Immigration and the Military

Nicklaus James Misiti

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Immigration Attorney

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Posted almost 4 years ago. 3 helpful votes

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The first U.S. casualty of the war in Iraq surprisingly was not a US citizen. Instead he was a Guatemalan orphan, Marine Lance Corp. Jose Gutierrez, who made his way to the United States to find a better life. He joined the Marines to earn money for college and to support his family still living in Guatemala.

Immigrant soldiers have fought and died in every conflict the United States has been involved in. As of June, 114,601 men and women not born in the United States were serving in the military. This number makes up almost 8 percent of the 1.4 million active-duty members of the military. Of these, more than 12 percent did not have U.S. citizenship.

Despite their many sacrifices it is estimated that this country has deported over 4000 noncitizens who served honorably in the military since World War II. This does not need to be the case as now service in the military makes it very easy to gain citizenship quickly.

Joining the US military is one of the best ways to receive a lawful status in the US. USCIS has naturalized 42,981 members of the U.S. armed forces since the beginning of the War on Terrorism (September 2001): 37,193 in the United States and 5,788 in ceremonies overseas. This is a huge incentive for immigrants to join the military due to the speed at which naturalization occurs and the low cost.

Non-military immigrants must go through a lengthy and costly process to become citizens. The first step is applying for a green card based upon a qualifying relationship, such as a US citizen family member. The application filing fees alone cost $1500 and when issued the green card is often only conditional. After 2 years another filing fee must be paid and the conditions will be removed. Than either a year or three years after the conditions are removed one can apply for citizenship and must pay yet another filing fee. This means that if everything goes smoothly a person who qualifies for citizenship must wait between 3- 5 years and pay over $2700 in filing fees alone.

The advantage to serving in the military is that qualifying immigrants, who have served honorably on active duty in the U.S. Armed Forces and certain components of the National Guard and the Selected Reserve of the Ready Reserve, can apply for expedited citizenship with no filing fees processed under special wartime provisions in the Immigration and Nationality Act.

Section 328 of the Immigration and Nationality Act

This section applies to all members currently serving in the U.S. Armed Forces or those who have already been discharged from service. You may qualify if:

  • You have served honorably for a total of one or more years.
  • You are a lawful permanent resident.
  • You will be filing your application for naturalization while still in service or within six months of being discharged.

Section 329 of the Immigration and Nationality Act

This section applies to members of the U.S. Armed Forces who currently serve or have served in active-duty status during authorized periods of conflict as outlined in the INA (WWI; September 1, 1939-December 31, 1946; June 25, 1950-July 1, 1955; February 28, 1961-October 5, 1978); September 11, 2001 and after; or any additional period designated by the President in an Executive Order. You may qualify if:

  • You served honorably in the U.S. Armed Forces during an authorized period of conflict.
  • After enlistment, you were lawfully admitted as a permanent resident of the United States, OR at the time of enlistment, reenlistment or induction you were physically present in the United States or a qualifying territory.

Spouses of U.S. Citizens Deployed Abroad

Spouses of US Citizens Deployed Abroad also qualify for Benefits. If you are married to a U.S. citizen who is a member of the U.S. Armed Forces and your citizen spouse is or will be deployed abroad by the Armed Forces for one year, you may be eligible for expedited naturalization under section 319(b) of the INA.

Moreover, marriage to a military veteran is one of the only ways a person who crossed the border illegally without inspection can gain a lawful status without having to leave the US. A person who entered without inspection and married a military veteran can apply for “Parole in Place" and if granted this can be used as a lawful entry for the purpose of petitioning as the spouse of a US citizen. Otherwise, nonmilitary personnel who entered without inspection must leave the country and be subject to a 10 year bar from returning even when they marry a US citizen.

Conclusion

The United States has a long proud tradition of both military service and immigration. A great number of families owe their legal status to a previous relative who served in our armed forces and obtained citizenship through this service. For these reasons our immigration laws have attempted to reward service in the military and make it as easy as possible for veterans to become citizens of the country they have served. Because military attorneys are often not trained in immigration laws, it is often advisable to retain independent counsel before entering any immigration application.

Additional Resources

www.misitiglobal.com

For a Free Consultation regarding Military Benefits

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