Chapter 9 - Spouses, Children, and Surviving Family Benefits
A. General Provisions for Spouses, Children, and Parents of Military Members
1. Benefits for Family Members
Spouses and children of U.S. citizen service members may be eligible for naturalization under special provisions in the INA. Certain spouses may be eligible for expedited naturalization in the United States and may not be required to establish any prior period of residence or specified period of physical presence within the United States, as generally required for naturalization.
The surviving spouse, child, or parent of a U.S. citizen who dies during a period of honorable service in an active duty status in the U.S. armed forces may be eligible for naturalization. Surviving family members seeking immigration benefits are given special consideration in the processing of their applications for permanent residence or for classification as an immediate relative.
On January 28, 2008, legislation was enacted to permit a spouse or child to count any period of time that he or she is residing abroad with the service member as authorized by official orders as residence and physical presence in the United States, under certain conditions.[1] The same legislation also prescribes that such a spouse or child may be eligible for overseas proceedings relating to naturalization, as previously only permitted for an eligible member of the U.S. armed forces.
Specifically, one provision limits the circumstances under which the lawful permanent resident (LPR) spouse or child is considered to be seeking admission to the United States.[2] Another provision allows the LPR spouse to count any qualifying time abroad as continuous residence and physical presence in the United States and permits the spouse to naturalize overseas.[3] Another provision allows the U.S. citizen parent of a child filing for naturalization to count time abroad as physical presence and permits the child to naturalize overseas.[4]
2. Documenting “Official Orders”
In order to count any qualifying time abroad as continuous residence and physical presence in the United States, a spouse or child of a member of the U.S. armed forces must have official military orders authorizing him or her to accompany his or her service member spouse or parent abroad, and must accompany or live with that service member as provided in those orders.[5]
USCIS will only accept the following documents issued by the U.S. armed forces as “official orders:”
- Copy of Permanent Change of Station (PCS) orders issued to a service member for permanent tour of duty overseas that specifically name the spouse or child applying for naturalization; or
- If the submitted PCS orders do not specifically name the applicant beyond reference to “spouse,” “child,” or “dependent,” then the applicant must submit:
- PCS orders (copy);
- Form DD-1278 (Certificate of Overseas Assignment to Support Application to File Petition for Naturalization); and
- Service member’s Form DD1172 (Application for Uniformed Services Identification Card DEERS Enrollment) naming dependents.
B. Spouses of Military Members
The table below serves as a quick reference guide to certain residence, physical presence, and overseas naturalization provisions for spouses of service members. The paragraphs that follow the table provide further guidance on each provision.[6]
| INA Section | Residence | Physical Presence | Treatment of Time Residing Abroad | Overseas Naturalization |
|---|---|---|---|---|
| 316(a) | LPR for 5 years | 30 months | Time residing with U.S. citizen spouse serving abroad may be treated as residence and physical presence in the United States (INA 319(e)) | May complete entire naturalization process from abroad |
| 319(a) | LPR for 3 years | 18 months | ||
| 319(b) | Must be LPR but no specified period of residence or physical presence is required | Must complete interview and oath in United States | ||
1. Spouses of Service Members (INA 316(a) and INA 319(a))
Spouses of service members may qualify for naturalization through the general naturalization provision or on the basis of their marriage to a U.S. citizen.[7] The general provision applies to spouses who have been LPRs for 5 years immediately preceding the date of filing the naturalization application.[8] Naturalization on the basis of marriage applies to spouses of U.S. citizens who have been LPRs for 3 years immediately preceding the date of filing the naturalization application and who have lived in marital union with their citizen spouses for those 3 years.[9]
2. Spouses of Military Members who are or will be Stationed or Deployed Abroad (INA 319(b))
The law permits expedited naturalization in the United States for eligible spouses of U.S. citizen service members who are or will be stationed or deployed abroad.[10] This provision does not require any prior period of residence or specified period of physical presence within the United States for any LPR spouse of a U.S. citizen who is an employee of the United States Government (including a member of the U.S. armed forces) or recognized nonprofit organization who is stationed abroad in such employment for at least one year.[11]
In general, the applicant is required to be in the United States for his or her naturalization examination or interview and for taking the Oath of Allegiance for naturalization.[12]
Spouses of service members already accompanying and residing abroad with their military spouse may also qualify for naturalization through the general provision[13] or on the basis of their marriage to a U.S. citizen for 3 years.[14] Such spouses may be eligible for any naturalization proceeding abroad, to include interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.[15]
3. Continuous Residence and Physical Presence while Residing Abroad (INA 319(e))
Certain eligible spouses of service members may count qualifying residence abroad as residence and physical presence in the United States for purposes of naturalization.[16] This provision does not provide an independent basis for naturalization. The benefits of this provision only apply to an LPR who is eligible for naturalization through the general provision[17] or on the basis of his or her marriage to a U.S. citizen for 3 years.[18]
The spouse must meet all of the following conditions during such time abroad:
- The LPR is the spouse of a member of the U.S. armed forces;
- The LPR is authorized to accompany and reside abroad with the service member pursuant to the service member’s official orders;[19] and
- The LPR is accompanying and residing abroad with the service member in marital union.[20]
The spouse is not required to be abroad at the time the officer makes such determination. For example, an applicant who is currently residing in the United States, but had previously resided abroad during the statutory residency or physical presence period, may count the time abroad as continuous residence and physical presence, if he or she meets the eligibility criteria.
