Code 16 Immigration & Naturalization

Assisting people in obtaining lawful permanent resident status for family members or United States citizenship for themselves and their dependents are some of the important services of the Naval Legal Service Office.

We provide authorized personnel with advice and assistance in completing the necessary Immigration and Naturalization Service forms for their needs. Please make an appointment to discuss your particular circumstances with an attorney or immigration specialist.

Some of the typical Immigration and Naturalization questions we encounter are:

Information on this page is drawn from the U.S. Navy’s “Immigration Primer,” edited by Michael Cole, Office of the Judge Advocate, Code 16, and “A Guide to Naturalization,” published by the Immigration and Naturalization Service.

Am I a U.S. Citizen?

U.S. citizenship is conferred through the location of person’s birth, or through their parents citizenship status. If you were born in the United States, its territorial seas or Puerto Rico, Guam or the U.S. Virgin Islands, you are a U.S. citizen and your birth certificate is your proof of citizenship.

For persons born outside of those areas, your citizenship is conveyed at birth through your parents. Generally, although born abroad, you will be an U.S. citizen if:

  • Both parents are U.S. citizens at the time of your birth; and at least one of your parents lived in the United States at some point in their life.
  • One of your parents was a U.S. citizen when you born; that parent lived at least five (5) years in the United States before you were born; and at least two (2) of those years were after your citizen parent’s 14th birthday.

In both of these situations, your record of birth abroad, if registered with a U.S. consulate or embassy will be your proof of citizenship. U.S. military hospitals abroad report the births of service member’s children to the U.S. consulate or embassy serving that country. The U.S. State Department maintains copies of these birth records. Information about obtaining a copy of your overseas birth record is available here.

Those persons born abroad who do not obtain citizenship at birth may still be U.S. citizens based upon their parents’ subsequent naturalization or upon their adoption by a U.S. citizen. Generally, if not a citizen at birth, you will automatically become a citizen if natural parent(s):

  • Both parents become naturalized; AND
    • You were under 18 when they naturalized; you were not married; and you became a lawful permanent resident before your18th birthday.
  • One parent becomes naturalized; AND
    • That parent was the only surviving parent OR that parent had legal custody AND
    • You were under 18 when they naturalized; you were not married; and you became a lawful permanent resident before your18th birthday.
  • Effective February 27, 2001One parent becomes naturalized; AND You were under 18 on February 27, 2001 AND at the time the first of your parents naturalized; you were not married; and you became a lawful permanent resident before your 18th birthday.

In the situations above you may obtain a passport as evidence of citizenship. You may also file an Application for Certificate of Citizenship (N-600) with the USCIS to obtain proof of citizenship.

Adopted children also become U.S. citizens under the Immigration and Naturalization Act. In order to obtain U.S. citizen status from your adopted parents the following requirements must be met:

  • Both adopted parents are citizens or become citizens AND
    • You were adopted before the age of 16; are in the United States as a lawful permanent resident; are in the custody of your adopted parents; and, if applicable, under the age of 18 when your parent(s) become naturalized.
  • Effective February 27, 2001One adopted parent is a U.S. Citizen AND You were adopted before the age of 16; are in the United States as a lawful permanent resident; are in the custody of the citizen adopted parent; and if that parent is naturalized, you were under the age of 18 on February 27, 2001 and at the time the first of your parents became naturalized.

In the situations above, as an adopted child you may obtain a passport as evidence of citizenship. You may also file an N-600K Application for Citizenship and Issuance of Certificate under Section 322 with the USCIS to obtain proof of citizenship.

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Can I become a U.S. citizen?

There are a number of different categories under which a Lawful Permanent Resident may qualify to become a U.S. Citizen. You may be eligible for citizenship if:

  • Have been a permanent resident (green card holder) for at least 3 years ;
  • Have been living in marital union with the same U.S. citizen spouse during such time;
  • The U.S. citizen spouse must have been a U.S. citizen for the same 3 years; or
  • You have qualifying service in the U.S. Armed Forces
    • “Qualifying Service” consists of 1 year service on active duty while in a Lawful Permanent Resident status OR any length of service on active duty during time of war regardless of resident status.

