Chapter 3 - Military Service during Hostilities (INA 329)

A. General Eligibility through Military Service during Hostilities

Members of the U.S. armed forces who serve honorably for any period of time during specifically designated periods of hostilities may be eligible to naturalize.[1]

The applicant must establish that he or she meets all of the following criteria in order to qualify: 

  • The applicant may be of any age.

  • The applicant must have served honorably in the U.S. armed forces during a designated period of hostility.

  • The applicant must either be a lawful permanent resident (LPR) 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 or its outlying possessions, including the Canal Zone, American Samoa, or Swains Island, or

    • On board a public vessel owned or operated by the United States for noncommercial service.

  • The applicant must be able to read, write, and speak basic English.

  • The applicant must demonstrate knowledge of U.S. history and government.

  • The applicant must demonstrate good moral character for at least 1 year prior to filing the application until the time of his or her naturalization.

  • The applicant must have 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.

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.[2]

As with all cases, all pertinent background checks, including applicable U.S. Department of Defense (DOD) checks (if required)[3] must be completed before USCIS may interview the naturalization applicant.

B. Honorable Service

Qualifying military service is honorable service in the Selected Reserve of the Ready Reserve or active duty service in the U.S. Army, Navy, Marine Corps, Air Force, or Coast Guard. Service in a National Guard Unit may also qualify.[4]

Honorable service means only service in the U.S. armed forces that is designated as honorable service by the executive department under which the applicant performed that military service.

INA 329 requires both “honorable service” and, if the applicant has separated from service, a separation “under honorable conditions.”[5] Both “Honorable” and “General-Under Honorable Conditions” discharge types qualify as a separation “under honorable conditions” for immigration purposes. Other discharge types, such as “Other Than Honorable,” do not qualify as a separation “under honorable conditions.”

Some applicants previously discharged from the U.S. armed forces may have been reinstated by the U.S. armed forces or may have reenlisted. In such instances, as described above, officers review the characterization (or designation) of the applicant’s current or most recent service and, if applicable, the applicant’s most recent separation, by the executive department under which the applicant performed that military service.

The executive department provides its certification on the Request for Certification of Military or Naval Service (Form N-426) and, in the case of an applicant who has separated from service, on the Certificate of Release or Discharge from Active Duty (DD Form 214), Report of Separation and Record of Service (NGB Form 22), or other official discharge document.

C. National Guard Service

An applicant filing on the basis of military service during hostilities[6] who has National Guard service may qualify if he or she has honorable service in either the U.S. armed forces or in the Selected Reserve of the Ready Reserve.[7] USCIS does not require proof of federal activation for a National Guard applicant if the applicant served in the Selected Reserve of the Ready Reserve during a designated period of hostility.[8]

D. Designated Periods of Hostilities

The Immigration and Nationality Act (INA) and Presidential Executive Orders have designated the following military engagements and ranges of dates as periods of hostilities.[9]

Designated Periods of Hostilities

World War I[10]

April 6, 1917

November 11, 1918

World War II[11]

September 1, 1939

December 31, 1946

Korean Conflict[12]

June 25, 1950

July 1, 1955

Vietnam Hostilities[13]

February 28, 1961

October 15, 1978

Persian Gulf Conflict[14]

August 2, 1990

April 11, 1991

War on Terrorism[15]

September 11, 2001

Present

On July 3, 2002, President George W. Bush issued Executive Order 13269, which has designated a period of hostilities and has permitted the expedited naturalization for noncitizens eligible under INA 329 as of September 11, 2001. The current designated period continues to be a designated period of hostilities for INA 329 purposes until the President issues a new Executive Order terminating the designation.[16]

E. Eligibility as Permanent Resident or if Present in United States at Induction or Enlistment

In general, an applicant who files on the basis of military service during hostilities[17] is not required to be an LPR if he or she was physically present at the time of induction, enlistment, reenlistment, or extension of service in 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.

In addition, an applicant who is lawfully admitted for permanent residence after enlistment or induction is also eligible for naturalization under this provision regardless of the place of enlistment or induction.

F. Conditional Permanent Residence and Naturalization during Hostilities

If the applicant is a conditional permanent resident and is eligible to naturalize on the basis of military service during hostilities[18] without being an LPR based on being in the United States during enlistment or induction, the applicant is not required to file or have an approved Petition to Remove Conditions on Residence (Form I-751) before his or her Application for Naturalization (Form N-400) may be approved.

G. Department of Defense Military Accessions Vital to National Interest Program

The general guidance in this section is from information provided by the Department of Defense (DOD) on its Military Accessions Vital to National Interest (MAVNI) program. USCIS is providing this general information in the Policy Manual to assist potential service members and their families.[19]

1. Military Accessions Vital to National Interest Program

In 2009, DOD authorized the MAVNI pilot program as a recruitment tool to enlist certain nonimmigrants and other noncitizens who have skills that are considered vital to the national interest of the United States.[20] The program applies to certain health care professionals and noncitizens who are fluent in certain foreign languages.[21]

A noncitizen entering active duty status or service in the Selected Reserve of the Ready Reserve may apply for military naturalization after the noncitizen's Request for Certification of Military or Naval Service (Form N-426) has been properly authorized, completed, and signed by the appropriate person authorized by DOD.[22] USCIS is unable to adjudicate a naturalization application without a properly submitted N-426.

