The Legal Assistance Attorney's Guide to Immigration and Naturalization

AuthorLieutenant Colonel Pamela M. Stahl


Volume 177 Symposium Issue Fall 2003



  1. Introduction

    On 3 July 2002, President George W. Bush signed Executive Order 13,269,2 expediting the naturalization of aliens3 and noncitizen nationals4 serving in an active duty status5 during the war on terrorism. Under this Executive Order, the President made all aliens and noncitizen nationals serving honorably on active duty during the period beginning 11 September 2001, and terminating on a date designated by future executive order, eligible for immediate naturalization.6 The Executive Order brought naturalization issues to the forefront of the military legal assistance practice,

    as many legal assistance offices were inundated with soldiers seeking information on how to apply for naturalization under the Executive Order.

    Many may be surprised to learn that a person need not be a U.S. citizen to serve in its armed forces. Under federal law, in time of peace, a person must be either a citizen or a lawful permanent resident of the United States to enlist in the Army or Air Force.7 The regular Navy and Marine Corps apply the same requirements by policy.8 The military generally requires a service member to become a U.S. citizen, however, before he or

    she may reenlist. For example, under Army policy a soldier who is not a U.S. citizen cannot reenlist if he or she will have in excess of eight years of federal military service at the expiration of the period for which they seek to reenlist.9

    Likewise, to be appointed as an officer in the Reserves of the armed forces, a person can be either a U.S. citizen or a lawful permanent resident.10 A person must be a U.S. citizen, however, to receive an original appointment as a commissioned officer in the regular Army, Air Force, Navy, and Marine Corps11 and in the National Guard.12

    Because some service members are not U.S. citizens when they enter the armed forces, legal assistance attorneys need to know how to properly advise them on naturalization requirements. Additionally, service me

    bers may need immigration and naturalization advice to assist their alien spouses and their spouse's children in immigrating to the United States, receiving lawful permanent resident status and, eventually, becoming naturalized U.S. citizens.

    Army regulation authorizes judge advocates to provide legal assistance services on these immigration and naturalization issues.13 Immigration law is a highly specialized field, however, and judge advocates should consider referring legal assistance clients to private attorneys specializing in immigration law if it is in the best interests of their client.14 As with other legal assistance issues, legal assistance offices should make available a list of Reserve attorneys who specialize in this area and are willing to consider providing advice to service members and their families for Reserve points or reduced fees.

    As a predicate to understanding the U.S. laws on immigration and naturalization, legal assistance attorneys should be familiar with the recent reorganization of federal immigration services. Shortly after the terrorist attacks on 11 September 2001, President Bush issued an Executive Order establishing the Office of Homeland Security "to develop and coordinate the implementation of a comprehensive national strategy to secure the United States from terrorist threat or attacks."15 One year later, Congress passed the Homeland Security Act of 2002 (the Act), which established the Department of Homeland Security (DHS).16 This new cabinet-level department marked the largest reorganization in the federal government in over fifty years. It absorbed twenty-two agencies and programs with a combined total of 180,000 employees.17 One of those agencies was the Immigration and Naturalization Service (INS), which was part of the Department of Justice. The Act abolished the INS and divided its func-

    tions into three separate departments, including the Bureau of Citizenship and Immigration Services (BCIS), to manage national immigration services policies and priorities.18 Under the new law, the Director, BCIS is charged with adjudicating immigrant and nonimmigrant visa petitions, applications for certificates of citizenship, and naturalization applications.19 The functions of the INS and all authorities with respect to those functions transferred to the DHS on 1 March 2003 and the INS was abolished on that date.20

    This article begins by discussing the two ways in which a person may become a U.S. citizen: by birth (acquisition or derivation) and by naturalization. It then outlines the requirements for admission into the United States and discusses two types of nonimmigrant visas that a service member's alien fiancée or spouse may use to enter the United States. The article then explains how an alien spouse, the spouse's children, and other family members may immigrate to the United States and become lawful permanent residents. Finally, it details the specific procedures for naturalization of service members and their spouses and children and proposes amending immigration regulations to allow service members to take the Oath of Citizenship overseas.

  2. U.S. Citizenship, Generally

    1. Citizenship by Birth

      Generally, persons born in the United States become U.S. citizens at birth. In addition, certain classes of individuals born outside the United States become citizens at birth based on the U.S. citizenship status of one or both of the individual's parents. If a service member has a child born outside the United States, the child may be a U.S. citizen at birth if the se

      vice member complies with specific statutory requirements on residence and physical presence.

      First, a child may become a U.S. citizen at birth if the child is born in the United States or certain outlying territories. According to the Fourteenth Amendment to the U.S. Constitution, all persons born in the United States and subject to the jurisdiction thereof are U.S. citizens.21 Those persons born in, but not subject to the jurisdiction of, the United States are generally children of foreign diplomats.22 Additionally, Congress has conferred U.S. citizenship on persons born in certain territories under U.S. control, to include persons born in Puerto Rico,23 the Virgin Islands of the United States,24 Guam,25 and the Northern Mariana Islands.26

      Even if not born in the United States, a child may be a U.S. citizen at birth because the child's parent is a U.S. citizen. First, a child is a U.S. citizen at birth if born outside the United States and its outlying possessions27

      of parents: (1) both of whom are U.S. citizens if one of the parents had a residence28 in the United States or an outlying possession, prior to the birth;29 (2) one of whom is a citizen who has been physically present in the United States or one of its outlying possessions for a continuous period of

      one year prior to the birth of the child, and the other who is a national, but not a U.S. citizen;30 or (3) one of whom is an alien and the other is a citizen who, prior to the birth, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after the age of fourteen.31 Additionally, a child is a U.S. citizen at birth if born in an outlying possession of parents one of whom is a citizen who has been physically present in the United States or one of its outlying possession for a continuous period of one year at any time prior to the child's birth.32 If the citizen parent is a service member, any periods of honorable service are included in satisfying the physical-presence requirement.33

      If a service member who is a U.S. citizen has a child born out of wedlock outside the United States, the child is not automatically a U.S. citizen under the above analysis. If the service member is female, her child will be a U.S. citizen at birth only if the service member previously had been physically present in the United States or one of its outlying possessions for a continuous period of one year.34

      It is more difficult, however, for a male service member who has a child overseas born out of wedlock to establish that his child is a U.S. citizen. First, the service member father must have been physically present in the United States or an outlying possession for a period or periods totaling not less than five years, at least two of which were after the age of fourteen, prior to the birth of the child.35 The law goes further, requiring that a blood relationship be established; that the service member father (unless deceased) agree in writing to provide financial support until the child reaches eighteen;36 and that while the child is under eighteen, the child is legitimated under the law of the child's residence or domicile, the service member acknowledges paternity in writing under oath, or the child's pate

      nity is established by adjudication of a competent court.37 The more difficult proof requirements for citizen fathers than for citizen mothers was recently challenged based on the Equal Protection Clause of the Fifth Amendment to the U.S. Constitution.38 In Nguyen v. INS, the Supreme Court rejected the constitutional challenge to the law, finding that the different statutory requirements for a child's acquisition of citizenship depending on whether the citizen parent is a mother or father was consistent with the Equal Protection Clause.39

      Even if a service member's child, including an adopted child,40 does not obtain U.S. citizenship at birth, the child still may be eligible automatically to become a U.S. citizen, if the child is under the age of eighteen and residing in the legal and physical custody of the service member.41 A child obtaining citizenship through this means is discussed later in this article.42

    2. Citizenship through Naturalization

      In addition to the methods...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT