U.S. Immigration Rules for Military Family Members

Learn what special immigration rights are extended to the families of those serving in the U.S. military.

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If you are a native of another country, and are the close relative of someone who is serving (or has served) in the U.S. military, you may be interested to know your rights under U.S. immigration laws. By military service we mean active or reserve duty in the U.S. Army, Navy, Marines, Air Force, or Coast Guard, or in a National Guard unit while the unit was federally recognized as a reserve component of the U.S. Armed Forces. (See the U.S. Code of Federal Regulations at 8 C.F.R section 328.1.)

You might also be interested in reading Nolo's article U.S. Citizenship Rights for U.S. Military Personnel and Veterans to find out what rights your serviceperson relative is in line for. If, for example, serving in the military qualifies your family member for immediate or expedited U.S. citizenship, that person may then be able to sponsor (file a visa petition for) you to receive a U.S. green card (permanent residence).

Military Spouses' Right to Count Overseas Posting Time Toward U.S. Residency Requirements

If you are married to a U.S. citizen who is serving in the military and is stationed abroad, and you have a green card, and you accompanied your spouse on this overseas posting under official military orders, you can count your time living with your spouse overseas as if it were time spent in the United States. This will be important for fulfilling the various U.S. residency requirements for citizenship. (This comes from the Immigration and Nationality Act at I.N.A. section 319(e), 8 U.S.C. section 1430(e); and I.N.A. section 284(b),8 U.S.C. section 1354(b)).

What's more, you can take advantage of an exception allowing spouses of U.S. citizens to apply for citizenship after only three years of permanent residence. For details on this exception, see the Nolo's article When Can I Apply for U.S. Citizenship?

Also, you won't need to return to the United States to apply for citizenship if you don't want to. Instead, you can complete the naturalization process abroad.

Surviving Family Members of U.S. Citizens Killed in Action: Immediate Right to Go From Permanent Residents to Citizens

If your U.S. citizen spouse, child, or parent died while honorably serving on active duty with the U.S. Armed Forces, and you are already a permanent resident, and (if you're a spouse) the two of you were married and living together at the time of death, you can apply for citizenship right away. (See I.N.A. section 319(d), 8 U.S.C. section 1430(d).) You'll need to meet the general naturalization requirements and file USCIS Form N-400. See Nolo's article U.S. Citizenship Through Naturalization: Who Is Eligible and How to Apply for more information. If you're more comfortable reading in Spanish, start with Nolo's article Ciudadania y Naturalizacion.

If you are not already a permanent resident, see the below discussion of "Green Cards for Surviving Family" for possible help.

Getting Posthumous Citizenship for Non-Citizen Military Personnel Killed in Action

The law allows family members of a non-U.S.-citizen who died from injury or disease caused or aggravated during active duty with the U.S. Armed Forces during a period of military hostilities to apply for citizenship for their deceased relative. The various conflicts (Iraq, Afghanistan, and the war on terror) that began on September 11, 2001 qualify as a period of military hostilities, until further notice by the U.S. President.

Citizenship will be awarded as of the date of the person's death.

Who should file the application? The law requires that it be the closest relative ("next of kin"). You'll need to use USCIS Form N-644. The application must be turned in within two years of the military person's death. (See I.N.A. section 329A, 8 U.S.C. section 1440.)

Green Cards for Surviving Family Members

Certain family members may apply for green cards as the "immediate relatives" of a U.S. citizen serviceperson, whether the relative was granted posthumous U.S. citizenship or was already a U.S. citizen at the time of his or her death.

Immediate relatives include the service person's spouse (but you must not have been legally separated), parents, and unmarried children under age 21. Or, if your family members have already applied for green cards based on their relation to the deceased, they may go forward with the application as if the death had not happened.

Surviving family members, unlike most green card applicants, don't need to prove that they'll be financially supported or self-sufficient. (That is, they won't face the "public charge" ground of inadmissibility described in Nolo's article Inadmissibility: When the U.S. Can Keep You Out).

Although the immigration laws ordinarily require the parents of a U.S. citizen to wait until the child is 21 to apply for permanent residence with the child as the sponsor, this requirement doesn't apply to the parent of a deceased service member who never reached age 21.

Note, however, that there's a time limit on applying: You'll need to file a visa petition (using USCIS Form I-360) within two years of the service person's death. (See Public Law 108-36 ยงยง 1701--1703, enacted November 24, 2003.)

More information

For a guide to applying for permanent residence through a family member, see How to Get a Green Card, by Ilona Bray and Loida Lewis (Nolo). For more information on the naturalization process, see Becoming a U.S. Citizen: A Guide to the Law, Exam, & Interview, by Ilona Bray (Nolo) and the USCIS Web page on Citizenship for Military Personnel & Family Members.

For a personal analysis of your situation or help with applying for a green card or U.S. citizenship, consult an experienced immigration attorney. You can review profiles of attorneys in your area on the Nolo Lawyer Directory.

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