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] 

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] 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] 

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 applicant did not request or apply for the exemption from military service, but such exemption was automatically granted by the U.S. Government; [4] 

  • 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;

  • The applicant applied for and received an exemption from military service on the basis of alienage, but was subsequently inducted into the U.S. armed forces or the National Security Training Corps; [5] 

  • 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

  • Prior to requesting the exemption from military service, the applicant was a “treaty national” [6] who had served in the armed forces of the country of which he or she was a national. [7] 

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] 

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] 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] 

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] 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] 

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. SeeGallarde 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.

12. [^] See Part F, Good Moral Character, Chapter 5, Conditional Bars for Acts in Statutory Period, Section M, Unlawful Acts [12 USCIS-PM F.5(M)].

8 CFR 316.5(b)(6) - Residence for certain spouses of military personnel

8 CFR 316.6 - Physical presence for certain spouses of military personnel

8 U.S.C. 1443a - Overseas naturalization for service members and their qualifying spouses and children

INA 101(f) - Definition of good moral character

INA 314 - Ineligibility to naturalization of deserters from U.S. armed forces

INA 315 - Citizenship denied alien relieved of service in armed forces because of alienage

INA 316, 8 CFR 316 - General requirements for naturalization

INA 328, 8 CFR 328 - Naturalization through peacetime military service for one year

INA 329, 8 CFR 329 - Naturalization through military service during hostilities

INA 332, 8 CFR 332 - Naturalization administration, executive functions

Appendices

Legislation Assisting Military Members and their Families Obtain Immigration Benefits

Appendix: Legislation Assisting Military Members and their Families Obtain Immigration Benefits

The table below provides some of the major legislative amendments that have aimed at assisting qualified military personnel and their eligible family members to become U.S. citizens or to acquire other immigration benefits, or both.

Major Legislative Amendments Assisting Military Members and their Eligible Relatives to Become U.S. Citizens or to Acquire Other Immigration Benefits

Act of May 9, 1918 (40 Stat. 512)

  • Accorded World War I servicemen certain exemptions from the then existing naturalization requirements

  • First statute to provide for overseas processing; however, petitions that were filed and not acted upon by the courts were declared invalid before May 25, 1932 [1]

Modifications of 1918 Act [2]

  • Under certain circumstances resident aliens who had departed from the United States and had served honorable in the military or naval forces of an allied country during World War I were granted special naturalization

Second War Powers Act of March 27, 1942 (amending Nationality Act of 1940)

  • Provided for the expeditious naturalization of members of the U.S. armed forces serving in the United States and abroad

  • Provided for the naturalization of non-citizens serving during the war; the law permitted naturalization of those who did not meet requirements

  • Section 702, authorized the actual naturalization of World War II servicemen outside the United States

  • First time the Service had administrative authority to conduct naturalizations

Legislation of December 7, 1942 (amending Nationality Act of 1940)

  • Addition of section 323a

  • Granted special naturalization privileges to World War I veterans

  • Embraced persons who served with the United States military or naval forces at any time after April 20, 1898, and before July 5, 1902 (Spanish-American War), as well as persons who served on the Mexican border between June 1916 and April 1917 as members of the Regular Army or National Guard (expired December 8, 1943)

Act of June 1, 1948; Immigration and Nationality Act

  • Added section 324A to the Act of October 14, 1940 (Nationality Act of 1940)

  • Revised, modified, and made permanent the earlier provisions for the expeditious naturalization of persons who served honorably in the United States armed forces during either World War I or II

Lodge Act, June 30, 1950 (64 Stat. 316)

  • Was periodically extended during the 1950s, finally expiring on July 1, 1959

  • The Act authorized naturalization under INA 329 of an alien who enlisted or reenlisted overseas under the terms of the Act; subsequently entered the United States, American Samoa, Swains Island, or the Canal Zone pursuant to military orders; completed five years of service; and was honorably discharged

Korean Hostilities; Act of June 30, 1953 (Pub. L. 86)

  • Provided for the expeditious judicial naturalization of aliens, upon completion of at least 90 days' active and honorable service in the United States Armed Forces during a specified period (June 25, 1950 - July 1, 1955) extending beyond the termination date of the Korean conflict

  • Under the statute, all petitions had to be filed before January 1, 1956 

Vietnam Hostilities Act of October 24, 1968 (82 Stat. 1343)

  • Including Vietnam Hostilities to add as qualifying, service during a period beginning February 28, 1961, and ending on the termination fixed by the President

  • By Executive Order 12081, September 18, 1978, the President terminated the period of Vietnam hostilities as of October 15, 1978

  • Allowed the designation by executive order such periods when the armed forces of the United States are engaged in armed conflict with a hostile foreign force

Grenada 15 Executive Order 12582 (February 2, 1987) [3]

  • Although President Reagan designated the Grenada campaign as a period of hostilities, a federal court invalidated it entirely because, in contravention of statutory guidelines for such designations, the executive order attempted to limit the expedited naturalization benefit to persons who served in certain geographic areas and the record showed that the President would not have designated the campaign as a period of hostilities without the geographic limitations

