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, and servicemembers who die in action.

By , J.D. · University of Washington School of Law

If you have a close relative serving (or has served) in the U.S. military, while you yourself are a native of another country, you might be interested to know your rights and possible options under U.S. immigration law. 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.

This article will discuss the main possibilities, including:

  • parole in place for military family members who came to the U.S. without permission
  • lifting of U.S. residency requirements for permanent resident spouses living overseas with servicemember due to posting orders, and wishing to apply to naturalize
  • surviving family members' right to immediately apply to naturalize after the servicemember's death (if they already hold a green card)
  • posthumous citizenship for servicemembers killed in action, and
  • surviving family members' right to apply for U.S. green cards if they don't already have them.

You might also be interested to read 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 might then be able to sponsor (file an I-130 petition for) you to receive a family-based U.S. green card (permanent residence).

"Parole in Place" Allows Some Family One-Year U.S. Stays and Applying for Green Card, Even After Entering Without Inspection

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 the 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. The Trump Administration seemed intent undoing it, but relented after public pressure. USCIS policy states, however, that it will grant PIP only on a case-by-case basis for "urgent humanitarian reasons or significant public benefit."

Also see Adjustment of Status Via "Parole in Place" for Family Members of U.S. Citizens in Military.

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 (U.S. lawful permanent residence), 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 naturalized U.S. 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.

(See I.N.A. Section 319(e), 8 U.S.C. Section 1430(e).)

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

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 U.S. permanent resident, and (if you're a spouse) the two of you were married and living together at the time of the death, you can apply for U.S. citizenship right away. You'll need to meet the general naturalization requirements and file USCIS Form N-400.

(See I.N.A. Section 319(d), 8 U.S.C. Section 1430(d). Also 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 Members" for possible help.

Posthumous Citizenship for Non-Citizen Military Personnel Killed in Action

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.

(See I.N.A. Section 329, 8 U.S.C. Section 1440-1.)

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.

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

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 death. (See Public Law 108-136.)

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 More Information

For a guide to applying for permanent residence through a family member, see How to Get a Green Card, by Ilona Bray (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.

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