Chapter 8 - Members of the U.S. Armed Forces

A. Purpose and Background

Under special agreements that the United States maintained after World War II with several Pacific island nations, certain noncitizens residing outside of the United States were allowed to enlist in the U.S. military. During times of specific hostilities, these noncitizens could become naturalized U.S. citizens based upon their active duty service if they met certain qualifications. However, once American military action terminated in Vietnam in 1978, they no longer had this pathway to U.S. citizenship. 

In the years that followed, Congress discovered that many of these noncitizens had served multiple tours of duty but were denied advancement in their military careers because they were not U.S. citizens and so were unable to receive security clearances or become officers. In 1991, Congress passed the Armed Forces Immigration Adjustment Act,^[1] creating a special immigrant category for certain qualifying military members. This provision in essence recognized these noncitizen military members for their years of service to the United States. 

Congress intended the law to be comparable to the special immigrant status awarded to certain U.S. government workers in the Panama Canal and long-term employees of international organizations residing in the United States.^[2]

Sometimes referred to as the “Six and Six program,” adjustment as a special immigrant armed forces member under this law requires either 12 years of honorable, active duty service in the U.S. armed forces or 6 years of honorable, active duty service, if the military member has re-enlisted to serve for an additional 6 years. In addition, these special immigrants may be eligible for immediate citizenship after acquiring lawful permanent resident status, through their service during a designated period of hostilities.^[3]

Special immigrant military members eligible under treaties in effect on October 1, 1991, include nationals of the Philippines, the Federated States of Micronesia, the Republic of Palau, and the Republic of the Marshall Islands. While the treaty for Filipinos no longer exists, sailors from the Philippines who served during the Persian Gulf conflict may still qualify under these provisions; a more direct route to naturalization may also be available.

B. Legal Authorities

• INA 101(a)(27)(K) – Certain armed forces members
• ​INA 203(b)(4) – Certain special immigrants
• ​INA 245; 8 CFR 245 – Adjustment of status of nonimmigrant to that of person admitted for permanent residence
• ​INA 245(g) – Parole provision for special immigrant armed forces members seeking adjustment of status
• ​8 CFR 245.8 – Adjustment of status as a special immigrant under Section 101(a)(27)(K) of the Act
• ​Armed Forces Immigration Adjustment Act of 1991^[4]

C. Eligibility Requirements

To adjust to lawful permanent resident (LPR) status as a special immigrant member of the U.S. armed forces, an applicant must meet the eligibility requirements shown in the table below.^[5]

1. Eligibility to Receive an Immigrant Visa^[11]

An applicant must be eligible to receive an immigrant visa to adjust status.^[12] An adjustment applicant typically establishes eligibility for an immigrant visa through an approved immigrant petition. A special immigrant armed forces member can establish eligibility for an immigrant visa by obtaining classification from USCIS by filing a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360). 

Therefore, in order for a special immigrant armed forces member adjustment applicant to be eligible to receive an immigrant visa, he or she must be one of the following:

• The applicant is the beneficiary of an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) classifying him or her as special immigrant armed forces member;
• The applicant has a pending Form I-360 (that is ultimately approved); or
• The applicant is filing the adjustment application concurrently with the Form I-360 (and the Form I-360 is ultimately approved).

The following provides information how a principal I-360 applicant qualifies for classification as a special immigrant armed forces member: 

• The applicant must have been lawfully enlisted in the U.S. military outside the United States under a treaty or agreement that was in effect on October 1, 1991; 
• ​The applicant must have either served honorably or was enlisted to serve in the U.S. armed forces after October 15, 1978, for a specific time period; 
• The applicant must have served for an aggregate period of either (1) 12 years and received an honorable discharge, or (2) 6 years of honorable active duty service in the U.S. armed forces and have reenlisted for 6 more years of active duty to total at least 12 years of active duty at the time that enlistment ends; and
• ​The applicant must have been recommended for special immigrant classification by the executive department under which the immigrant served or is currently serving.

Once accorded special immigrant classification, these noncitizens could adjust to LPR status, provided they meet the other eligibility requirements for adjustment. 

Treaties in Effect on October 1, 1991

Those eligible under treaties in effect on October 1, 1991, include nationals of:

• Philippines;
• ​Federated States of Micronesia;
• ​Republic of Palau; and
• ​Republic of the Marshall Islands. 

Verifying the Underlying Basis to Adjust Status and Determining Ongoing Eligibility^[13]

The special immigrant armed forces member petition should already be adjudicated and approved when the officer adjudicates the adjustment application. USCIS does not re-adjudicate the special immigrant armed forces member petition at the time of the adjudication of the adjustment application. However, the officer should ensure that the applicant remains classified as a special immigrant armed forces member and thus is eligible to adjust as a special immigrant armed forces member. As a result, there may be instances when USCIS may require the applicant to provide additional evidence to show he or she continues to be classified as a special immigrant armed forces member. In other words, the officer must verify the status of any underlying immigrant petition that forms the basis for adjustment.

