Section Review

The week of July 20, 2009, Dr. Brown¹ made immigration history. Brown entered a field office of the U.S. Citizenship and Immigration Service (USCIS) as a temporary worker nonimmigrant visa holder, and emerged two hours later as a U.S. citizen.² Brown was the first person to naturalize pursuant to a joint USCIS and Department of Defense (DOD) pilot program called Military Accessions Vital to the National Interest, or MAVNI. In exchange for serving in the U.S. Army Reserve Medical Corps as a dentist, Brown skipped several years of processing time involved in obtaining permanent residency. He also skipped the mandatory five-year residency and physical presence requirements. Brown went straight from nonimmigrant to U.S. citizen in less than a month.³

MAVNI permits nonimmigrants with medical training and/or certain language skills to naturalize upon enlistment in the armed forces without first obtaining permanent resident status (colloquially known as a green card). The purpose of this article is to explain the legal underpinnings, qualifications and risks and benefits of the MAVNI program.

Immigration and Nationality Act (INA) section 329 (8 U.S.C. § 1440), or the wartime military naturalization statute, makes the MAVNI program possible. This statute allows individuals who served or are serving in the U.S. armed forces during a time of war or hostilities to naturalize on an expedited basis using a significantly simpler set of qualifications. Specifically, it allows individuals who served in the U.S. military, air or naval forces during World Wars I⁴ and II,⁵ the Korean⁶ and Vietnam⁷ hostilities, and other periods of hostilities as designated by executive order, to naturalize on an expedited and simplified basis. On July 3, 2002, President George W. Bush issued an executive order allowing expedited naturalization pursuant to INA § 329 for non-citizens serving on active duty in the U.S. armed forces from Sept. 11, 2001 to a date to be determined by further executive order.⁸ Wartime naturalization applicants must serve honorably, and if separated from the service, separated under honorable conditions.⁹ Additionally, applicants must be either physically present in the United States or onboard a U.S. naval vessel on the day of their enlistment or re-enlistment, or are subsequently admitted to the United States as a permanent resident.

Individuals who do not serve honorably, separate from the service on account of alienage, as a conscientious objector, or refuse to wear the uniform, are excluded from naturalization. Also, citizenship may be revoked if an individual who is granted citizenship while serving in the military or naval forces separates from the service under other than honorable conditions.¹⁰

When compared against the normal naturalization regime, the wartime naturalization statute is very liberal. The Immigration and Nationality Act normally requires naturalization applicants to be admitted for permanent residence, reside in and be physically present in the United States for five years, possess good moral character, and be at least 18 years old.¹¹ The wartime naturalization statutes specifically waives the age requirement, the requirement that the applicant be admitted for permanent residence, the five-year residency and physical presence requirements, and truncates the good moral character requirement to one year prior to filing.¹² Unlike the regular naturalization regime, which requires applicants to possess good moral character,¹³ naturalization pursuant to the wartime naturalization statute is a defense to deportation.¹⁴

The Department of Defense controls access to the wartime naturalization process because DOD controls enlistment into the armed forces. Federal law determines who may and who may not enlist in the armed forces. It limits enlistment to U.S. citizens, Lawful Permanent Residents, and non-citizen U.S. nationals.¹⁵ However, the military enlistment statutes permit the armed forces to enlist other non-citizens if the secretary of defense determines that the enlistment is in the national interest.¹⁶ On Nov. 28, 2008, the secretary of defense created MAVNI by signing a memorandum stating that is was in the national interest to recruit non-citizens into the armed forces.¹⁷ By creating MAVNI, the Department of Defense seeks to leverage its access to the very simple and liberal wartime naturalization statute to attract and obtain the services of highly skilled and highly educated nonimmigrants.

On Feb. 23, 2009, the Department of the Army announced that it would recruit two different classes of nonimmigrants: health care workers and individuals with knowledge of certain languages and cultures.¹⁸ In order to qualify to enlist under MAVNI, the applicant must be lawfully present in the United States in one of the following nonimmigrant statuses: E, F, H, I, J, K, L, M, O, P, Q, R, S, T, TC, TD, TN, U, V, TPS, or asylee/refugee.¹⁹ MAVNI enlistees are required reside in the United States in one of the above listed nonimmigrant status for two years prior to the enlistment. Individuals holding "B" visitor status or Visa Waiver status are not eligible to apply for enlistment.

Noncitizens who entered the United States without inspection, have failed to maintain their nonimmigrant status or have departed the United States for any single period of more than 90 days in the last two years are not eligible to enlist.²⁰ Additionally, MAVNI enlistees are required to pass background checks and skill verification just like any other individual desiring to join the Army.²¹

Upon enlistment, health care workers such as nurses, physicians, surgeons, dentists and veterinarians are commissioned as officers in the Army Medical Corps, and are obligated to serve either on active duty in the regular Army for three years, or in the Army Reserve for six years.²² Individuals with knowledge of the following languages and cultures are eligible to enlist: Albanian, Amharic, Arabic, Azerbaijani, Bengali, Burmese, Cambodian-Khmer, Chinese, Czech, Hausa, Hindi, Hungarian, Igbo, Indonesian, Korean, Kurdish, Lao, Malay, Malayalam, Moro, Nepalese, Persian [Dari and Farsi], Polish, Punjabi, Pushtu (also known as Pashto), Russian, Sindhi, Sinhalese, Somali, Swahili, Tamil, Turkish, Turkmen, Urdu and Yoruba. Language-skilled MAVNI enlistees are required to serve on active duty in the regular Army for four years.