2. General Eligibility Requirements

Eligible Candidates

To be eligible for the MAVNI program, the DOD requires applicants to be in one of the following immigration categories or authorized stays at the time of enlistment into the U.S. armed forces:

  • Asylee;

  • Refugee;

  • Beneficiary of Temporary Protected Status (TPS);

  • Person granted deferred action by USCIS under the Deferred Action for Childhood Arrivals (DACA) policy; or

  • Nonimmigrant in any of the following categories: E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, or V.

Valid Status for 2 Years

The DOD requires most applicants for MAVNI to have been in a valid status in one of the eligible immigration categories or authorized stays listed above for at least 2 years immediately preceding the date of enlistment. The applicant is not required to be in the same qualifying category or authorized stay listed above for those 2 years on the date of enlistment. 

The DOD may exempt or waive the 2-year requirement for certain applicants. Specifically, the DOD does not require DACA recipients to meet the 2-year requirement. In addition, the DOD will consider waiving the requirement that an applicant to the MAVNI program be in valid immigration status or within a period of authorized stay at the time of enlistment on a case-by-case basis under certain circumstances.[23]

3. Other Factors to Consider

Nonimmigrants and Absences from United States 

Under DOD guidance, most applicants to the MAVNI program under a qualifying nonimmigrant category at the time of enlistment must not have been absent from the United States for more than 90 days during the 2-year period immediately preceding the date of enlistment.[24] The DOD does not apply this 90-day limitation on absences to DACA recipients.

Foreign Residency Requirement

A nonimmigrant exchange visitor under the J nonimmigrant visa classification may be eligible to apply for the MAVNI program with the DOD. Certain nonimmigrant exchange visitors are subject to a statutory foreign residence requirement.[25] J exchange visitors who enlist in the military through the MAVNI program are not required to comply with the foreign residence requirement in order to naturalize.[26] In addition, the dependent spouse or child of the exchange visitor is not required to comply with the foreign residence requirement.[27]

Adjustment of Status Applicants

The DOD does not disqualify otherwise eligible applicants to the MAVNI program by virtue of having a pending adjustment of status application with USCIS.[28]

H. Veterans Residing Outside the United States

Admission or Parole into United States for Naturalization Interview

Applicants who reside outside the United States and have separated from the military are required to appear for an interview in the United States.[29] All noncitizens must be inspected and admitted or paroled in order to enter the United States.[30]

Eligible veterans seeking to appear for an interview in the United States must apply for admission at a port of entry with U.S. Customs and Border Protection (CBP) and present a visa issued by the U.S. Department of State (DOS),[31] or must be admitted through other lawful provisions.[32]

Interview at Port of Entry

At its discretion, USCIS may coordinate with CBP to have a USCIS officer interview an applicant at a port of entry in cases where the applicant:

  • Is unable to obtain admission or parole into the United States;

  • Provides supporting evidence of his or her unsuccessful attempt to obtain admission or parole into the United States; and

  • Is otherwise eligible for naturalization upon preliminary review.[33]

USCIS may notify the applicant accordingly.

Failure to Appear at Interview

USCIS considers the applicant to have abandoned his or her application and administratively closes the application in cases where the applicant:

  • Fails to appear at his or her scheduled naturalization interview at a port of entry; and

  • Fails to notify USCIS of the reason for nonappearance within 30 days of the scheduled interview.

USCIS considers subsequent correspondence from an applicant within 1 year of the administrative closure a request to reopen the application.[34]

Jurisdiction

The USCIS office having jurisdiction over the applicant’s last residence within the United States or Outlying Possession (OLP) maintains jurisdiction over the naturalization application.[35] If there is no evidence in the application to establish the applicant’s last place of residence in the United States or OLP, the field office should review the service record for the address of record at the time of departure.

If the applicant requests to have the naturalization interview conducted at a USCIS office other than the office having jurisdiction based on the applicant’s last residence, or at a port of entry, the office having jurisdiction may coordinate, if practicable, with the appropriate office to accommodate the request. Even if such a request for an interview is approved, the original office retains jurisdiction over the adjudication of the naturalization application. If USCIS determines that the applicant will be interviewed at a port of entry, the office retaining jurisdiction may elect to travel to the port of entry to conduct the interview or coordinate with the field office closest to the port of entry to conduct the interview.

Footnotes


[^ 1] See INA 329

[^ 2] See INA 329(b). See 8 CFR 329.2(e).