2. Bars to Adjustment

Certain adjustment bars do not apply to special immigrant armed forces members and their derivatives.^[14] Furthermore, since these special immigrants and their derivatives are deemed parolees for purposes of adjustment of status, there are other adjustment bars relating to certain immigration statuses that do not apply to them.^[15] If these special immigrants fall under any other adjustment bar,^[16] however, they are not eligible to adjust status.^[17]

3. Admissibility and Waiver Requirements

In general, an applicant who is inadmissible to the United States may only obtain LPR status if he or she obtains a waiver or other form of relief, if available.^[18] In general, if a ground of inadmissibility applies, an applicant must apply for a waiver or other form of relief to overcome that inadmissibility.^[19] If a waiver or other form of relief is granted, USCIS may approve the application to adjust status if the applicant is otherwise eligible. 

The following table specifies which grounds of inadmissibility apply and which do not apply to applicants seeking LPR status based on the armed forces member classification.

4. Treatment of Family Members

The spouse or child (unmarried and under 21 years of age) of a special immigrant armed forces member may, if otherwise eligible, accompany or follow-to-join the principal applicant.^[20] The spouse and child may, as derivative applicants, apply to adjust status under the same immigrant category and priority date as the principal applicant. 

D. Documentation and Evidence

An applicant should submit the following documentation to adjust status as a special immigrant armed forces member: 

• Application to Register Permanent Residence or Adjust Status (Form I-485);
• ​Copy of approval notice or receipt (Form I-797) for the principal applicant’s special immigrant petition (unless the applicant is filing the petition together with Form I-485);^[21]
• Proof of honorable discharge from the U.S. armed forces, if no longer serving;^[22]
• ​Two passport-style photographs; 
• Copy of government-issued identity document with photograph;
• ​Copy of birth certificate; 
• Copy of passport page with nonimmigrant visa (if applicable);
• ​Copy of passport page with admission or parole stamp (if applicable);
• ​Copy of Arrival/Departure Record (Form I-94) or copy of U.S. Customs and Border Protection (CBP) admission or parole stamp on the travel document (if applicable);^[23]
• Any other evidence, as needed, to show that an adjustment bar does not apply;^[24]
• ​Report of Immigration Medical Examination and Vaccination Record (Form I-693);^[25]
• ​Certified police and court records of criminal charges, arrests, or convictions (if applicable);
• Application for Waiver of Grounds of Inadmissibility (Form I-601) or other form of relief (if applicable); and
• ​Documentation of past or present J-1 or J-2 nonimmigrant status, including proof of compliance with or waiver of the 2-year foreign residence requirement under INA 212(e) (if applicable).

In addition, a spouse or child who is filing as a derivative applicant should submit the following:

• A copy of documentation showing relationship to the principal applicant, such as a marriage certificate or adoption decree (if applicable); and
• A copy of the approval or receipt notice (Form I-797) for the principal applicant’s Form I-485 or a copy of the principal applicant’s permanent resident card (Form I-551) (if applicable and not filing together with the principal applicant).

E. Adjudication^[26]

1. Filing

An applicant seeking adjustment of status as a special immigrant armed forces member may file his or her adjustment application with USCIS concurrently with the Form I-360 petition, while the Form I-360 petition is pending, or after USCIS approves the Form I-360 petition (as long as the petition is still valid), provided: 

• USCIS has jurisdiction over the adjustment application;^[27] and
• ​The visa availability requirements are met.^[28]

2. Interview

The officer must schedule the applicant for an in-person interview at the appropriate field office and transfer jurisdiction to that field office for final adjudication in cases where:

• The officer cannot make a decision based on the evidence of record; or
• The applicant does not meet the criteria for an interview waiver.^[29]

If the application appears approvable at the conclusion of the adjustment of status interview, the officer should determine whether the special immigrant armed forces member may be eligible for naturalization benefits. The officer should advise the applicant if the applicant is immediately eligible for naturalization upon approval of the adjustment application.^[30]

3. Decision

Approval

The officer must determine that the applicant meets all the eligibility requirements as well as merits the favorable exercise of discretion before approving the application to adjust status as a special immigrant armed forces member or family member.^[31] If the application for adjustment of status is approvable, the officer must determine if a visa is available at the time of final adjudication.^[32]

If approved, USCIS assigns the following codes of admission to applicants adjusting under this category: 

The applicant becomes an LPR as of the date of approval of the adjustment application.^[33]

Denial

If the officer determines that the applicant is ineligible for adjustment, the officer must deny the adjustment application. The officer must provide the applicant a written reason for the denial.^[34] Although there are no appeal rights for the denial of an employment-based adjustment application, the applicant may file a motion to reopen or reconsider. The denial notice should include instructions for filing a Notice of Appeal or Motion (Form I-290B).

