Here’s what immigrant milspouses must know about their rights
By Anna Blanch Rabe The last few weeks have been a tumultuous for those of us who are immigrant military...
By Anna Blanch Rabe
The last few weeks have been a tumultuous for those of us who are immigrant military spouses. So what do you need to be aware of, and what do you need to be thinking about right now?
There are a few questions you need to be able to answer for yourself:
- What is your legal status?
- What is your country of origin?
- What should you carry with you?
Why does this matter? The numbers of foreign born and naturalized Americans serving in the US Armed Forces are not insignificant: As of February 2008, this number was upwards of 65,000. Approximately 8 percent of active duty Navy service members are foreign-born or naturalized US citizens. There were also 14,896 foreign-born individuals (22.9 percent of the foreign-born military service population) serving in the Army, 13,436 (20.7 percent) in the Air Force, and 10,104 (15.5 percent) in the Marines (statistics from Migration Policy). No published statistics exist for the number of military spouses who were not born as US citizens.
1. What is your legal status?
If you are a naturalized citizen, then you should be fine. The recent Executive Orders (about immigration, travel from specific nations, and immigration enforcement) do not apply to you and you have the full protection of the US Constitution. However, some naturalized citizen, foreign-born spouses are making copies of their naturalization certificates and putting a copy in their car or or on them.
National Guard spouse (and 2013 AFI Military Spouse of the Year) Alicia Hinds-Ward is a naturalized citizen, born in Barbados, who has felt the situation concerning enough to make copies of her own naturalization certificate to carry with her: “I sound different. I’m not a citizen until I prove it because [it feels like] even the Constitution was changed.” As Hinds-Ward intimates, the reality is that if you happen to have an accent, and an ICE enforcement team stops you and requests proof of status, it may be helpful to have a copy of your naturalization certificate on you (even though this is not specifically legally required).
Be aware, that there have been a few of news stories about people creating social media hoax posts claiming the existence of immigration checkpoints. If you happen to find yourself in a situation where someone is impersonating law enforcement, report what you have seen to the police. Be aware of your personal safety as you would in any situation.
If you are a Legal Permanent Resident (Green Card holder), DHS has said that entry of legal permanent residents is “deemed in the national interest” and that, while you may undergo additional screening if travelling, technically your Green Card offers the protection of the Fifth Amendment (the right to an attorney) which other categories of visa holders do not necessarily have. You should know your rights and your responsibilities.
It is important to note that in recent weeks there have been reports of Legal Permanent Residents detained by ICE when they did not have proof of status on their person. If this happens to you, whether at a border or not, do not sign an I-407 “abandonment of legal permanent residence” form without asking for and receiving legal assistance first. While you are required to carry your Green Card with you at all times, this can be difficult if it has expired (and you are awaiting the removal of conditions (I-765 petition)). In this case, carry a copy of your I-797 notice of action (not the original), your expired card, and your military ID.
Showing your military ID is often sufficient at border patrol checkpoints or when travelling domestically. Never lie to a border patrol, Immigration and Customs Enforcement, or USCIS official. When asked if you are a US citizen, don’t say yes unless you are one. If you are ever caught lying about your status you can be barred for 10 years or life. If your spouse is about to deploy for more than 30 days, be ready to submit a citizenship petition–as the waiting time for eligibility is waived if the military member is deployed–so too if you receive orders to an OCONUS base. In short, if you are eligible for citizenship, apply as soon as you can.
For those with an Immigrant Visa (including Fiancé/Fiancée visa, I-486 adjustment of status, I-131 petitions), meet all of your deadlines as you normally would. The USCIS processing times web page is worth bookmarking. Seek legal advice from a specialist immigration attorney if you are unsure about anything relating to your visa or status. If you are at all concerned that you will be denied re-entry should you leave (or that by leaving you will be determined to have abandoned your petition), be careful about leaving the country – this is definitely the case if you are waiting on your initial green card application to be processed or waiting on a petition to remove conditions.
If you are married to a service member and you are undocumented, seek legal advice immediately from a specialist immigration attorney. For those who need a low cost option, contact American Immigrant Lawyers Association for referrals to reputable attorneys.
The Department of Homeland Security (DHS) released two memos on 21 February 2017 that indicate a significant change in policy. According to a New York Times’ analysis of the memos: “Under the Obama administration, undocumented immigrants convicted of serious crimes were the priority for removal. Now, immigration agents, customs officers and border patrol agents have been directed to remove anyone convicted of any criminal offense.” The memos indicate that this policy now includes people convicted of fraud in any official matter before a governmental agency and people who “have abused any program related to receipt of public benefits.” There are concerns that this may include enrolling in a free lunch program (even though the children who have benefited may be US citizens), but the true impact remains to be seen.
The New York Times analysis also argues that the new policy also “calls for an expansion of expedited removals, allowing Border Patrol and Immigration and Customs Enforcement agent to deport more people immediately. Under the Obama administration, expedited removal was used only within 100 miles of the border for people who had been in the country no more than 14 days. Now it will include those who have been in the country for up to two years, and located anywhere in the nation.” This is irrespective of criminal records or other factors.