Additional requirements include that a person must be of good moral character; able to read, write and speak the English language; AND demonstrate a knowledge and understanding of the history and form of government of the United States.

To become a citizen, you must file an Application for Naturalization (N-400) with the USCIS at the USCIS Service Center responsible for your state. In addition to filing the N-400, if you have any military service you will have to complete formN-426. All forms including pictures and fingerprints need to be mailed by the command representative to the following address:

U.S. Department of Homeland Security
Citizenship and Immigration Services
Nebraska Service Office
P.O. Box 87426
Lincoln, NE 68501-7426

Once the interview is completed satisfactorily and all other open issues are addressed, the USCIS will provide you a date and time for you to take the Oath of Allegiance and become a U.S. citizen.

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How long will it take for me to become a citizen once I file?

The time from filing your N-400 to becoming a citizen depends upon the part of the country in which you reside. The application turnaround time currently runs between one (1) and two (2) years for naturalization applications submitted directly to the USCIS. Active Duty service members with “Qualifying Military Service” filing with the assistance of their command can expect a four (4) to eight (8) month turnaround from filing to naturalization.

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Will the military help me become a citizen?

Under an agreement between the USCIS and the Department of Defense, the military services will take responsibility for the initial processing of naturalization applications submitted under the “qualifying military service” naturalization category for their service members. Service members still need to prepare an Application for Naturalization (N-400). Additionally, you will need to prepare an USCIS form N-426 – Request for Certification of Military or Naval Service that is available through your command or the Legal Service Office.

Navy commands will follow the guidance in NAVADMIN 113/08 and the procedures in the Navy Immigration Guide for processing a service member’s application for naturalization. Briefly, your command will review the application; obtain a certification of military / naval service; schedule an appointment for finger printing; and forward the entire package to a specified USCIS processing facility for military applications. Unlike the normal application, the processing facility for military applications does not depend on where the service member is stationed.

It is expected that the time from filing the application until citizenship is granted under the military application processing procedures will be between four (4) to eight (8) months.

These procedures are only available to Active Duty Service Members and members of the Selected Reserve of the Ready Reserve.

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What relatives can I bring to the United States?

Which relatives you may bring into the United States as Lawful Permanent Residents and how soon they are admitted depends upon your citizenship status and their degree of relationship to you. To be admitted as a Lawful Permanent Resident (LPR), your relative must either qualify as a “immediate relative” or as a “family-sponsored preference immigrant.” Individuals eligible for “immediate relative” status will not be required to wait for a quota to be permitted to immigrate to the United States.

The only immediate relatives recognized by United States immigration law are:

  1. Unmarried children under age 21 of United States citizens;
  2. Spouses of United States citizens; and
  3. Parents of United States citizens age 21 and over.

Any delay in immediate relatives being granted an immigrant visa can be attributed to a backlog in the processing of immigrant visas at the U.S. Embassy in their country. Generally, countries in which large numbers of people are attempting to immigrate to the United States will have longer processing time than those with few people interested in immigrating. Waits as long as 8 to 9 months are possible.

Individuals not in the “immediate relative” classification may still be petitioned into the United States if they fit into one of the 4 classes of “family-sponsored preference immigrants” but these individuals must wait for a quota.

The four classes of family-sponsored preference immigrants are:

  1. First Preference: Unmarried children age 21 and over of United States citizens;
  2. Second Preference A and B:
    1. Spouses and unmarried children under age 21 of LPRs
    2. Unmarried children age 21 and over of LPRs;
  3. Third Preference: Married children age 21 and over of United States citizens; and
  4. Fourth Preference: Brothers and sisters of adult citizens (adult = 21 and over).

Only a certain number of family-sponsored preference immigrants are permitted to immigrate to the United States each year. Because of this quota system, their wait before entry includes the time required to obtain a quota as well as that attributed to processing at the embassy. This wait can be 4 years or more and a listing of the delay for each category can be found in the Visa Bulletin published by the U.S. Department of State.

The immediate relative and preference categories are the only family relationships recognized by United States immigration law as capable of conferring Lawful Permanent Resident status. No other relative categories (grandparents, grandchildren, aunts, uncles, etc.) may allow for sponsorship to immigrate and achieve Lawful Permanent Resident status.

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My family is in the family-sponsored preference category – is there anything the Legal Service Office or military can do to get them here sooner?

Unfortunately, there are no provisions under the Immigration and Naturalization Act that allow service members to bypass the quota system and gain expedited entry for their relatives.

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How do I bring my relatives into the United States?

To sponsor an alien relative into the United States, you will need to file a Petition for an Alien Relative (USCIS form I-130) with the Chicago Lockbox responsible for the state where you reside.

If you were admitted to the United States as a Lawful Permanent Resident under the diversity visa program and you had a spouse and/or children at the time, special procedures apply for their entry. Please make an appointment to speak with an attorney.

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I want to marry a foreign national and have them become a Lawful Permanent Resident – what do I need to do?

There are three different options that are available for making a spouse a Lawful Permanent Resident, these depend upon the location of the alien and your citizenship status. They are:

  1. Petition the spouse into the United States based upon a marriage overseas;
  2. Adjustment of status based upon marriage or spouse lawfully present in the United States; or
  3. Filing a petition by a U.S. citizen to have their fiancé come to the United States for marriage.

Procedures differ somewhat depending on whether such marriages take place overseas or in the United States. If the couple is stationed overseas, obtaining LPR status requires consular processing of the alien spouse’s application for an immigrant visa. If the couple resides in the United States, the alien spouse files for adjustment of status at a local USCIS District Office.

Marriage to a United States citizen leads to “immediate relative” status, which eliminates any waiting line to apply for Lawful Permanent Resident status. There are no numerical limitations placed on the immigration of immediate relatives of U.S. citizens to this country. The waiting period for spouses of a Lawful Permanent Resident, who must rely on the family-sponsored preferences, for immigration is significantly longer.

  1. Overseas Marriages to Foreign Nationals – Applying for an Immigrant Visa

    Bring the spouse into the U.S. based upon an overseas marriage to foreign national is a five-step process, consisting of:

    1. Service approval;
    2. Petition for alien relative (I-130);
    3. Overseas processing of the immigrant visa;
    4. Entry into the United States; and finally,
    5. Removal of “Conditional Status,” if necessary.

    Service Approval

    An important first step in the marriage of a service member to a foreign national outside the United States is to obtain Military Service approval. The marriage of Naval personnel to a foreign national outside the United States is governed by MILPERSMAN Section 5352-030. The Army and Air Force have similar regulations. These regulations require that all members planning to marry a foreign national will submit an application for permission to marry to their area commander or a designated representative. This is required regardless of whether the service member is stationed overseas or only traveling there to get married. As part of the application process, the alien spouse will receive a medical screening and a background investigation.

    If you are planning on marrying a foreign national outside the U.S. please make an appointment to see a legal assistance attorney.

    Petition for Alien Relative (I-130)

    The first step after your marriage is to file a “Petition for Alien Relative, Form I-130,” to establish the appropriate relative qualification on behalf of the alien spouse. On this form, the United States citizen or Lawful Permanent Resident is the petitioner, and the alien spouse is the beneficiary. This form should be filed at the nearest United States Consulate or at the Chicago Lockbox having jurisdiction over where petitioner will be residing. The documents to be filed with the I-130 include the marriage certificate (with certified translation, if necessary), and the current filing fee. If USCIS approves the Form I-130, it is then forwarded to the National Visa Center.