F. Post-Adjudication Considerations

If a special immigrant armed forces member who has already been granted permanent residence fails to complete his or her total active duty service obligation for reasons other than an honorable discharge, the special immigrant may become subject to removal proceedings (if removable).^[35] USCIS verifies whether a special immigrant armed forces member has failed to maintain eligibility by obtaining a current Certificate of Release or Discharge from Active Duty (Form DD-214) from the appropriate executive department. 

Footnotes

[^ 1] See Pub. L. 102-110 (PDF), 105 Stat. 555 (October 1, 1991).

[^ 2] See INA 101(a)(27)(E), INA 101(a)(27)(F), INA 101(a)(27)(G), INA 101(a)(27)(I), and INA 101(a)(27)(L). See Chapter 4, Panama Canal Zone Employees [7 USCIS-PM F.4] and Chapter 6, Certain G-4 or NATO-6 Employees and their Family Members [7 USCIS-PM F.6].

[^ 3] See INA 329. See Volume 12, Citizenship and Naturalization, Part I, Military Members and their Families [12 USCIS-PM I].

[^ 4] See Pub. L. 102-110 (PDF), 105 Stat. 555 (October 1, 1991).

[^ 5] See INA 245(a) and (c). See 8 CFR 245. See Instructions to Form I-485. 

[^ 6] See Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed [7 USCIS-PM A.3(B)].

[^ 7] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)]. For information on Visa Availability and Priority Dates, see the DOS Visa Bulletin.

[^ 8] See INA 245(c). See Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 9] For more information, see Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 10] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A] and Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 11] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6] and Part B, 245(a) Adjustment, Chapter 2, Eligibility Requirements, Section C, Eligible to Receive an Immigrant Visa [7 USCIS-PM B.2(C)].

[^ 12] See INA 245(a)(2).

[^ 13] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 14] See INA 245(c)(2) and INA 245(c)(8).

[^ 15] See INA 245(g), providing that these special immigrants are considered parolees for purposes of adjustment under INA 245(a). As parolees, the adjustment bars under INA 245(c)(1), INA 245(c)(3), INA 245(c)(4), and INA 245(c)(5) do not apply.

[^ 16] See INA 245(c)(6) and 245(c)(7). 

[^ 17] See INA 245(c). For more information on the bars to adjustment, see Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 18] See INA 212(a) for the specific grounds of inadmissibility.

[^ 19] See Volume 8, Admissibility [8 USCIS-PM] and Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM]. See Application for Waiver of Grounds of Inadmissibility (Form I-601) and Application for Permission to Reapply for Admission into the United States after Deportation or Removal (Form I-212).

[^ 20] See INA 101(a)(27)(C) and INA 203(d). For the definition of child, see INA 101(b)(1).

[^ 21] See Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).

[^ 22] The applicant may submit a Certificate of Release or Discharge from Active Duty (DD Form 214) for this purpose.

[^ 23] Noncitizens admitted to the United States by CBP at an airport or seaport after April 30, 2013 may be issued an electronic Form I-94 by CBP instead of a paper Form I-94. Such noncitizens may visit the CBP website to obtain a paper version of an electronic Form I-94.

[^ 24] Such as evidence that the INA 245(c)(2) adjustment bar does not apply because the applicant’s failure to maintain status was through no fault of his or her own or for technical reasons. See 8 CFR 245.1(d)(2). See Part B, 245(a) Adjustment, Chapter 4, Status and Nonimmigrant Visa Violations – INA 245(c)(2) and INA 245(c)(8), Section E, Exceptions [7 USCIS-PM B.4(E)].

[^ 25] The applicant may submit Form I-693 together with Form I-485 or later at USCIS’ request. See the USCIS website for more information. For more information on when to submit Form I-693, see Volume 8, Admissibility, Part B, Health-Related Grounds of Inadmissibility, Chapter 4, Review of Medical Examination Documentation [8 USCIS-PM B.4]. 

[^ 26] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review [7 USCIS-PM A.6].

[^ 27] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section D, Jurisdiction [7 USCIS-PM A.3(D)].

[^ 28] The applicant must have an immigrant visa immediately available when he or she filed the adjustment of status application and at the time of final adjudication. See Section C, Eligibility Requirements [7 USCIS-PM F.8(C)].

[^ 29] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 5, Interview Guidelines [7 USCIS-PM A.5].

[^ 30] See INA 329. See Volume 12, Citizenship & Naturalization, Part I, Military Members and their Families, Chapter 3, Military Service during Hostilities (INA 329) [12 USCIS-PM I.3].

[^ 31] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A] and Part B, 245(a) Adjustment [7 USCIS-PM B].

[^ 32] For more information, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

[^ 33] The date of approval is shown in the USCIS approval notice mailed to the applicant; that date is also shown on the actual Permanent Resident Card (Form I-551) the applicant receives after adjustment approval.

[^ 34] See 8 CFR 103.2(b)(19) and 8 CFR 103.3(a). 

[^ 35] See INA 237.