Immigrants and Military Service

Immigration Law & You
By R. Mark Frey
AAP Guest Columnist

ST. PAUL  (Feb 12, 2014) — Civil War General William Tecumseh Sherman is attributed to have observed that “it is only those who have neither fired a shot nor heard the shrieks and groans of the wounded who cry aloud for blood, for vengeance, for desolation. War is hell.”

Since 9/11, much has been asked of our men and women in uniform (and their families) in the fight against terrorism in various parts of the world. It’s a grueling and dangerous job, one done with much sacrifice, without expectation of thanks or financial gain, and deserving of our deep gratitude. Some may be surprised to learn that immigrants are playing an important role in our Armed Forces, willingly providing service for the greater good of our country. This has not gone unnoticed by the U.S. government and it has sought to help those members of our military who are immigrants themselves or have family members who are.

There are many aspects to the issue of immigration benefits for members of the Armed Forces and their families. One key piece is that concerning surviving relatives of military personnel who died while serving our country. And, the Department of Homeland Security has tried to help those surviving relatives gain immigration status in the United States.

First, is that situation concerning a surviving spouse of a U.S. citizen who served in the Armed Forces. The surviving spouse of that individual will be eligible for permanent residence if (s)he:

• Was legally married to the U.S. citizen who served honorably on active duty and not legally separated at the time of the U.S. citizen spouse’s death;

• The U.S. citizen spouse died as a result of an injury or disease incurred in or aggravated by that military service;

• Files a special petition within two years of the U.S. citizen spouse’s death;

• Does not remarry before obtaining permanent resident status based on that relationship to the deceased U.S. citizen spouse.

Second, is the circumstance involving surviving children and parents of a U.S. citizen serving in the Armed Forces. Those individuals may be eligible for permanent residence provided:

• The U.S. citizen armed service member’s death was combat related;

• The U.S. citizen armed service member served honorably in an active-duty status in the U.S. Armed Forces;

• The U.S. citizen armed service member died as a result of injury or disease incurred in or aggravated by combat; and

• The child or parent files a special petition within two years of the U.S. citizen armed service member’s death.

Additional considerations are that the child must be unmarried and under the age of 21 at the time of the U.S. citizen armed services member’s death. Furthermore, the parent of the deceased armed services member may still file the special petition in spite of the fact that the deceased was under the age of 21 at the time of death.

The third scenario involves surviving family members of an Armed Forces member who was not a U.S. citizen. The family must first seek posthumous citizenship for the deceased by filing paperwork with U.S. Citizenship and Immigration Services (USCIS) and meet certain conditions:

• The paperwork must be filed no later than two years after the armed service member’s death; and • The military certifies that (s)he served honorably in an active-duty status during a qualifying period of armed conflict and died as a result of injury or disease incurred in or aggravated by that service.

If the paperwork is approved, USCIS will send the family a certificate of citizenship at which point the family may seek permanent residence as outlined in the aforementioned steps for surviving members of an Armed Forces member who was a U.S. citizen.

The fourth and final situation involves immigration paperwork filed for family members but not yet approved at the time of the Armed Forces member’s death.  The spouse, child, or parent of that Armed Forces member may still pursue processing of the paperwork provided:

• The deceased served honorably in an active-duty status in the U.S. Armed Forces;

• The service member died as a result of injury or disease incurred in or aggravated by that service;

• The deceased service member was a citizen at the time of death or was granted posthumous citizenship (as previously outlined above); and

• The surviving family member informs USCIS that eligibility for permanent residence should continue despite the death of the Armed Forces family member.

There are several more aspects to the issue of benefits for immigrants in the military and their family members and I intend to devote more coverage to it in the coming weeks.

R. Mark Frey is a St. Paul, Minnesota attorney who has been practicing immigration law exclusively for 25 years with an emphasis on political asylum, family immigration, naturalization, removal defense, and appeals as well as H-1B and religious worker visas.