By Daniela A. Hoegerle

Who is eligible?

In order to apply for citizenship, the military member must meet all the requirements of either section 328 or 329 of the INA. If the military member served honorably in the U.S. armed forces for at least one year at any time, he or she may be eligible to apply for naturalization under section 328. If the military member is currently serving or previously served honorably in the U.S. armed forces during a designated period of hostilities, he or she may be eligible to apply for naturalization under section 329.

One year of military service at any time

To apply for citizenship under section 328, the military member must have served honorably in the U.S. armed forces for at least one year at any time. The military member must also:

• Be 18 years old or older;
• Have submitted a completed Form N-426, Request for Certification of Military or Naval Service, at the time of filing his or her N-400, if he or she is currently serving, or a photocopy of his or her DD Form 214, Certificate of Release or Discharge from Active Duty, NGB Form 22, National Guard Report of Separation and Record of Service, or other official discharge document for all periods of service if he or she is not serving;
• Show that if separated from service, he or she was separated under honorable conditions;
• Be a lawful permanent resident at the time of his or her naturalization interview;
• Meet certain residence and physical presence requirements;
• Show the ability to read, write, and speak English, unless waived or excepted;
• Demonstrate knowledge of U.S. history and government, unless excepted;
• Demonstrate good moral character for at least five years before filing his or her N-400 through the day he or she naturalizes; and
• Demonstrate an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the United States during all relevant periods under the law, unless waived.

Service during periods of hostility

To apply for citizenship under section 329, the military member must be currently serving or previously served honorably in the U.S. armed forces during a designated period of hostilities. The designated periods of hostilities are listed below:

• April 6, 1917 to November 11, 1918
• September 1, 1939 to December 31, 1946
• June 25, 1950 to July 1, 1955
• February 28, 1961 to October 15, 1978
• August 2, 1990 to April 11, 1991
• September 11, 2001 to present

The military member must also:

• If separate, have been separated under honorable conditions from his or her qualifying period of service;
• Have submitted a completed Form N-426, Request for Certification of Military or Naval Service, if he or she is serving when he or she files his or her N-400, or a photocopy of his or her DD Form 214, Certificate of Release or Discharge from Active Duty, NGB Form 22, National Guard Report of Separation and Record of Service, or other official discharge document for all periods of service if he or she is not currently serving;
• Be a lawful permanent resident or have been physically present at the time of enlistment, reenlistment, or extension of service or induction into the U.S. armed forces;
  
  • In the United States, the Canal Zone, American Samoa, or Swains Island OR
  • On board a public vessel owned or operated by the United States for noncommercial service;
• Show the ability to read, write, and speak English, unless waived or excepted;
• Demonstrate knowledge of U.S. history and government, unless excepted;
• Demonstrate good moral character for at least 1 year prior to filing his or her N-400 through the day he or she naturalizes; and
• Demonstrate an attachment to the principles of the U.S. Constitution and be well disposed to the good order and happiness of the United States during all relevant periods under the law, unless waived.

An applicant who files on the basis of military service during hostilities is exempt from the general naturalization requirements of continuous residence and physical presence.

Posthumous citizenship for military members

Generally, individuals who served honorably in an active duty status in the U.S. armed forces during a specified period of military hostilities and died as a result of injury or disease incurred in or aggravated by that service may be eligible for posthumous citizenship under section 329A.

Form N-644, Application for Posthumous Citizenship, must be filed on behalf of the deceased service member within two years of their death. Upon approving the application, USCIS will issue a Certificate of Citizenship in the name of the deceased service member establishing posthumously that he or she was a U.S. citizen on the date he or she died.

Expedited naturalization for spouses of service members

Spouses of U.S. service members who are or will be stationed outside the United States may be eligible for expedited naturalization in the U.S. under section 319(b).

To apply for naturalization under section 319(b), the spouse generally must:

• Be age 18 or older;
• Establish his or her spouse is a U.S. citizen who is, or will be, regularly stationed abroad as a U.S. service member for a period of one year or more;
• Be authorized to accompany his or her spouse abroad by his or her spouse's official orders;
• Be present in the U.S. as a lawful permanent resident at the time of his or her naturalization application interview;
• Be present in the U.S. at the time of naturalization;
• Declare in good faith upon naturalization an intent to reside abroad with his or her U.S. citizen spouse and to reside in the U.S. immediately upon his or her spouse's termination of service abroad;
• Be able to read, write, and speak basic English;
• Have a basic knowledge of U.S. history and government; and
• Have been, and continue to be, a person of good moral character, attached to the principles of the U.S. Constitution and well disposed to the good order and happiness of the U.S. during all relevant periods under the law.

Overseas naturalization for spouses of service members

Under section 319(e)(2), a lawful permanent resident who is married to a U.S. service member can naturalize outside the United States without traveling to the U.S. In general, to be eligible for naturalization abroad under section 319(e)(2), the LPR spouse must:

• Be the spouse of a U.S. service member who is stationed outside the United States in that capacity;
• Be authorized to accompany his or her spouse outside the United States by his or her spouse's official orders;
• Reside outside the United States in marital union with his or her spouse; and
• Meet the requirements of either section 316(a) or 319(a) at the time he or she files his or her naturalization application
  
  • Section 316(a) applies if the LPR spouse has been
    
    • An LPR for at least five years immediately before the date he or she files the naturalization application; and
    • Physically present in the U.S. for periods totaling at least two and a half years
  • Section 319(a) applies if
    
    • The LPR spouse has been an LPR and has resided in the United States for at least three continuous years immediately before the date he or she files his or her naturalization application;
    • The LPR spouse has lived in marital union with his or her U.S. citizen spouse for at least three years immediately before he or she files his or her naturalization application; and
    • The LPR spouse has been physically present in the U.S. for periods totaling at least 18 months out of the three years immediately preceding the date he or she files his or her application. Time spent living in marital union with his or her spouse who is abroad under military orders counts toward the continuous residence and physical presence requirements.

The LPR spouse can file for naturalization up to 90 calendar days before he or she meets the time requirement for being an LPR. However, if he or she files early under section 319(a):

• He or she must have been married to his or her U.S. citizen spouse for at least three years at the time he or she files;
• His or her spouse must have been a U.S. citizen for at least three years at the time he or she files; and
• He or she must meet all other eligibility requirements, such as good moral character.

Naturalization or citizenship for children of service members

Certain children of U.S. service members or U.S. government employees, and children of their spouses, may automatically acquire citizenship under section 320. This may include children of parents who are stationed and residing outside of the United States.

Certain children of service members who have not already acquired citizenship automatically under section 320 can become naturalized U.S. citizens under section 322 without having to travel to the U.S. for any part of the naturalization process.

Naturalization for surviving relatives of U.S. citizen service members

Spouses, children, and parents of deceased U.S. citizen service members who died during a period of honorable service may be eligible for naturalization under section 319(d). The surviving relative must be a lawful permanent resident and meet the other general naturalization requirements, except for the residence or physical presence requirements in the U.S.

For surviving spouses of deceased service members, he or she must have been living with his or her spouse at the time of their death unless he or she lived apart because of circumstances beyond his or her control, such as his or her spouse's military service. However, the surviving spouse remains eligible for naturalization under this provision even if he or she has remarried since the service member's death.

Contact the Law Offices of James D. Eiss for more information on acquiring citizenship through military service.