    Processing the Immigrant Visa

    Once the Form I-130 is approved, the National Visa Center will notify the applicant who will complete the Instructions for Immigrant Visa Applicants. When the case is complete, an appointment package is sent to the agent or the applicant. The appointment package gives the applicant an interview date and tells you the specific requirements of the visa. It includes instructions on where to go to have the required medical examination. During the interview process, an ink-free, digital fingerprint scan will be taken. Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a Consular Officer. The sponsor will also need to execute an Affidavit of Support (Form I-864) for the beneficiary. When all the information is gathered, the Consulate schedules an interview with the couple. This is normally brief and addresses only the marital relationship and any grounds for exclusion such as conviction of a serious crime. No judicial review is available for consular denials of immigrant visas. If the beneficiary (alien spouse) also wants to have his children admitted, a separate Petition for Alien Relative, Form I-130 must be processed for each child.

    Obtaining LPR Status in the United States

    If the visa is approved by the Consulate, it is usually valid for only 6 months. Failure to travel to a U.S. port of entry for admission leads to expiration of the Immigrant Visa. The alien spouse must travel to a United States entry point to receive Lawful Permanent Resident status from the USCIS. If the couple has been married for at least 24 months, then the alien spouse receives full Lawful Permanent Resident status. If not, then the spouse receives permanent resident status on a conditional basis for a two-year period. He or she is a full permanent resident in all respects—eligibility for employment, ability to travel freely in and out of the United States, accumulation of time toward compliance with residence and physical presence requirements for naturalization as a U.S. citizen—but that residence is subject to termination within two years after it is granted if the marriage is terminated by divorce or annulment during that period, or the marriage is determined to be a sham. This conditional status must be removed by petition to the USCIS Form I-751.

    In general, the following is required.

    • Passport(s) valid for six months beyond the intended date of entry into the United States
    • Birth certificate
    • Police certificate from all places lived since age 16
    • Medical examination
    • Evidence of financial support – a completed Affidavit of Support (I-864, I-864 EZ or
    • I-864W,as appropriate) from petitioner / sponsor is required.
    • Application for Immigrant Visa and Alien Registration, Form DS-230, both Part I and Part II
    • Two immigrant visa photos
    • Proof of the marriage and the husband / wife relationship
    • Payment of immigrant processing fees, as explained below

    Documents in foreign languages should be translated. See Applicant Documents for more specific information about requirements. The consular officer may ask for more information.

    Take clear, legible photocopies of civil documents, such as birth and marriage certificates, to the immigrant visa interview. Original documents can then be returned to you.

    The National Visa Center sends appointment packages to the applicant (or agent) when the U.S. citizen or lawful permanent resident sponsor filed the petition in the United States. When the sponsor files the petition overseas, the U.S. embassy or consulate abroad sends appointment packages to the applicant.

    Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination which must be performed by one of a panel of doctors authorized to complete the medical examination and x-ray of U.S. visa applicants.  Applicants are provided instructions by NVC.

    United States immigration law requires immigrant visa applicants to obtain certain vaccinations prior to the issuance of an immigrant visa. Panel physicians who conduct medical examinations of immigrant visa applicants are required to verify that immigrant visa applicants have met the vaccination requirements. See IV Vaccination Requirements for the list of required vaccinations and additional information.

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  2. Adjustment of Status for Marriages to Foreign Nationals in the United States

    If the petitioner provides an e-mail address and a cell phone number, they will be notified on both types of electronic notification. USCIS will notify them within 24 hours of accepting the petition for processing. The message will provide a receipt number and information on how to make a status inquiry. This notification will NOT constitute official notice of acceptance, however. ONLY the I-797C receipt constitutes official notice of receipt.

    During the duration of an application for adjustment, the applicant is generally authorized to remain in the United States, and is ordinarily not considered "illegally" or "unlawfully" within this country.