As you search for assistance, be very aware of notario fraud (people who are not attorneys who are claiming to offer “immigration assistance”). You can also search the Military Spouse JD Network (MSJDN) directory for a military spouse attorney near you. See also the information for each branch at the end of this article for assistance that may be available on immigration matters.
Parole in Place program appears to have been cancelled
In November, 2013, the United States Department of Homeland Security expanded a previously existing military immigration law called parole in place that directly benefited the family members of military personnel. Parole in Place promoted family unity for those who serve our country, by offering Green Cards to immigrant parents, spouses, and children of Active Duty Military, as well as immigrant relatives of Reserves, Veterans and the National Guard. Absent a criminal conviction or other serious adverse factors, parole in place was considered to be an appropriate exercise of discretion for such a foreign national.
However, this program appears to have been cancelled in memos released on February 21, 2017 (Implementing the Presidents Border Security Immigration Enforcement Improvement Policies; . Enforcement of the Immigration Laws to Serve the National Interest) Immigration Attorney and retired Lt.Col. Margaret Stock, has this to say about the new DHS memos:
“DHS Secretary Kelly has apparently cancelled the military-related parole in place and Deferred Action memos that were issued under President Obama. Accordingly, thousands of members of the US Armed Forces and their families face potential arrest and deportation from the United States. Secretary Kelly has rescinded the memos that allowed military members and their families to stay in the United States and apply for status while here in the US.”
As a consequence of these changes to PIP, some military families will have some challenging decisions to make and more of the kind of circumstances the PIP policy was introduced to alleviate in the first place. Prior to 2013, parents, spouses, and children of military service members with no legal immigration status were required to leave the United States to apply for Green Cards. This is stressful and often requires a long separation (in some cases 18 months to two years long, sometimes longer). Parole in Place allowed family members who were in the United States unlawfully to apply for a Green Card without having to leave the country. Once Parole in Place was issued, then applications for Green Cards were normally granted as a matter of fairness. The 2013 memo which has now been superseded (and effectively cancelled) states: “we as a nation have made a commitment to our veterans, to support and care for them. It is a commitment that begins at enlistment, and continues as they become veterans.”
Stock recommends that all military family members who are concerned about the impact of these DHS memos call their Senators and Congressional Representatives and make their feelings known, in particular about the cancellation of DACA and PIP as it relates to military service members and their family members.
2. What is your country of origin?
The immigration Executive Order of January 24, 2017 sought to ban the travel of any non-citizens who has one of seven countries as their country of origin: Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen. While the Ninth Circuit Federal Court ruling held that the ban should be restrained from operation, the White House has since announced that it will instead issue a new Executive Order in relation to the seven countries named in the original EO.
3. What should you be carrying with you at all times? What should you do if stopped?
Here is what you might considering carrying on you: Your military identification, a copy of the document that shows you have a visa (or a I-94 arrival/departure card with duration of status indicated), legal permanent residency (Green Card), or a copy of your naturalization document. You might also consider saving the number of your service member spouses’ first sergeant (or equivalent) cell number in your phone While they cannot intercede with ICE for you, they can at least activate communications with your service member if you need them to.
The ACLU says that if stopped by ICE, you have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a US citizen, or how you entered the country. (Separate rules apply at international borders and airports and for individuals on certain non-immigrant visas, including tourists and business travelers.)
If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent. Do not lie about your citizenship status or provide fake documents.
If the police or immigration agents come to your home:
- If the police or immigration agents come to your home, you do not have to let them in unless they have certain kinds of warrants.
- Ask the officer to slip the warrant under the door or hold it up to the window so you can inspect it. A search warrant allows police to enter the address listed on the warrant, but officers can only search the areas and for the items listed. An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person is inside. A warrant of removal/deportation (ICE warrant) does not allow officers to enter a home without consent.
- Even if officers have a warrant, you have the right to remain silent. If you choose to speak to the officers, step outside and close the door.
- If you happen to be arrested, do not resist arrest, even if you believe the arrest is unfair.
- Say you wish to remain silent and ask for a lawyer immediately. Don’t give any explanations or excuses. If you can’t pay for a lawyer, you have the right to a free one (only if in police custody, not in ICE custody). Don’t say anything, sign anything, or make any decisions without a lawyer.
- You have the right to make a local phone call. The police cannot listen if you call a lawyer.
- Prepare yourself and your family in case you are arrested. Memorize the phone numbers of your family and your lawyer. Make emergency plans if you have children or take medication.
Special considerations for non-citizens:
- Ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
- Don’t discuss your immigration status with anyone but your lawyer.
- While you are in jail, an immigration agent may visit you. Do not answer questions or sign anything before talking to a lawyer.
- Read all papers fully. If you do not understand or cannot read the papers, tell the officer you need an interpreter.
If you are taken into immigration custody (or ICE custody):
- You have the right to a lawyer, but the government does not have to provide one for you. If you do not have a lawyer, ask for a list of free or low-cost legal services.
- You have the right to contact your consulate or have an officer inform the consulate of your arrest.
- Tell the ICE agent you wish to remain silent. Do not discuss your immigration status with anyone but your lawyer.
