The Intersection of Military Service and U.S. Immigration

Writing a blog is an exercise in conveying useful or interesting information without making it too long or going too much into the weeds. This blog is especially challenging because I will attempt to do a “survey” of the ways that immigration issues are affected by military service. This blog will be long and incomplete but hopefully will be useful or interesting to my readers.

Eligibility for Military Service for Non-citizens

In the recent past, there was a Military Accessions in the National Interest program (MAVNI) that allowed nonimmigrant, non-citizen persons with specific skills (including language skills or healthcare skills) to enlist in the military and then obtain citizenship, but that program is not currently accepting applications.

To be eligible to enlist in the U.S. Military, the person must be a legal permanent resident (green card holder). Upon enlistment, they are limited to one service term and are not eligible to be a commissioned officer until they obtain U.S. Citizenship

Special provisions regarding naturalization for veterans and current military service members

Naturalization generally requires that a person must reside in the U.S. as a legal permanent resident for a continuous period of 5 years (3 years if married to a U.S. citizen) and be physically present in the U.S. for more than half of the required residency. These residence and physical presence requirements are waived if a person has honorably served in the military for at least one year at any time. These requirements are also waived for a person who has honorably served or is currently serving during a designated period of hostility which includes, but is not limited to, anytime since Sept. 11, 2001.

A filing fee (normally $ 725 for naturalization) is not required for U.S. service members and the process may be expedited. Many military installations have a designated USICS liaison to assist service members with the naturalization application process.

By obtaining U.S. citizenship the military service member would be allowed to reenlist for more than one service term and may become a commissioned officer.

Legal residents who are not citizens may petition for spouses, minor and unmarried children but not for parents, married adult children, or siblings. Citizenship opens up the possibility of applying for residence for additional family members such as parents, married adult children, and siblings.

Deportation of service members and their families

A U.S. citizen can not be deported for being convicted of any crime, but legal permanent residents can be deported if convicted of serious crimes. Immigration law considers the possession of more than 30 grams of marijuana to be a deportable offense despite this being legal in some states.

At the beginning of June, the Biden administration directed ICE to generally avoid deporting military veterans and their families (parents, spouses, and children) absent significant aggravating factors being present.

For the veterans and current service members, the new policy instructs ICE personnel to consider the years of service, deployment in a conflict zone, wartime metals, the type of discharge, any injuries suffered in battle, post-traumatic stress disorder, or sexual trauma during service and other factors. This new policy may help those with criminal convictions that might have stemmed from post-traumatic stress disorder after combat.

Some family members of veterans and active-duty service members may not have legal status and may be deportable despite having no criminal record. The recent policy directive asks ICE agents to refrain from deporting immediate family members of those with U.S. military service.

Parole in Place for family members

While a U.S. citizen (whether born in the U.S. or naturalized) can petition for residence for parents, spouses, and minor children, the family members are often blocked from obtaining legal residence because they entered the U.S. without inspection and do not have a legal entry. All applicants for adjustment of status to permanent residence (with military relatives or not) must prove a legal entry. If one cannot show a legal entry and cannot adjust status in the U.S, they must leave the U.S. for processing at the U.S. consulate in their home country. But by leaving the U.S. they may face a 3-year or 10-year bar on returning to the U.S. There are waivers of this upon a showing of extreme hardship to the U.S. relative, but the waivers are difficult, if not impossible to obtain and are not available to everyone. Thus, many U.S. citizens have immediate family members that have no path to legal residence.

Parole in Place (PIP) is a temporary right to remain in the U.S. and significantly provides a path to legal residence for noncitizen spouses, parents, and minor children of U.S. citizen members of the military (veterans or currently serving).

If USCIS authorizes PIP for the military family members, they do not have to leave the U.S. to adjust their status to permanent residence as the PIP not only allows them to stay in the U.S. but creates a legal entry.

The National Defense Authorization Act of 2020 ordered USCIS (in considering Parole in Place) to consider, on a case-by-case basis, whether granting the request would enable military family unity that would constitute a significant public benefit and emphasized that disruption to military family unity should be minimized so as to enhance military readiness and allow military service people peace of mind regarding the well-being of the family.

As mentioned at the beginning of this blog, this does not cover all the complications and issues regarding the intersection of military service and immigration but hopefully, my readers will have obtained a better understanding of how military members and their families are impacted by the U.S. immigration law.

Linda M Kaplan
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