    The following forms are required :

    1. Petition for alien relative (I-130)
    2. I-131 (Travel Authorization) *
    3. I-765 (Employment Authorization)
    4. I-693 (Report of Medical Examination)
    5. I-485 (Application for permanent residence)
    6. I-864 (Affidavit of Support) **
    7. G-325A (Biographical Data) ***
    8. G-1145 (E-Notification of Application/Petition Acceptance)

    * - There is no cost if filed with the I-130 package.  If filed separate the filing fee for each form will have to be paid.
    ** - There is no cost to file this form.  However, this Form legally obligates the U.S. citizen to support the sponsored alien relative until the alien has worked 40 qualifying quarters under the Social Security Act, becomes a citizen of the United States, dies, or permanently leaves the U.S.  It will also end if the sponsor dies, divorce, desertion or abandonment do not count.  If the sponsored individual goes on welfare before one of the above 4 events take place the agency granting the benefit, the individual, the city, county, state or fed CAN file suit in court to reclaim the money.
    *** - There is no cost to file this form.  You need to submit 2 copies one for each individual.

    Petition for Alien Relative (I-130)

    The Petition for Alien Relative, Form I-130 process is similar to that for overseas consular processing of the immigration visa. It should be filed at the USCIS District Office where the couple resides. The document to be filed with the I-130 include the marriage certificate (with certified translation, if necessary) and pay the current filing fee. USCIS approval of the I-130 filed by the United States citizen spouse qualifies the alien spouse to apply for permanent residence. The I-130 Petition is typically submitted concurrently with the Application for Permanent Residence (Form I-485) when the couple is already in the United States.

    Application for Permanent Residence (Form I-485)

    Instead of applying for an immigrant visa to enter the United States for admission as a Lawful Permanent Resident, the alien spouse files an Application for Permanent Residence (Form I-485) to the following address:

    U.S. Citizenship and Immigration Services
    PO Box 805887
    Chicago, IL 60680-4120

    The Form I-485 addresses many of the same issues and requests much of the same documentation as the OF-230 discussed above, such as evidence of employment of the spouses, criminal history if any, the mental and physical status of the applicant (Form I-693) and the status of the marital relationship. As with the overseas processing, the sponsor will also need to execute an Affidavit of Support (Form I-864) for the beneficiary. An USCIS examiner will interview the couple on all of these issues.

    Once the applicant has filed the adjustment application, the applicant must stay in the United States until the application is finally decided. If the applicant leaves the U.S. (except under a grant of advance parole), the application will be considered withdrawn. This is true even if accompanying a military spouse on overseas orders. However, if the military spouse is a citizen, it may be possible to expedite the naturalization of the nonmilitary alien spouse. Please make an appointment to see an attorney. A grant of advance parole by USCIS to depart the U.S. gives permission to return to the US. to resume applying for permanent residence. However, if an alien is subject to a ground of inadmissibility such as a criminal conviction or being unlawfully present in the United States for more than 180 days, he should be advised that advance parole may not guarantee a return to the U.S. to resume applying for permanent residence. Again, if the couple has been married less than two years at the time the Form I-485 is approved, the alien spouse is granted LPR status on a conditional basis, and they must petition for removal of the conditions.

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  3. Petition for Alien Fiancé(e)

    Service members who are U.S. citizens stationed in the United States may also file what is known as a Petition for Alien Fiancee (Form I-129F) to bring an alien fiancé(e) to the United States. This form has the same purpose as the I-130 – to bring someone into the United States. The difference is that with the I-129F, the couple is not yet related by marriage. To qualify, the couple must have met in person within two years of filing the Form I-129F and the couple must marry within 90 days of the fiancé(e) entering the United States. The two exceptions to meeting within the prior two years are: (1) if meeting would violate the strict and long-established customs of the foreign culture or social practice of the fiancé(e); or (2) the requirement to meet in person would result in extreme hardship. During the ninety-day period leading up to his marriage, the alien is authorized to engage in employment.

    Following the couple’s marriage, the procedures are the same as discussed above for an adjustment in status for marriages in the United States. Within 90 days after marrying, the alien spouse should apply for adjustment of status to LPR status by filing the Application for Permanent Residence (Form I-485) to obtain conditional LPR status. Conditional Lawful Permanent Resident status should be removed by applying to remove the conditional status within two years by filing Form I-751.

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What is an “Affidavit of Support,” and why do I need it?