Once and assuming that the Army accepts the nonimmigrant, and the nonimmigrant has signed the enlistment contract and taken the oath of enlistment, the nonimmigrant becomes eligible to naturalize pursuant to the wartime naturalization statute.

In order to avoid any confusion as to the new soldier's immigration status, the Army requires the new soldier to file their naturalization application shortly after enlistment. USCIS expedites the adjudication of MAVNI military naturalization applications.²³ USCIS is coordinating the adjudication of the naturalization application and administration of the oath of citizenship concurrently with graduation from the Army's basic training.²⁴ Members of the private bar represent health care workers enlisting in the Army reserve. USCIS expedites the adjudication of these cases, including flexible interview scheduling²⁵ and a same-day oath ceremony.

Nonimmigrant spouses and minor children also benefit from MAVNI. Nonimmigrant spouses and minor children may adjust status to lawful permanent resident as the immediate relative of a U.S. citizen once the MAVNI enlistee naturalizes.²⁶ As the spouse of a U.S. citizen, the spouse of the MAVNI enlistee may naturalize after three years of permanent residency, so long as the spouse lives in marital union with their U.S. citizen spouse.²⁷ Under the Child Citizenship Act of 2000, minor children who reside with their U.S. citizen parent are granted U.S. citizenship upon their admission as a lawful permanent resident.²⁸

Potential complications arise when the former nonimmigrant and newly minted U.S. citizen was a J-1 nonimmigrant that is subject to the two-year home residency requirement. The J-1 visa program was created to allow individuals to come to the United States to participate in cultural exchange programs.²⁹ In order to ensure that J-1 nonimmigrants depart the United States at the end of their program, certain individuals who enter the United States as J-1 exchange visitors may not be admitted for permanent residency in the United States until they either reside in their country of birth or last residence for two years or obtain a waiver of the home residency requirement.³⁰ The Immigration and Nationality Act extends the two-year home residency requirement to the spouse and minor children that accompany the J-1 exchange visitor.³¹ While the two-year home residency requirement will not prevent the grant of citizenship under the wartime naturalization statute, it may prevent the spouse and minor children from adjusting status or receiving an immigrant visa. Spouses and minor children of J-1 MAVNI enlistees may be inadmissible, and may require a waiver of the two-year home residency requirement even though the principal J-1 visa holder does not require a waiver.

Potential MAVNI enlistees should also examine the costs and benefits of enlisting in the U.S. Army. MAVNI may be an alternative path to immigrate for an employment-based immigrant who is otherwise stuck as a nonimmigrant for a period of years or decades waiting for an immigrant visa to become available.³² Service in the U.S. Army would release an individual from the perceived servitude of temporary worker nonimmigrant status and grant the permanent right of abode in the United States and unrestricted access to the U.S. labor market.

Service in the military during a time of war is not without personal risks. Conservative talk radio host Rush Limbaugh often states that the purpose of the armed forces is to kill people and break things.³³ Service in the Army in a theater of war involves shooting people and being shot at. A language specialist enlistee may find themselves in the unenviable position of being sent back to live among his or her former countrymen, this time wearing the uniform of and working on behalf of an armed force that is perceived as an occupier and/or the enemy.³⁴ An Army Reserve health care professional could be called up to active duty and sent to a combat theater for several years. The health care professional may be forced to leave a lucrative practice to serve in the U.S. Army for a fraction of the pay the individual received in civilian life.³⁵ Additionally, although Army health care professionals do not normally accompany troops on combat operations, Army physicians have died in the Iraqi theater of war.³⁶ Finally, MAVNI enlistees are not truly free from the immigration system upon naturalization. U.S. citizenship can be revoked if the enlistee fails to serve honorably and is discharged under other than honorable conditions.³⁷

Brown's naturalization application was adjudicated in less than a month. By agreeing to serve in the U.S. military, Brown saved roughly seven years of immigration processing time. The U.S. Army is using its access to favorable naturalization statutes to attract talent needed to effect its mission. Although limited in scope to individuals with medical and language skills, to the right candidate, MAVNI may make a reasonable alternative to employment-based immigration.

Notes

1.  Dr. Brown is a pseudonym used at the request of the Army to protect the applicant's family members in Brown's native country.

2.  "Dr. Brown," The Blog @Homeland Security, http://www.dhs.gov/journal/theblog/labels/MAVNI.html (July 25, 2009, 9:00 a.m.).

