New immigration and naturalization rules to assist soldiers fighting the war on terrorism

Army Lawyer, Dec, 2002

Faculty, The Judge Advocate General's School, U.S. Army

Legal Assistance Note

New Immigration and Naturalization Rules to Assist Soldiers Fighting the War on Terrorism

The War on Terrorism has led to changes in the immigration laws and regulations that greatly benefit soldiers and their spouses. First, active duty soldiers who are not U.S. citizens are now immediately eligible to apply for naturalization. Second, conditional lawful permanent resident alien spouses of soldiers who are deployed in support of Operation Enduring Freedom may request that the Immigration and Naturalization Service (INS) extend their conditional status for one year, and in six-month increments thereafter, until their spouses return from abroad.

On 3 July 2002, President George W. Bush signed Executive Order 13,269, (1) expediting the naturalization of aliens (2) and noncitizen nationals (3) serving in an active duty status (4) during the War on Terrorism. This executive order made all aliens and noncitizen nationals serving honorably on active duty between 11 September 2001 and a future date, to be determined by executive order, eligible for immediate naturalization under section 329 of the Immigration and Naturalization Act. (5) This authority does not require a period of residence or any specified period of physical presence in the United States before the soldier's application for naturalization. (6) The soldier must show, however, that for at least one year before filing for naturalization, he or she has been, and continues to be: (1) of good moral character; (2) attached to the principles of the Constitution; and (3) favoring the good order and happiness of the United States. (7) Moreover, the government may revoke citizenship granted under this executive order if the soldier is subsequently separated under other than honorable conditions. (8) Former President Clinton last used this authority to expedite the naturalization of service members who served on active duty during the Persian Gulf War. (9)

Legal assistance attorneys should advise soldiers to apply for naturalization under this executive order using the procedures found in The Soldier's Guide to Citizenship Applications. (10) Department of the Army policy has directed Personnel Service Battalions (PSBs) and Military Personnel Divisions (MPDs) to assist soldiers in filing their applications for naturalization. (11)

In addition to the executive order authorizing soldiers on active duty to apply for naturalization immediately, the INS has issued rules that will assist soldiers' alien spouses in their immigration process. On 7 January 2002, the INS issued a policy memorandum providing for special procedures if a conditional lawful permanent resident's spouse is a member of the U.S. Armed Forces and is stationed abroad as part of Operation Enduring Freedom. (12)

Generally, a soldier's alien spouse receives only conditional lawful permanent resident status if: (1) he or she was married within twenty-four months of the alien spouse obtaining resident status as an immediate relative of the soldier; or (2) the alien spouse received permanent residence after entering the United States under a fiancee "K" visa to marry the soldier. (13) Ordinarily, the alien spouse and the sponsoring soldier must jointly petition to remove the spouse's conditional status during the ninety-day period before the second anniversary of the date the spouse obtained conditional lawful permanent resident status. (14) Additionally, the alien spouse and sponsoring soldier must generally appear for a personal interview before an INS officer before the INS will remove the conditional status. (15) If the couple fails to file a petition, or (barring a showing of good cause) fails to appear for the interview, the alien spouse's permanent resident status is terminated as of the second anniversary of the spouse's admission for permanent residence. (16) The spouse is then subject to removal from the United States.

If a sponsoring soldier is deployed in support of Operation Enduring Freedom, the soldier may be unable to sign the joint petition requesting removal of the conditional status or to appear before an INS officer for the personal interview. Fortunately, the INS has recognized this problem and has issued special instructions for such situations. (17) Under the INS policy memorandum, if the soldier's deployment is imminent and the soldier has already filed the petition to remove the conditional status, the INS Service Office must make "every effort" to complete adjudication of the petition prior to the soldier's deployment. (18) If the INS cannot adjudicate the petition before the soldier deploys, the INS places the petition on "overseas hold" pending the soldier's return from abroad. (19)

If the soldier has already deployed and his or her spouse's conditional status is due to expire, the INS will accept a petition signed by the conditional resident only, provided the petition is accompanied by evidence that the soldier's spouse is deployed. (20) In addition, the policy provides that the service center may approve the petition without an interview, unless the petition's supporting documentation does not warrant approval. In that case, the service center must schedule the case for an interview and place the case on "overseas hold." (21)