The Form I-864 Affidavit of Support is a required part of both the overseas consular processing for an immigrant visa (Form OF-230) and the adjustment of status (Form I-485) processing for bringing alien spouses to the United States to become Lawful Permanent Residents. To determine the minimum income requirement needed to complete Form I-864 go to I-864P. The Affidavit of Support is a tool that Congress has mandated to ensure that aliens do not become “public charges.” Anyone immigrating through a family visa petition must have an affidavit of support (Form I-864) properly submitted, or the person will be inadmissible as a public charge. This Form I-864 legally obligates the United States citizen to support the sponsored alien relative until the alien relative becomes a citizen of the United States or until the alien has worked 40 qualifying quarters under the Social Security Act, dies, or permanently leaves the U.S. It will also end if the sponsor dies.

The sponsor’s obligation does not end because of divorce, because the immigrant disappears and doesn’t communicate with the sponsor, or for other personal reasons. It does end if the sponsor dies, although the sponsor’s estate may have to pay obligations that arose before the sponsor died. The level of support required is 125% of the federal poverty guidelines (100% for military families).

If the alien relative is forced to go on public assistance, the agency providing the assistance may compel reimbursement from the United States citizen sponsor of any money paid out in public assistance in a federal court action as well as seek enforcement of future support. In addition, the terms of the law creating the Affidavit of Support obligations appear to provide for entitlement in the alien’s own right to compel support in a court of law. Only naturalization or 40 qualifying quarters of work by the alien terminates the support obligation.

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My spouse was admitted in a “Conditional Status,” how do I get that changed to unconditional?

If the alien spouse was given conditional resident status, both spouses must file the Petition to Remove the Conditional Basis on Residence (Form I-751) within 90 days preceding the second anniversary of the alien spouse’s receiving conditional permanent resident status. The one exception relates to conditional residents who are outside the U.S. during this 90 day period pursuant to U.S. government orders. Such aliens may file their petitions within 90 days after they return to the United States.

The USCIS regional service center reviews the Form I-751 filed by the alien and the alien’s spouse to determine whether to waive the interview required by the Act. If satisfied that the marriage was not for the purpose of evading the immigration laws, the regional service center director may waive the interview and approve the petition. If not so satisfied, then the regional service center director forwards the petition to the district director having jurisdiction over the place of the alien’s residence so that an interview of both the alien and the alien’s spouse may be conducted. The Form I-751 process will then conclude with an interview with an USCIS examiner who is seeking to verify the validity of the marriage and ensure that the marriage was not entered into solely for an immigration purpose. As long as the marriage is valid, USCIS will remove the conditional status and the alien will become an LPR without conditions.

A failure to jointly file the Form I-751 and appear together for the Form I-751 interview before an USCIS examiner may result in an automatic termination of the spouse’s LPR status, unless the alien spouse is able to establish that he should be excused from the requirement to jointly file the Form I-751. The alien spouse then begins to accrue unlawful presence as of the date the conditional status as a Lawful Permanent Resident expires and may be placed by USCIS in proceedings before an immigration judge to remove him from the United States.

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How do I get a U.S. passport?

If you will be traveling outside the United States, whether on military orders or on holiday, you will probably need a U.S. passport. The passport identifies you as a United States citizen in foreign nations and allows you to freely re-enter the country upon your return. U.S. Passports are issued by a component of the United States Department of State. The Consular Affairs Bureau has a Web site providing answers to frequently asked questions about getting a passport. In general, however, if you do not already have a passport, you will need to apply in person by submitting the Form DS-11. There are several locations around the country where you can submit your passport application, including with the clerk of many courts and even some post offices. There is also a passport office search engine that will determine if there is a facility that accepts passports at your location. Those individuals only needing to update their passport may do so by mail by submitting a Form DS-82 to the Passport Agency.

In some cases, if you are being assigned overseas, you or your dependents will be issued an official no-fee passport for use. Special requirements apply to use of this document and the State Department has answers to the most frequently asked questions about Military No-Fee Passports.

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