Naturalization of Natives of the Philippines (WWII Service), Sec. 405 of Pub. L. 101-649

  • Addressed by Congress in 1990 by amending INA 329 (IMMACT90)

  • Such veterans were exempted from the requirement of having been admitted to lawful permanent residence to the United States or having enlisted or reenlisted in the United States

  • Subsequent amendments enabled naturalization processing to be conducted in the Philippines

  • Only applied to applications filed by February 2, 1995

Hmong Veterans’ Naturalization Act of 2000

  • For Hmong guerilla units that aided the U.S. military during the Vietnam War era

  • Provided an exemption from the English language requirement and special consideration for civics testing for Laotian refugees who supported the U.S. armed forces as members of guerrilla or irregular forces in Laos during the Vietnam War period of hostilities

  • Only applied to naturalization applications filed by a veteran or spouse, within three years after May 26, 2000, or by a veteran’s widow within three years after November 1, 2000

National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136)

  • Pub. L. 108-136 was enacted on November 24, 2003 and amended certain military-related immigration provisions of the INA, to include:

  • Reduced the required period of military service from three years to one year under INA 328 

  • Exempted all fees from naturalization applications filed under INA 328 and 329 by eligible service members and certain veterans 

  • Added provision that citizenship obtained through INA 328 and 329 may be revoked if the person is separated from the U.S. armed forces under other than honorable conditions before the person has served for a period or periods aggregating five years 

  • Added under 8 U.S.C. 1443a that DHS must ensure that any filings, interviews, oath ceremonies, or other proceedings relating to naturalization of service members and certain military family members are available abroad through U.S. embassies, consulates, and U.S. military installations overseas as practical 

  • Extended benefits under INA 329(a) to those who serve or served as a member of the Selected Reserve of the Ready Reserve 

  • Extended certain immigration benefits to surviving spouses, children and parents of U.S. citizen service members (including those granted citizenship posthumously under INA 329(a) [4] 

National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181)

  • Pub. L. 110-181 was enacted on January 28, 2008 and amended certain military-related immigration provisions of the INA focused on qualifying spouses or children of members of the U.S. armed forces, to include:

  • Added INA 284(b) to make clear that the lawful permanent resident status of a service member’s spouse or child is not jeopardized because the spouse or child resided abroad, as authorized by official orders, with the service member. This provision clarifies that USCIS must not treat such absences as abandonment or relinquishment of the spouse or child’s lawful permanent resident (LPR) status [5]

  • Added INA 319(e) to allow the LPR spouse of a service member to count any qualifying time spent abroad on official orders as continuous residence and physical presence in the United States. Also permits the spouse to complete the naturalization process overseas

  • Added INA 322(d) to allow the U.S. citizen parent and service member of a child filing for naturalization to count time abroad under military orders as physical presence in the United States. Also permits the child to complete the naturalization process overseas

Kendell Frederick Citizenship Assistance Act (KFCAA) (Pub. L. 110-251)

  • The KFCAA was enacted on June 26, 2008 

  • Requires DHS to use the fingerprints provided by an individual at the time the individual enlisted in the U.S. armed forces (referred to as “OPM” or “enlistment” fingerprints) or fingerprints the applicant previously submitted to USCIS for another application to satisfy the fingerprint requirement

  • If DHS determines that new biometrics would result in more timely and effective adjudication of the individual’s naturalization application, DHS must inform the applicant of this determination and provide the applicant with information on how to submit fingerprints

  • Requires USCIS to adjudicate applications for naturalization filed by active-duty members of the U.S. armed forces serving abroad within 180 days of the receipt of responses to all background checks

Military Personnel Citizenship Processing Act (MPCPA) (Pub. L. 110-382)

  • The MPCPA was enacted on October 9, 2008

  • Requires USCIS to complete applications for naturalization filed by service members (and certain spouses) within six months of receipt or notify the applicant of the delay

  • Six-month notification letters must include the reason for delay and an estimated adjudication date

Footnotes


1. [^] See Application of Campbell, 5 F.2d 247 (E.D. Wash. 1925). See Op. Sol. of Labor, Jan, 1926, CO file 79/9.

2. [^] See Acts of July 19 and November 6, 1919, May 26, 1926, March 4, 1929, May 25, 1932, June 24, 1935, August 23, 1937, June 21, 1939, December 7, 1942.

3. [^] See Executive Order 12582, signed on February 2, 1987 (52 FR 3395, February 4, 1987). In consideration of Matter of Reyes, 910 F. 2d 611 (9th Cir. 1990), Executive Order 12582 was revoked by Executive Order 12913, effective February 2, 1987, (59 FR 23115, May 4, 1994).

4. [^] See Sec. 1703 of PL 108-136.

5. [^] See Sec. 673 of PL 110-181.

POLICY ALERT - Comprehensive Citizenship and Naturalization Policy Guidance

January 07, 2013

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

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