At Wilner & O'Reilly we proudly support our men and women in uniform and also recognize there are a substantial number of Philippine-Americans who serve in our armed forces. Service in the Armed Forces deserves great recognition which the United States has rewarded with several adjustments in immigration laws for members of the Air Force, Army, Navy and Marines.
One of the most important impacts of military service on the Naturalization process is the ability of an individual who has served during a time of war to Naturalize from legal permanent resident status without the three or five year residency requirement. Now recent changes signed into law by President Bush allow recently naturalized members of the Armed Forces to in turn naturalize their children regardless of where they or their children are located.
There are currently a number of requirements which must be satisfied before a U.S. Citizen parent can attempt to naturalize a child (under age of 18) who was born outside the United States and continues to live outside the United States. Among these requirements, the United States Citizen parent must have been physically present in the United States or its possessions such as Guam or Puerto Rico for a period of five years and the child who is residing outside of the United States must be in the legal and physical custody of the U.S. citizen parent.
With the provisions recently signed into law a member of the U.S. Armed Forces may now file petitions for their children even if they are stationed abroad and living with their child outside of the United States. Under the new provisions, a member of the armed services may count towards the five year presence requirement any time he or she spent outside the country while under orders from the military. In addition that person's child is not required to enter the United States in temporary lawful status to acquire citizenship but may complete the process while in the custody of the U.S. Citizen parent overseas.
In other words an U.S. Citizen member of the Armed Services who reaches his fifth year of citizenship while stationed outside the United States and whose child is living with them where they are stationed, may file for that child's naturalization without a return to the United States.
It should be noted that this additional benefit regarding accrual of residency during citizenship and filing for a child while outside the United States is made available only to biological and adopted children and is not extended to step-children acquired through marriage.
As always the rules governing the definition of who is a qualifying "child", "residency", and circumstances of discharge from the military can affect the outcome of an application. For these reasons it is advisable to seek qualified immigration counsel and review all of the facts prior to filing any papers with USCIS.
Robert J. DuPont is an attorney with the law firm of Wilner & O'Reilly. Mr. DuPont Graduated from Yale University and USC Law School and is admitted to the California Supreme Court, and Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals. Mr. DuPont is a regular speaker with ILW, and past chairman of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with a 10 year practice in the field of immigration law as well as influencing Department of State and USCIS practices and policies through Federal District Court litigation including a Ninth Circuit Court of Appeals decision on V-Visas eliminating age-out of minor V-visa recipients.