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Chapter 4: Permanent Bars to Naturalization


A. Exemption or Discharge from Military Service Because of Foreign Nationality


1. Permanent Bar for Exemption or Discharge from Military Service 


An applicant who requested, applied for, and obtained a discharge or exemption from military service from the U.S. armed forces on the ground that he or she is an alien or foreign national (“alienage discharge”) is permanently ineligible for naturalization unless he or she qualifies for an exception (discussed below).[1] See INA 315. See 8 CFR 315.2.


An exemption from military service is either a permanent exemption from induction into the U.S. armed services or the release or discharge from military training or service in the U.S. armed forces.[2] See 8 CFR 315.1. The Ninth Circuit has found that an exemption from voluntary military service is not a permanent bar under INA 315. See Gallarde v. I.N.S., 486 F.3d 1136 (9th Cir 2007). INA 329 has similar language about exemptions, and that language has been found to cover discharges based on alienage even in cases of voluntary enlistment. See Sakarapanee v. USCIS, 616 F.3d 595, (6th Cir 2010). Officers should consult with local OCC counsel in handling discharges based on alienage. Induction means compulsory entrance into military service of the United States by conscription or by enlistment after being notified of a pending conscription. 


Until 1975, applicants were required to register for the military draft. The failure to register for the draft or to comply with an induction notice is relevant to the determination of whether the applicant was liable for military service, especially in cases where an exemption was based on foreign nationality.


Certain persons were granted exemptions from the draft for reasons other than foreign nationality, including medical disability and conscientious objector. An applicant may present a draft registration card with an exempt classification under circumstances that do not relate to foreign nationality.


2. Exceptions to Permanent Bar


There are exceptions to the permanent bar to naturalization for obtaining a discharge or exemption from military service on the ground of alienage.[3] See 8 CFR 315.2(b).


The permanent bar does not apply to the applicant if he or she establishes by clear and convincing evidence that: 


  • The applicant had no liability for military service (even in the absence of an exemption) at the time he or she requested an exemption from military service;



  • The exemption from military service was based upon a ground other than the applicant's alienage;


  • The applicant was unable to make an intelligent choice between an exemption from military service and citizenship because he or she was misled by an authority from the U.S. Government or from the government of his or her country of nationality;



  • Prior to requesting the exemption from military service, the applicant served a minimum of eighteen months in the armed forces of a nation that was a member of the North Atlantic Treaty Organization at the time of his or her service, or the applicant served a minimum of twelve months and applied for registration with the Selective Service Administration after September 28, 1971; or



3. Countries with Treaties Providing Reciprocal Exemption from Military Service


The tables below provide lists of countries that currently have (or previously had) effective treaties providing reciprocal exemption from military service.[8] See 8 CFR 315.4.


Countries with Effective Treaties Providing

Reciprocal Exemption from Military Service

Argentina

Art. X, 10 Stat. 1005, 1009, effective 1853

Austria

Art. VI, 47 Stat. 1876, 1880, effective 1928

China

Art. XIV, 63 Stat. 1299, 1311, effective 1946

Costa Rica

Art. IX, 10 Stat. 916, 921, effective 1851

Estonia 

Art. VI, 44 Stat. 2379, 2381, effective 1925

Honduras

Art. VI, 45 Stat. 2618, 2622, effective 1927

Ireland

Art. III, 1 US 785, 789, effective 1950

Italy

Art. XIII, 63 Stat. 2255, 2272, effective 1948

Latvia

Art. VI, 45 Stat. 2641, 2643, effective 1928

Liberia

Art. VI, 54 Stat. 1739, 1742, effective 1938

Norway

Art. VI, 47 Stat. 2135, 2139, effective 1928

Paraguay

Art. XI, 12 Stat. 1091, 1096, effective 1859

Spain

Art. V, 33 Stat. 2105, 2108, effective 1902

Switzerland

Art. II, 11 Stat. 587, 589, effective 1850

Yugoslavia Serbia

Art. IV, 22 Stat. 963, 964, effective 1881



Countries with Expired Treaties Providing

Reciprocal Exemption from Military Service 

El Salvador

Art. VI, 46 Stat. 2817, 2821 (effective 1926 to February 8, 1958)

Germany

Art. VI, 44 Stat. 2132, 2136 (effective 1923 to June 2, 1954)

Hungary

Art. VI, 44 Stat, 2441, 2445 (effective 1925 to July 5, 1952)

Thailand (Siam)

Art. 1, 53 Stat. 1731, 1732 (effective 1937 to June 8, 1968)


4. Documentation and Evidence 


The Application for Naturalization (Form N-400) and Request for Certification of Military or Naval Service (Form N-426) contain questions pertaining to discharge due to alienage or foreign nationality. The fact that an applicant is exempted or discharged from service in the U.S. armed forces on the grounds that he or she is a foreign national (alien) may impact the applicant’s eligibility for naturalization.


Selective Service and military department records are conclusive evidence of service and discharge.[9] See 8 CFR 315.3. Proof of an applicant’s request and approval for an exemption or discharge from military service because the applicant is a foreign national may be grounds for denial of the naturalization application.[10] See INA 315. See 8 CFR 315.2. 


B. Deserters or Persons Absent Without Official Leave (AWOL) 


An applicant who is convicted by court martial as a deserter may be permanently barred from naturalization.[11] See INA 314. A person not ultimately court martialed for being a deserter or for being Absent without Official Leave (AWOL), however, is not permanently barred from naturalization. 


An applicant who deserted or was AWOL during the relevant period for good moral character may be ineligible for naturalization under the “unlawful acts” provision.[12] See Part F, Good Moral Character, Chapter 5, Conditional Bars for Acts in Statutory Period, Section M, Unlawful Acts. 





Footnotes


1. [^] 

 See INA 315. See 8 CFR 315.2.

2. [^] 

 See 8 CFR 315.1. The Ninth Circuit has found that an exemption from voluntary military service is not a permanent bar under INA 315. See Gallarde v. I.N.S., 486 F.3d 1136 (9th Cir 2007). INA 329 has similar language about exemptions, and that language has been found to cover discharges based on alienage even in cases of voluntary enlistment. See Sakarapanee v. USCIS, 616 F.3d 595, (6th Cir 2010). Officers should consult with local OCC counsel in handling discharges based on alienage.

3. [^] 

 See 8 CFR 315.2(b).

4. [^] 

 See In re Watson, 502 F. Supp. 145 (D.C. 1980).

5. [^] 

 However, an applicant who voluntarily enlists in and serves in the U.S. armed forces after applying for and receiving an exemption from military service on the basis of alienage is not exempt from the permanent bar.

6. [^] 

 “Treaty national” means a person who is a national of a country with which the United States has a treaty relating to the reciprocal exemption of aliens from military training or military service.

7. [^] 

 See 8 CFR 315.2(b).

8. [^] 

 See 8 CFR 315.4.

9. [^] 

 See 8 CFR 315.3.

10. [^] 

 See INA 315. See 8 CFR 315.2

11. [^] 

 See INA 314.




Updates


Date Details
January 7, 2013
POLICY ALERT

Comprehensive Citizenship and Naturalization Policy Guidance

​USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual.

Read more »


Current as of April 8, 2014