3.  Id.

4.  April 6, 1917 to November 11, 1918. 8 C.F.R. § 329.1(2) (2009).

5.  September 1, 1939 to December 31, 1946. 8 C.F.R. § 329.2(a)(2) (2009).

6.  June 25, 1950 to July 1, 1955. 8 C.F.R. § 329.2(a)(3) (2009).

7.  February 28, 1961 to October 15, 1978. 8 C.F.R. § 329.2(a)(4) (2009).

8.  Exec. Order No. 13,269, 67 Fed. Reg. 45,287 (July 8, 2002).

9.  The statute directs the executive department in which the applicant served to determine the status of service and to provide the applicant with evidence of such service. USCIS requires military naturalization applicants to submit a duly authenticated form N-426 as evidence of military or naval service.

10.  INA § 329(c), 8 USC § 1440(c) (2006).

11.  INA § 316, 8 USC § 1427 (2006).

12.  8 C.F.R. § 329.2(d) (2009).

13.  See INA § 101(f), 8 USC § 1101(f) (2006 & Supp. I 2008), for the definition of good moral character.

14.  United States ex rel. Walther v. Dist. Director of Immigration & Naturalization, 175 F.2d 693 (2nd Cir. 1949); Petition of Warhol, 84 F.Supp. 543 (D.C. Minn. 1949); but see Duenas v. U.S., 330 F.2d 726 (9th Cir. 1964) (holding that a noncitizen that has a final order of deportation was not permitted to naturalize pursuant to INA § 329).

15.  10 USC § 504(b)(1) (2006).

16.  10 USC § 504(b)(2) (2006).

17.  Margaret D. Stock, Ten Things That Immigration Lawyers Should Know About the Army's New Non-Citizen Recruiting Program, 14-6 Bender's Immigr. Bull. 1 (Mar. 15, 2009).

18.  Id.

19.  Id. at 2. Individuals that have been granted asylum or refugee status are eligible. Individuals with a pending asylum application are not eligible.

20.  Id.

21.  Id. at 2-3.

22.  MAVNI Fact Sheet 1, available at http://www.defenselink.mil/news/MAVNI-Fact-Sheet.pdf.

23.  "Dr. Brown," The Blog @Homeland Security, http://www.dhs.gov/journal/theblog/labels/MAVNI.html (July 25, 2009, 9:00 a.m.).

24.  Guidance for Designated School Officials on F and M Student Enlistment in the U.S. Military Under the Military Accessions Vital to the National Interest Program (MAVNI): 0901-01, available at http://www.ice.gov/doclib/sevis/pdf/mavni_faq_111009.pdf.

25.  From the author's experience and unlike the normal naturalization process where CIS mail the applicant and counsel an appointment notice with a fixed date and time to appear in a CIS field office, the local CIS field office contacts MAVNI naturalization applicants and/or counsel via telephone or e-mail and asks when they would like to appear.

26.  INA § 201(b), 8 USC § 1151(b) (2006) and INA § 245, 8 USC §1255 (2006 & Supp. I 2008). Derivative family members will lose their nonimmigrant status upon the naturalization of the principal nonimmigrant. However there is no requirement that a nonimmigrant derivative spouse and minor child maintain nonimmigrant status to adjust because they are now the immediate relative of a U.S. citizen. INA §245 (c), 8 USC §1255 (c) (2006).

27.  INA § 319(a), 8 USC § 1430(a) (2006).

28.  INA § 320, 8 USC § 1431 (2006).

29.  INA § 101(a)(15)(J), 8 USC § 1101(a)(15)(J) (2006).

30.  INA § 212(e), 8 USC § 1182(e) (2006).

31.  The act states, "[n]o person admitted under section 101(a)(15)(J)" that is subject to the two year foreign residency requirement shall be permitted to receive an immigrant visa. This statute includes spouses and minor children of J-1 visa holders who are admitted pursuant to INA § 101(a)(15)(J).

32.  Charles Kuck, Get In The Line? What Line? The Tragic Tale of Employment Based Immigrant Visa Delays, AILA Leadership Blog, http://ailaleadership.blogspot.com/2009/10/get-in-line-what-line-tragic-tale-of.html (Oct. 24, 2009 at 9:04 a.m.).

33.  Rush Limbaugh, See, I Told You So 290 (Pocket Books 1993).

34.  Bruce Falconer, Military Translators at War, Mother Jones, Mar. 23, 2009 (describing the personal harm that has befallen civilian Iraqi translators working for the U.S. Army).

35.  Tracy L. Settle, Maintaining Small Business Support in Times of Increased Army National Guard Utilization: An Impending Crisis (Mar. 15, 2006) (masters thesis, U.S. Army War College).

36.  Damon Adams, Top U.S. Military Doctor Dies in Crash, Am. Med. News, Mar. 17, 2007 (describing the death and paying tribute to Col. Brian D. Allgood who died in a plane crash in Iraq and Maj. Mark D. Taylor who died as a result of wounds sustained during a rocket attack on his living quarters in Fallujah, Iraq).

37.  INA § 329(c), 8 USC § 1440(c) (2006).

The Author

Richard M. Green, who practiced immigration and nationality law in North Grafton, Mass., recently moved to California. A graduate of Chapman University School of Law in Orange, Calif., Green is admitted to practice before the courts of the Commonwealth of Massachusetts and the State of California. He also taught immigration and nationality law at Anna Maria College in Paxton, Mass.