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US Court Clears Path for Fast-Track Citizenship for Foreign-Born Military Service Members

FILE - A cadet attends an annual Memorial Day commemoration at the Los Angeles National Cemetery in Los Angeles, May 25, 2020.

For nearly the past 80 years, the United States has offered a path to citizenship for foreigners who volunteer to serve in the American military. Under the Nationality Act of 1940, foreign-born military service members whose superior officers certify that they are serving with honor can use an expedited process to seek U.S. citizenship.

That process changed in October 2017, when the Trump administration added new requirements for applicants. Instead of being able to start the application process soon after reporting to basic training with at least one day of service, green card holders first had to complete their military training requirements, have at minimum 180 consecutive days of active-duty service or at least one year of satisfactory service in the selected reserve, and pass an extensive background check.

At the time, Stephanie Miller, director of military accession policy at the Department of Defense, explained that "while the department recognizes the value of expedited U.S. citizenship achieved through military service, it is in the national interest to ensure all current and prospective service members complete security and suitability screening prior to naturalization."

FILE - Army members hold the U.S. flag as they attend an annual Memorial Day ceremony at the Intrepid Museum in New York, May 29, 2017.
FILE - Army members hold the U.S. flag as they attend an annual Memorial Day ceremony at the Intrepid Museum in New York, May 29, 2017.

Last month, a federal judge ruled that policy was unlawful, clearing the way for the fast-track citizenship process to resume.

U.S. District Judge Ellen Huvelle ruled August 26 that according to immigration law, the Defense Department must provide the paperwork to service members who requested the needed citizenship certification so they can satisfy "one day of qualifying service."

VOA asked the Department of Defense for a comment on the ruling, but the department referred queries to the U.S. Department of Justice. DOJ officials did not disclose whether they might appeal the decision and said they had no comments about the judge's recent ruling.

Scarlet Kim, staff attorney with the National Security Project at the American Civil Liberties Union, said she celebrated the decision.

"We're pleased that our clients and thousands of others like them can finally benefit from the expedited path to citizenship they have rightfully earned through their honorable military service," she said.

Foreign-born soldiers sue

The lawsuit was filed by seven permanent residents and one Deferred Action for Childhood Arrivals beneficiary serving in the U.S. military. They argued that the measures implemented in 2017 have caused delays in obtaining security clearances, affected in a negative way their military careers, and essentially blocked their paths to naturalization while honorably serving the country.

The decision affects legal permanent residents like R. Hussain, who came from Pakistan to the United States in 2013 under the Fulbright Foreign Student Program while studying international relations at the Forman Christian College. Fearing retaliation, Hussain asked VOA to use only an initial for a first name.

Halfway through that program, the then-22-year-old Hussain applied for asylum in the U.S.

Hussain is from the Gilgit-Baltistan region — a disputed border area between Pakistan and India.

"After four or five months [in the U.S.] … I talked to a lawyer and he said my case 'is strong.' ... Finally in 2018, they approved my labor [certification], then I waited one more year for my green card. Once I got my green card [in 2019], I just joined the Air Force," Hussain said. A green card allows the holder to live and work lawfully anywhere in the United States and qualify for U.S. citizenship after a specified number of years.

Joining a U.S. military branch in the selected reserve would give him the option for expedited citizenship and a chance to see his family again.

One-day policy

Experts said expediting the citizenship process can help ensure foreign-born soldiers have the legal protections necessary to perform their military jobs. Because service members deploy overseas often and can be sent to their original country, they would be subjected to that country's laws if they were not American citizens.

But U.S. naturalization through military service can always be taken away. If a member of the armed services does not serve honorably for five years, he or she can lose citizenship.

FILE - In this image provided by the U.S. Army, recent Army basic combat training graduates have their temperatures, taken as a precaution during the coronavirus pandemic, as they arrive at Fort Lee, Va., March 31, 2020.
FILE - In this image provided by the U.S. Army, recent Army basic combat training graduates have their temperatures, taken as a precaution during the coronavirus pandemic, as they arrive at Fort Lee, Va., March 31, 2020.

Margaret Stock, a retired Army lieutenant colonel and immigration lawyer, said the ruling affects "thousands" of people, most of them green card holders and people from American Samoa, Swains Island, the Federated States of Micronesia, the Republic of Palau, and the Republic of the Marshall Islands.

Stock called it shameful that it took three years for the courts to reverse Miller's 2017 memo.

"Thousands of military members suffered delayed naturalization as a result of the memo. The memo also hurt military recruiting because it made it faster for green card holders to naturalize as civilians than as members of the military," she said.

Stock created the Military Accessions Vital to the National Interest program (MAVNI) in 2008. MAVNI brought visa holders in legal status with medical or language skills into the armed services and allowed foreign-born military recruits to earn a fast-track path to American citizenship. In 2016, citing national security concerns, the government stopped recruiting nonimmigrant visa holders to service the military.

Application rate falls

According to court documents, from October 1, 2001, through fiscal year 2018, U.S. Citizenship and Immigration Services has naturalized 129,587 members of the military.

Since the Trump administration announced the new requirements in 2017, the government reported a 72 percent drop in military service members' naturalization applications from pre-policy levels.

As one of the applicants whose application has been held up by the 2017 ruling, Hussain is still waiting for his turn.

"I passed the [citizenship] test," said Hussain. "I did the interview and the [officer] gave me a form and said, 'You passed the test. … Congratulations, we approved your citizenship,' but later on he called me and said, 'We need more evidence.' "

Hussain said he has gone through basic training, applied for expedited naturalization, and in one month, he will have officially served one year in the military. He hopes that with last month's ruling, his superior officers will certify his good standing in the military, clearing the way for him, as a U.S. citizen, to go see his family again.