On July 4, 2002, President Bush signed an executive order designed to speed citizenship applications of non-citizens who served in the military as of Sept. 11, 2001. The very same day, I witnessed an atmosphere of excitement in one of local restaurant were the few friends of mine worked at that time.

“Does it mean that anyone can get citizenship by joining the military?” the question was asked.

At that moment, and judging by the language used in this order, anyone, even people without Green Cards seemed to be eligible to benefit from it. For those, who wanted to make America their permanent home, such order gave a chance to be one step closer to this goal. People with an immigration status of a student or temporarily worker and without it, (illegal aliens) were both equally thrilled by a prospect of getting citizenship avoiding never-ending wait lists and numerous pre-requisites for a permanent residency. Joining the military seemed as the best and most important quick alternative to the traditional, long and sometimes bumpy path to a legal status. Military service has long offered a short cut to American citizenship, and the minute George Bush signed his executive order, a so much coveted American passport was within a reach for many.

And it was not just a citizenship but also a feeling of patriotism, desperation, adventure that made many immigrants to look at the military as the best available option.I really like what USC professor Dowell Myers, an immigrant studies expert had to say about non-citizen soldiers.

“The military has long been a route to upward mobility, he said, as well as “great bonding force” for America’s newcomers. The military takes all these people, throws them in ranks and treats them like interchangeable parts. It instills “common goals that override … differences.”

With all said and done, the next natural move was to call a local recruiter and find out how to join. The phone call was cut short by a phrase: “You need to be an alien resident or a citizen in order to be eligible to join”.

“But what about President’s executive order?”

Well, it only applied on legal residents. Such news brought a total disappointment and crushed dreams in a matter of a second. “What if” scenarios were proposed yet the few more phone calls and appointments with different recruiters had not made any positive impact. Want to join? Bring a green card!

And that is what Jose Escalante did. An illegal immigrant from Seattle, who was brought to the US by his parents when he was a little kid, bought a fake green card and joined the USA Army. Escalante joined the 3rd Infantry Division, which had led the charge on Baghdad, and spent the broiling Iraqi summer repairing vehicles and guarding prisoners of war. In Iraq his legal status was discovered by military officials and upon return to US, Escalante was facing dishonorable discharge and deportation. Yet, it did not happen.

Instead, the Army decided to assist Pfc. Escalante in getting the US citizenship. Based on what? On the very same executive order designed to speed citizenship applications of non-citizens who served in the military as of Sept. 11, 2001. Moreover, and as it appears, Bush’s executive order, applies to legal and illegal immigrants alike. Escalante applied for citizenship based on it and his attorney, Lt. Heather Herbert at Ft. Stewart, said his citizenship may be approved within a few months. And, the few months later, Escalante’s application was indeed approved.

How did it happen?

To start with, Glen Prior, the Escalantes’ civil lawyer, said that language in President Bush’s order includes illegal immigrants in the category of soldiers eligible for citizenship after serving in Iraq because it mentions both “aliens and non-citizen nationals. Lt. Heather, a military lawyer, echoes his words by saying that “There are different readings and different interpretations of it. But the fact is that he served honorably in active duty status, and we’d like to keep him here. Chris Bentley, spokesman for the Bureau of Citizenship and Immigration Services, says that in general,

immigration law allows expedited citizenship for illegal-immigrant soldiers who have served in combat - as long as they have demonstrated and continue to demonstrate “good moral character.”

Burlas also mentions that future soldiers who turn out to be illegal immigrants after serving in combat will be handled on a “case-by-case basis.” To prove his words, here is an info page derived from an official USCIS web site. It shows basic requirements for a citizenship that clearly indicates eligibility of illegal aliens based on a military service during the times of military conflicts.

What gives illegal aliens a chance to get a citizenship is the US code, Title 8, chapter 12, section 1440. Here is what it says:

§ 1440. Naturalization through active-duty service in the Armed Forces during World War I, World War II, Korean hostilities, Vietnam hostilities, or other periods of military hostilities
Release date: 2004-02-11
(a) Requirements Any person who, while an alien or a noncitizen national of the United States, has served honorably in an active-duty status in the military, air, or naval forces of the United States during either World War I or during a period beginning September 1, 1939, and ending December 31, 1946, or during a period beginning June 25, 1950, and ending July 1, 1955, or during a period beginning February 28, 1961, and ending on a date designated by the President by Executive order as of the date of termination of the Vietnam hostilities, or thereafter during any other period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who, if separated from such service, was separated under honorable conditions, may be naturalized as provided in this section if (1) at the time of enlistment, reenlistment, extension of enlistment, or induction such person shall have been in the United States, the Canal Zone, American Samoa, or Swains Island, or on board a public vessel owned or operated by the United States for noncommercial service, whether or not he has been lawfully admitted to the United States for permanent residence, or (2) at any time subsequent to enlistment or induction such person shall have been lawfully admitted to the United States for permanent residence. The executive department under which such person served shall determine whether persons have served honorably in an active-duty status, and whether separation from such service was under honorable conditions: Provided, however, That no person who is or has been separated from such service on account of alienage, or who was a conscientious objector who performed no military, air, or naval duty whatever or refused to wear the uniform, shall be regarded as having served honorably or having been separated under honorable conditions for the purposes of this section. No period of service in the Armed Forces shall be made the basis of an application for naturalization under this section if the applicant has previously been naturalized on the basis of the same period of service. (b) Exceptions A person filing an application under subsection (a) of this section shall comply in all other respects with the requirements of this subchapter, except that— (1) he may be naturalized regardless of age, and notwithstanding the provisions of section 1429 of this title as they relate to deportability and the provisions of section 1442 of this title; (2) no period of residence or specified period of physical presence within the United States or any State or district of the Service in the United States shall be required; and (3) service in the military, air or naval forces of the United States shall be proved by a duly authenticated certification from the executive department under which the applicant served or is serving, which shall state whether the applicant served honorably in an active-duty status during either World War I or during a period beginning September 1, 1939, and ending December 31, 1946, or during a period beginning June 25, 1950, and ending July 1, 1955, or during a period beginning February 28, 1961, and ending on a date designated by the President by Executive order as the date of termination of the Vietnam hostilities, or thereafter during any other period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and was separated from such service under honorable conditions. (c) Revocation Citizenship granted pursuant to this section may be revoked in accordance with section 1451 of this title if at any time subsequent to naturalization the person is separated from the military, air, or naval forces under other than honorable conditions, and such ground for revocation shall be in addition to any other provided by law. The fact that the naturalized person was separated from the service under other than honorable conditions shall be proved by a duly authenticated certification from the executive department under which the person was serving at the time of separation.

These are pretty much clear words and definitions that support Escalante’s case and his rights for a citizenship. But doesn’t this law work for most people?
It is hard to answer this question. A military guide from www.about.com site wrote to me that such law is a carry-over from the times of Vietnam. Military recruiters shrug shoulders and say that they did not receive any instructions or directives from command offices, which enables them to enlist foreigners. And a directive from DoD (Department of Defense) while acknowledging a possibility of such enlistments does not say much more about this issue (Table 2). Here is what one of DoD’s directives says:

E2.2.2. Citizenship.
E2.2.2.1. To be eligible for enlistment in the Regular Army or the Air Force in time of peace or appointed as a warrant officer, an individual must be an American citizen, or lawfully admitted to the United States for permanent residence in accordance with Section 3253 and 8253 of reference (c). There is no equivalent statute limiting enlistment in the Regular Navy and the Marine Corps, but they usually apply the same citizenship requirements as those required for the Army and the Air Force.

Now, let’s look at the DD Form 1966, Record of Military Processing—Armed Forces of The United States, or in other words, an application for enlistment. Table 3

Upon a close examination and reading of instruction how to fill it up, we can stress the following moments:

1. Social Security Number—Normally, enlistment without a Social Security Number is not authorized.
2. Citizenship – You will have to provide a document that verifies your citizenship status. Here, most recruiters will require an “A” number (alien registration number) that immigration service issues to the immigrants who apply for a permanent residency. (In most cases, yet the very same number might be issued for different types of immigrants)

After careful reviewing of the documents and regulations, we should conclude that if a person does not have a legal status in the US and thus does not possess proper documentation from the immigration service his chance to enlist in the US Armed Forces is highly doubtful. Since such person does not have a social security card, alien registration number and other papers that prove his status in the country, therefore a potential form 1966 cannot be completed and therefore accepted by a recruiter.

While there is a legal basis for a foreigner to get the US citizenship based on a military service performed during the times of military conflicts, such laws are not actively used in the USA. We might call them “carry-over” yet it is very strange that nobody bothered to clarify issues associated with the Bush’s executive order and US.C. Title 8, paragraph 1440. There are precedents when foreigners do get their citizenship based on these laws, however, as the USCIS said: “They will handle such situations on a “case-to-case” basis.

How to get into the military in order to benefit from the executive order remains a puzzle. Since the military will not accept you without proper documents, you won’t be able to enlist and therefore benefit from the Executive order signed by G.W.Bush in 2002. Yet, all factors indicate that a foreigner who serves during the time of a conflict is eligible for some certain considerations. Let me remind that as of this moment, our President designated “The War on Terror” as such conflict thus activating the law United States Code, Title 8, paragraph 1440. All this information, facts and regulation add to a general confusion over this situation. It is “Yes-you-can-but-at-the-same-time-you-can’t” legal situation.

This article is for information purposes only. All information is derived from newspapers and web-sites.

This entry was posted on Friday, November 4th, 2005 at 12:11 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.