[^ 3] Including Defense Clearance Investigation Index (DCII) queries. See Chapter 6, Required Background Checks [12 USCIS-PM I.6] for information on background checks and fingerprint requirements for applicants applying for naturalization based on military service. Additionally, in certain cases involving applicants recruited through the Military Accessions Vital to the National Interest (MAVNI) program, USCIS requires DOD background and security checks to be completed and reviews any derogatory information DOD obtained regarding an applicant. USCIS does not require any DOD adjudication of the applicant’s suitability for military service, including a Military Service Suitability Recommendation or a Military Service Suitability Determination, to be complete before interviewing or beginning adjudication of a naturalization application, and the outcome of any such DOD adjudication does not determine the outcome of the naturalization adjudication.

[^ 4] See Section C, National Guard Service [12 USCIS-PM I.3(C)].

[^ 5] See INA 329(a). See 8 CFR 329.2(a) and 8 CFR 329.2(b).

[^ 6] See INA 329.

[^ 7] See 8 CFR 329.1. See 10 U.S.C. 10143 for more information on the Selected Reserve of the Ready Reserve.

[^ 8] The National Guard and Reserve service requirements under INA 329 differ from those under INA 328. See Chapter 2, One Year of Military Service during Peacetime (INA 328), Section C, National Guard Service [12 USCIS-PM I.2(C)].

[^ 9] See 8 CFR 329.1 and 8 CFR 329.2.

[^ 10] See 8 CFR 329.1 and 8 CFR 329.2. Declared by Joint Resolution of Congress of April 6, 1917 (40 Stat. 429, Ch. 1) and Joint Resolution of Congress, December 7, 1917 (40 Stat. 429, Ch. 1). Armistice signed, November 11, 1918.

[^ 11] See 8 CFR 329.2. See Proclamation No. 2714, Cessation of Hostilities of World War II, 61 Stat. 1048 (December 31, 1946).

[^ 12] See 8 CFR 329.2.

[^ 13] See 8 CFR 329.2. See Exec. Order No. 12081, Termination of Expeditious Naturalization Based on Military Service, 43 FR 42237 (September 18, 1978).

[^ 14] See 8 CFR 329.2. See Exec. Order No. 12939, Expedited Naturalization of Aliens and Noncitizen Nationals Who Served in an Active-Duty Status During the Persian Gulf Conflict, 59 FR 61231 (November 22, 1994). 

[^ 15] See 8 CFR 329.2. See Exec. Order No. 13269, Expedited Naturalization of Aliens and Noncitizen Nationals Serving in an Active-Duty Status During the War on Terrorism, 67 FR 45287 (July 3, 2002).

[^ 16] See 8 CFR 329.2. See Exec. Order No. 13269, Expedited Naturalization of Aliens and Noncitizen Nationals Serving in an Active-Duty Status During the War on Terrorism, 67 FR 45287 (July 3, 2002).

[^ 17] See INA 329.

[^ 18] See INA 329.

[^ 19] For further information and details of the DOD program, see the DOD MAVNI Fact Sheet (PDF) or contact the DOD. 

[^ 20] The Secretary of Defense authorized the pilot program. See the DOD MAVNI Fact Sheet (PDF).

[^ 21] See sections on health care professionals and eligible languages in the DOD MAVNI Fact Sheet (PDF).

[^ 22] MAVNI enlistees should speak with their commanding officers for additional information regarding the circumstances under which the military departments will sign and certify the Form N-426.

[^ 23] See section on eligibility in the DOD MAVNI Fact Sheet (PDF)

[^ 24] See section on eligibility in the DOD MAVNI Fact Sheet (PDF).

[^ 25] See INA 212(e).

[^ 26] The J exchange visitor is not required to obtain a waiver of the INA 212(e) foreign residence requirement. See INA 329.

[^ 27] A J-1 exchange visitor’s dependent spouse or child is issued a J-2 nonimmigrant visa. 

[^ 28] See Form I-485, Application to Register Permanent Residence or Adjust Status. See section on eligibility in the DOD MAVNI Fact Sheet (PDF).

[^ 29] USCIS does not have statutory authority to conduct naturalization interviews and oath ceremonies overseas for those veterans who reside outside of the United States. See INA 104(a), which grants U.S. Department of State (DOS) authority to determine the nationality of a person who is outside the United States. See 8 U.S.C. 1443a, which authorizes USCIS to conduct naturalization interviews and oath ceremonies for current members of the U.S. armed forces outside of the United States, but does not extend to veterans.

[^ 30] See INA 235(a)(3). A noncitizen may qualify for parole under INA 212(d)(5).

[^ 31] DOS may classify a noncitizen as B-2 visitor if seeking naturalization under INA 329. See 9 FAM 402.2-4(B)(6), Aliens Seeking Naturalization under INA 329.

[^ 32] Other lawful admissions may include, but are not limited to, being admitted through the visa waiver program or being paroled into the United States. See INA 217. See INA 212(d)(5)(A).

[^ 33] See Chapter 6, Required Background Checks [12 USCIS-PM I.6] for information on background checks and fingerprint requirements for applicants applying for naturalization based on military service.

[^ 34] See 8 CFR 335.6.

[^ 35] See INA 329. USCIS should not apply the 3- or 5-year residency requirement if the applicant served during a designated period of hostilities.

Current as of September 16, 2021