- Do not sign anything, such as a voluntary departure or stipulated removal, without talking to a lawyer. If you sign, you may be giving up your opportunity to try to stay in the U.S.
- Remember your immigration number (“A” number) and give it to your family. It will help family members locate you.
- Keep a copy of your immigration documents with someone you trust.
General resources and information
If you don’t already have powers of attorney in place, a family care plan (or an equivalent non military resource like a family preparedness plan)–each state handles assignment of custody of children to a non family member differently, so this is something to ask JAG about, or a local family law attorney – now is the time to get these things handled. This is especially relevant if you are an undocumented military spouse and your service member is currently deployed.
If you can apply for citizenship, do so now. However, if you were going to do so on the basis of deferred action and Parole in Place, now is the time to seek out legal advice. (US service members and dependents are able to participate in naturalization ceremonies that take place on military bases._
For a military connected non-profit, Esposas Miltares Hispanas USA Armed Forces is an excellent organization, founded by Janet Sanchez, which provides support to many military connected immigrants, especially Spanish speakers.
Air Force – Air Force base legal offices do not handle immigration matters as a general rule, the exception is those JAG officers involved in supporting those recruits applying for citizenship during basic training. For those who are in the midst of making decisions about immigration as a result of marriage in the future, it is important to note that marriage in overseas commands has its own guidance. USAF AFI 36-2609 provides guidance for USAF service members seeking to marry outside of the USA.
Army – Army JAG Offices don’t generally handle or offer legal assistance on immigration for military dependents. Some ACS offices do provide information and support for military service members and dependents in relation to immigration. Some JAG offices will provide advice in relation to Parole in Place, but you should call first and ask if an office provides advice on PIP before making an appointment. It should also be noted that some JAG offices list their services on their post website and many now have Facebook pages.
Coast Guard: The Legal Assistance Office instruction lists citizenship, Green Cards, and visas as sub-types of legal assistance offered by the Coast Guard to the extent that legal assistance resources and expertise permit. What this means is that you should contact the legal assistance office closest to you and see if and how they can assist.
Marine Corps – USMC JAG Officers do not specifically assist military service members and dependents with immigration forms or advice. They do offer some information on legal service office webpages, like this one from Marine Corps Base Camp Smedley D. Butler. OCONUS offices are more likely to offer information for immigrant military spouses.
On a slightly different note, this USMC Practice Advisory sets forth actions and reporting requirements when a service member, who is either a non-citizen or a naturalized citizen, is being discharged with a dishonorable discharge (DD), bad conduct discharge (BCD), or separated under other than honorable conditions (OTH). Pretrial agreements with Marines who are non-citizens or naturalized citizens are also discussed.
National Guard – They have a legal detachment but use the installation or closest JAG is for UCMJ violations. Start with your legal detachment.
Navy – One of the best military resources is the US Navy Immigration and Naturalization page. It explains the process of applying for naturalization as a service member and the process of legally bringing a non-US-born spouse into the US as an active duty service member.
- Check List for Application for Naturalization based upon Military Service
- PSD Checklist
- Cover Letter for Facilitated Military Application for Naturalization, Form N400
- Fingerprint Scheduling NATZ letter
- Immigration and Naturalization 8 USCS 1101-1537
- NAVADMIN 113/08
- U.S. Navy Guide to Naturalization Applications Based upon Qualifying Military Service (8 U.S.C. 1439 and 1440)
For the United States Navy, the Regional Legal Service Office organizes and liaises with USCIS for those service members and dependents who wish to participate in an on-base ceremony.
These are the pages specific to the USCIS website that deal with military connected immigration and immigrants. You will also find all forms for free on the website. Do not pay anyone for a copy of any USCIS forms.
USCIS has established a toll-free military help line, 1-877-CIS-4MIL (1-877-247-4645), exclusively for members of the military and their families. USCIS customer service specialists are available to answer calls Monday through Friday from 8 AM until 4:00 PM (CST), excluding federal holidays. More information can be found here.
Note that while they can answer questions about:
- Tracking their Form N-400, Application for Naturalization
- Notifying USCIS of a new mailing address or duty station
- Checking the status of any other application or petition
- Bringing a spouse, fiancé, or adopted child to the United States
- Obtaining posthumous citizenship for a deceased member of the US Armed Forces
- Submitting an application for expedited processing
They cannot help with I-751 Removal of Conditions. You have to call the main USCIS line for any questions to do with removal of conditions petitions.
The situation is evolving. If you have questions, I cannot emphasize how important it is that you seek out a specialist immigration attorney to answer questions. Do not rely on second- or third-hand information to make decisions about your specific set of circumstances. This article does not constitute legal advice or create any form of lawyer-client relationship.
Anna Blanch Rabe, founder of Anna Blanch Rabe & Associates, is a military spouse, an attorney (currently non-practicing), and an immigrant. Her company works with Social Enterprises, socially-responsible businesses, educational institutions, and non-profit organizations to effectively execute strategic narrative initiatives to develop community capacity, attract talent, and reach new customers. Connect with Anna through Facebook, & Twitter.