by Antoinette N. Balta and Richard M. Wilner

People who serve in the U.S. military and deploy to combat are commonly referred to as “American Heroes.” Veterans Legal Institute, a Southern California military-specific legal aid dedicated to meeting the needs of these heroes, has identified significant immigration demand amongst its active and former service member clientele.

Unbeknownst to many, there is a silent but strong community of American Heroes who are not fully American. In other words, many lawful permanent residents (“green-card holders”) enlist in the U.S. military prior to gaining citizenship. As detailed below, for those lawful permanent residents, enlistment might result in the immediate ability to naturalize and, in turn, help their families. For others who are already citizens of the United States, enlistment might enable them to benefit their parents and spouses who are not American citizens. In any event, the brave men and women who comprise the Armed Forces of the United States can derive individual immigration benefits from enlistment or pass those benefits on to specific family members. United States citizens are given priority in petitioning their relatives.

Becoming a United States Citizen

If one is not born in the United States, citizenship may be acquired, derived, or otherwise applied for. Both acquisition and derivation of U.S. citizenship are concepts which require treatment in articles of their own. This article shall highlight applications for naturalization by active duty members of the United States military.

With most joining the military out of patriotic desires, it is hard to imagine why military-affiliated green card holders fail to naturalize. The veteran population seeking assistance through Veterans Legal Institute (VLI) for naturalization services have almost always reasoned that they had not taken legal steps sooner due to financial constraints. The average enlisted makes significantly less than their civilian counterpart and the present cost to naturalize on the date of this publication is $725 ($640 for the N-400 filing fee and $85 biometric fee). Bear in mind, that does not include the cost of an attorney. That being said, Section 328 or Section 329 of the Immigration and Nationality Act (INA) allow certain service members to have their fees waived. While this benefit exists, many do not know about it. For that reason, a significant amount of active service members and veterans put off the process.

Generally, an applicant for naturalization must be eighteen years of age, a lawful permanent resident (LPR) for five years subsequent to obtaining permanent residency (or three years if an applicant spouse is a United States citizen for the three years and the parties are living in marital union), must be physically present in the United States for at least one-half of the five (or three) years needed for continuous residence, and must meet the good moral character requirements. Active duty members of the United States military who have served during a period of hostilities, however, are exempt from showing residence and physical presence—they are waived for time spent abroad in military service. This also applies to spouses of members of Armed Forces living in marital union abroad, and the good moral character requirement is reduced to one year preceding the application (as opposed to the traditional five-year requirement). Simply put, good moral character normally mandates proof that the applicant has not been convicted of certain crimes and was discharged honorably.

Whether or not a criminal conviction would render one ineligible for naturalization requires careful analysis. Similarly, even though one has served honorably in the military, lawful permanent (veteran) residents can still be removed (deported) from the United States if convicted of certain types of crimes. It is worthy to note that there is a large contingent of deported veterans, mainly U.S. Marines, who reside at a bunker located in Tijuana.

Immigration Benefits for The Families of Veterans—Parole in Place

A United States citizen may petition his/her parent(s), spouse, and unmarried children under twenty-one years of age. And, while a United States citizen may petition a sibling or a married (or single) son or daughter over twenty-one years of age, said persons are subject to visa availability in certain preference categories. Obtaining a green card in the United States is formally referred to as an application for adjustment of status.

Generally speaking, applicants for adjustment of status must demonstrate that they were inspected and admitted (or paroled), pass medical clearances, and must be admissible to the United States (or be eligible for a waiver of inadmissibility or other form of relief). Common grounds of inadmissibility include criminal convictions, immigration fraud, and prior immigration violations. A common situation encountered by veterans trying to petition the above-referenced eligible immediate relatives is when one has entered the United States without inspection (illegally). There is a process in place that addresses that very subject and, provided that the applicant is otherwise eligible for a green card, honorable military service to the United States can overcome an entry problem. That process is known as “parole in place” and as it relates to the military, was developed in appreciation to the family members of U.S. veterans.

Pursuant to Section 212(d)(5)(A) of the INA, an applicant may be eligible for parole in place in one-year increments if he or she is the spouse, widow(er), parent, son or daughter 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 (whether still living or deceased) previously served on active duty or in the Selected Reserve of the Ready Reserve and was not dishonorably discharged. This is available to individuals who entered the United States illegally and are applicants for admission. If parole in place is granted, it will work as evidence of lawful entry (parole) to the United States and one may apply for their green card in the United States and prosecute the same with the need to process the case at U.S. consulate overseas.

Many U.S. veterans are not aware of the legal process. Because they are rarely informed about what they are supposed to do to finalize their legal status, many members assume that serving in the military and being honorably discharged is enough to upgrade their green card to citizenship. As a result, they don’t take any action towards naturalizing and/or passing the benefits of permanent residency onto their family members.

Other Immigration Law Issues

With active service members deploying around the world, new ties are made and curiosities developed. Many meet a person overseas who will ultimately become their spouse and whom they want to bring back to reside lawfully in the United States. Some overseas spouses may enter the United States on a visitor’s visa and ultimately decide to stay, while others are petitioned—and subjected to family separation/processing times—while still overseas.

Other immigration issues, as alluded to above, may involve a lawful permanent resident veteran that never became a United States citizen and on account of the commission of certain types of crimes, finds him or herself in removal (deportation) proceedings. In other words, the fact that one has served our country honorably does not preclude removal from the United States as a non-citizen.

How VLI and Its Pro Bono Attorneys Help, and How You Can Too

Veterans Legal Institute has long supported veterans with a variety of civil legal issues, and immigration is no exception. Attorneys from around the county volunteer for a variety of immigration-related cases. VLI’s first immigration case was recorded in January of 2015. Since then, VLI has assisted close to 100 low-income veterans with immigration needs. Past immigration clients range in age from twenty-two through eighty-eight years old. One such volunteer attorney, also a VLI board member, Richard Wilner of Wilner O’Reilly, has taken on over two dozen immigration cases pro bono, ranging from family-based petitions to naturalization. In one such case, Wilner assisted a 100% disabled purple heart veteran, who had suffered significant traumatic brain injury, naturalize his spouse. The veteran’s spouse was a trained nurse and was the veteran’s caretaker. In another such case, Lisa Ramirez of U.S. Immigration Law Group, assisted a 100% disabled homeless veteran, who was unable to work, by naturalizing his wife who was his full-time caretaker. Together, they were able to get housing and healthcare without the concern of his wife’s possibly being deported.

While it may not come to mind that there is a need for pro bono immigration services for U.S. veterans and active service members, immigration attorneys throughout Orange County have realized otherwise. Together, the Orange County attorneys and Veterans Legal Institute are ensuring the security of those who defend our nation.

Antoinette N. Balta i is the President of Veterans Legal Institute and a JAG officer holding the rank of Major in the California State Military Reserve, and can be reached at abalta@vetslegal.com. Richard M.Wilner is Board Certified as specialist in Immigration and Nationality law by the State Bar of California’s Bureau of Legal Specializaton and a principal at Wilner O’Reilly. He can be reached at richard@wilneroreilly.com. The authors would like to thank Daisy Rojas, a graduate of San Francisco State University, who contributed greatly to this article.