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Military Service

by Gregory Siskind

Are immigrants required to be available for military service?

Since World War I, immigrants to the US have been required to be available for military service. Nonimmigrants, those people who are in the US for a temporary period of time, do not have this obligation, but permanent residents, refugees, parolees and even undocumented immigrants do. During times of peace, however, only citizens and permanent residents may volunteer for military service. As with all male citizens born after 1959, permanent residents must register with Selective Services.  Failure to properly register could lead to criminal punishment, and can also lead to denial of future immigration or naturalization benefits.

Can I leave the US in order to avoid serving in the military?

Leaving the US to avoid military service, or desertion from the military, will make a person permanently ineligible for citizenship. In addition to this, being ineligible for citizenship is a basis upon which to deny a person admission to the US. Immigrants can obtain an exemption from the military service requirement on the ground that they are not citizens, but doing so will render them permanently ineligible for citizenship, unless the exemption was obtained under a treaty, and before seeking the exemption the immigrant had served in the military of their home country.

Can immigrants receive immigration benefits as a result of their military service?

Just as failure to abide by the Selective Service laws can result in a denial of future benefits, performing military service can produce benefits. People who have served for a total of three years in the US military and who, if no longer in the military, were honorably discharged, are exempted from standard residency requirements if the naturalization application is filed while still in the military or within six months of discharge.

Immigrants who served on active duty during World War I, World War II, the Korean War, the Vietnam War and other military conflicts are also exempt from the residency requirements, and may be naturalized regardless of their age. Permanent residents who died while serving in the US military are eligible for posthumous naturalization if the application is filed no more than two years after their death. Immigrants on active duty are not deportable under a special agreement between USCIS and the Department of Defense.  Moreover, in many of these cases, the immigrant is given the opportunity to seek naturalization before USCIS initiates deportation proceedings.

Finally, at many times in the past, ceremonies have been held to naturalize permanent resident military personnel before they were sent overseas.

Can people who lack green cards join the military?

While all immigrants legal or undocumented, are obligated to register with Selective Service, it is actually pretty difficult to join the military if you lack a green card or are not a citizen or asylees. The military is not supposed to accept undocumented individuals (though we are aware of a number of cases where undocumented immigrants made it into the military anyway) and none of the branches sponsor individuals for non-immigrant or immigrant status (with some minor exceptions).  

Whether Congress and the military will relax its position in the wake of falling recruiting numbers remains to be seen.


About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at gsiskind@visalaw.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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