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.
You might also be interested in reading 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 an I-130 petition for) you to receive a U.S. green card (permanent residence).
A discretionary opportunity called "Parole in Place" allows certain family members of U.S. military personnel who came to the U.S. illegally, that is, without being inspected by an immigration officer at the border, to apply for the chance to remain in the U.S., in one-year increments.
(PIP is not, however, available to people who overstayed a U.S. visa.)
Eligible applicants include the spouse (or widower), child, or parent of an active duty member of the U.S. Armed Forces, an individual in the Selected Reserve of the Ready Reserve, or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.
PIP applications must be made on USCIS Form I-131, and include evidence of the qualifying family relationship (such as a marriage or birth certificate), proof of the family member's military service (such as a copy of the front and back his or her military identification card or DD Form 214), two color passport-style photographs of the applicant, and evidence of any favorable discretionary factors that USCIS should consider.
A PIP grant potentially allows the person to apply for permanent residence in the U.S. (a green card) without leaving the United States. Under normal circumstances, applicants who entered illegally must leave the U.S. for the last phase of their application, which is attending an interview and getting an immigrant visa at the U.S. consulate in the home country ("consular processing").
Originally, the Obama Administration instituted the PIP policy for military families. However, the Trump Administration canceled various types of parole arrangements, and seemed aimed at doing the same for military PIP. After public pressure, it allowed military PIP to remain. USCIS policy stated, however, that it would grant PIP only on a case-by-case basis for "urgent humanitarian reasons or significant public benefit." And attorneys reported that USCIS's denial rate for PIP under the Trump Administration became quite high.
Congress might have had the last word on this, however. In the National Defense Authorization Act for 2020, it reaffirmed PIP's importance and ordered USCIS to "consider, on a case-by-case basis, whether granting the request would enable military family unity that would constitute a significant public benefit." What's more, it stated that "disruption to military family unity should be minimized," so as to "enhance military readiness" and allow military service people to "focus on the faithful execution of their military missions and objectives, with peace of mind regarding the well-being of their family members."
Hopefully this Congressional mandate will show up in USCIS's stated policies and actions soon. In the meantime, be sure to see an attorney if you think you'd benefit from applying for PIP.
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.
Also, you won't need to return to the U.S. to apply for citizenship if you don't want to. Instead, you can complete the naturalization process abroad.
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. You'll need to meet the general naturalization requirements and file USCIS Form N-400. See Who Can Apply for U.S. Citizenship for more information.
If you are not already a permanent resident, see the below discussion of "Green Cards for Surviving Family" for possible help.
U.S. 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 apply using USCIS Form N-644. The application must be turned in within two years of the military person's death. If you can’t do it, the secretary of defense, or the secretary’s designee in U.S. Citizenship and Immigration services (USCIS), can file the application for you.
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 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 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 petition using USCIS Form I-360 within two years of the service person's death.
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 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 locate attorneys in your area on the Nolo Lawyer Directory.