officers. Persons from Micronesia, the Marshall Islands,
The INA also waives the provision prohibiting the
and Palau are also eligible to enlist. There is also legal
naturalization of a person in removal proceedings for
authority for those who do not fall into these categories to
certain current and former servicemembers. Naturalization
enlist in certain circumstances.
may be revoked if the servicemember is discharged under
The Military Accessions Vital to the
other than honorable conditions before having served
National Interest (MAVNI) Program
honorably for a total of five years.
While federal law generally limits enlistment in the U.S.
Under the INA, naturalization requirements, including for
Armed Forces as described above, it allows the appropriate
continuous residence, differ depending on whether service
Service Secretary to authorize enlistment of those who do
occurred during peacetime or during periods of military
not meet such requirements in certain circumstances (10
hostilities as designated by executive order.
U.S.C. §504(b)(2); prior to August 13, 2018, the Secretary
Military Service During Peacetime
had to determine the enlistment was vital to the national
To naturalize during peacetime under INA Section 328,
interest; the language was then amended to be somewhat
servicemembers must have served honorably for at least
more restrictive). This provision was the statutory basis for
one year, be at least 18 years old, and be an LPR at the time
the MAVNI program that was authorized by the
of examination of the naturalization application. The
Department of Defense (DOD) in 2008. As implemented,
applicant must demonstrate GMC for at least five years
the MAVNI program allowed the military services to
prior to filing their application. Those who apply while in
recruit certain lawfully present aliens whose medical skills
service or within six months of a discharge under honorable
and language expertise were deemed vital to the national
conditions are exempt from residence and physical presence
interest. Applicants at the time of enlistment had to be
asylees, refugees, holders of Temporary Protected Status
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U.S. Citizenship Through Military Service and Options for Military Relatives
requirements. The service branch determines whether the
Government Accountability Office found in 2019 (GAO-
service and discharge were under honorable conditions.
19-416) that ICE did not “consistently adhere” to these
Military Service During Hostilities
policies before placing former servicemembers in formal
removal proceedings.
Under INA Section 329, during periods of hostilities
designated by executive order (e.g., the War on Terrorism
In July 2021, DHS and the Department of Veterans Affairs
starting on September 11, 2001, and Persian Gulf Conflict
released a statement announcing a review of policies and
from August 2, 1990 to April 11, 1991), servicemembers
practices “to ensure that all eligible current and former
may apply for naturalization immediately upon establishing
noncitizen service members and the immediate families of
honorable service. They may be any age (individuals may
military members are able to remain in or return to the
enlist at age 17 with parental consent) and are not required
United States, remove barriers to naturalization for those
to be LPRs if they were physically present in the United
eligible, and improve access to immigration services.” In
States, the Canal Zone, American Samoa, or Swains Island,
November 2021, DHS issued related policy guidance
or on board a public U.S. vessel at the time of their
regarding naturalization for servicemembers, including
enlistment or reenlistment. The applicant must demonstrate
deported former servicemembers. The guidance provides,
GMC for at least one year prior to filing their application.
 an applicant who was separated under honorable
Applicants who file based on service during hostilities are
conditions after a qualifying period of service may be
exempt from continuous residence and physical presence
eligible for naturalization under INA Section 329 even if
requirements. Those separated from service must have been
they received a different type of discharge from a
discharged under honorable conditions.
separate period of service;
Spouses and Children of Military Members
 former servicemembers residing abroad may file an
Spouses must be LPRs to be eligible for naturalization. In
Application for Naturalization together with an
general, LPR spouses of U.S. citizens may qualify for
Application for Travel Document without a fee to obtain
naturalization after three years of marriage under INA
an advance parole document allowing them to enter the
Section 319(a). Those spouses who are authorized to
United States to attend a naturalization interview;
accompany a servicemember deployed or stationed abroad
 USCIS may interview a former servicemember seeking
may be exempt from U.S. residence and physical presence
naturalization under INA Section 329 at a land port of
requirements under INA Section 319(b) or (e). Children
entry (POE); and
generally automatically acquire citizenship through their
 if an application for naturalization under INA Section
naturalized parent under INA Section 320 (residing in the
329 is approved after an interview, the applicant may be
United States) or may apply for naturalization under INA
administered the Oath of Allegiance and become a U.S.
Section 322 (residing outside the United States). Children
citizen at the POE.
residing with a U.S. citizen servicemember parent stationed
outside of the United States may automatically acquire
Discretionary Immigration Relief
citizenship under INA Section 320(c) under certain
Available to Certain Military Family
circumstances.
Members
Posthumous Naturalization
The executive branch offers certain discretionary options
for immigration relief on a case-by-case basis to certain
The INA also provides for posthumous naturalization when
military family members who may be removable from the
the servicemember’s death resulted from serving while on
United States.
active duty during any designated period of hostilities.
Surviving LPR spouses, children, and parents of a deceased
The DHS Secretary may parole noncitizens into the United
servicemember may be eligible for naturalization and are
States under INA Section 212(d)(5)(A) for urgent
exempt from residence and physical presence requirements if humanitarian reasons or significant public benefit. Under
they meet the requirements of INA Section 319(d).
that authority, parole in place (PIP) may be granted in one-
Deportation of U.S. Military Veterans
year increments to parents, spouses, widow(er)s, sons, and
daughters of individuals serving in active duty or in the
DOD has taken steps within its service branches to identify
Selected Reserve of the Ready Reserve, or such relatives of
noncitizen recruits and ensure that they are aware of
individuals who formerly served in active duty or in the
eligibility for naturalization through military service upon
Selected Reserve (provided that the former servicemember
enlistment and at separation, and have access to the proper
was not dishonorably discharged). PIP is only available to
forms and instructions to apply for naturalization.
noncitizens who are present in the United States without
LPRs who do not naturalize may be deported from the
having been admitted and thus are applicants for admission.
United States for a variety of reasons. INA Section 237
Parents, spouses, widow(er)s, sons, and daughters of such
specifies broad grounds of deportability, including for those
current and former military members who were admitted to
who were inadmissible at the time of their U.S. entry, pose
the United States but are present beyond their period of
security risks, or are convicted of certain criminal offenses.
authorized stay are not eligible for PIP because they are not
Immigration and Customs Enforcement (ICE), the DHS
applicants for admission. However, they may request
agency responsible for arresting and removing deportable
deferred action, a form of prosecutorial discretion that
noncitizens, has policies regarding the treatment of
defers removal.
potentially removable former servicemembers, including
requiring additional documentation and management
Holly Straut-Eppsteiner, Analyst in Immigration Policy
approvals prior to initiating removal proceedings. The U.S.
Lawrence Kapp, Specialist in Military Personnel Policy
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U.S. Citizenship Through Military Service and Options for Military Relatives

IF12089

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