The spouse of a service member who has been an LPR for 5 years and is applying for naturalization through the general provision does not need to establish that the service member is a U.S. citizen.[21] An applicant who is no longer married to a service member at the time of filing may still meet the residence and physical presence requirements if the LPR was married to the service member and met all the conditions above during the period of time in question.
The spouse of a service member who has been an LPR for 3 years and who is applying on the basis of his or her marriage for 3 years must establish that the service member has been a U.S. citizen for the required period.[22]
4. Overseas Naturalization for Spouses of Service Members
In addition to allowing certain time abroad to count towards the residence and physical presence requirements, INA 319(e) permits eligible spouses of service members to naturalize abroad without traveling to the United States for any part of the naturalization process.
In general, to be eligible to naturalize abroad, the LPR spouse of a service member must:
- Be authorized to accompany the service member abroad per the service member's official orders;
- Be residing abroad with the service member in marital union; and
- Meet the requirements of either INA 316(a) or INA 319(a) at the time of filing the naturalization application, except for the residence and physical presence requirements.
Prior to the enactment of the overseas provisions in 2008, with some exceptions, a service member’s LPR spouse residing abroad with the service member had to apply for naturalization through expedited naturalization provisions.[23] This applied to a spouse who was eligible through the general provision[24] or through 3 years of marriage to a U.S. citizen[25] but whose time abroad rendered him or her unable to meet the respective continuous residence or physical presence requirements.
An LPR filing as the spouse of a service member residing abroad[26] was exempt from the continuous residence and physical presence requirements, but he or she was still required to return to the United States for his or her interview, naturalization, and any other related procedure.[27] The overseas naturalization provisions allows such an LPR spouse to apply for naturalization from abroad and complete any procedure relating to his or her application for naturalization while residing abroad.[28]
5. Application and Filing
Form N-400, Application for Naturalization
Eligible spouses of members of the U.S. armed forces who live abroad and want to naturalize abroad should submit an Application for Naturalization (Form N-400) in accordance with the instructions on the form and with appropriate fee.[29]
Spouses should indicate that they seek to naturalize through the general provision[30] or on the basis of their marriage to a U.S. citizen for 3 years[31] and to rely on INA 319(e) to meet the applicable continuous residence and physical presence requirements. Spouses should also write in: “319(e) Overseas Naturalization,” if so desired. Only those eligible spouses who prefer naturalization abroad should apply for that option. Spouses who prefer to apply for naturalization in the United States may still elect to do so.
Form DD-1278, Certificate of Overseas Assignment to Support Application to File Petition for Naturalization
Spouses should include Form DD-1278 along with their naturalization application. Form DD-1278 must be completed and signed by the military official certifying the applicant has “concurrent travel orders” and is authorized to join their spouse military service member abroad.
Fingerprint Cards (FD258)
The spouse should submit two completed fingerprint cards (FD-258). Spouses applying overseas must have their fingerprints taken at a U.S. military base, an overseas USCIS field office, or an American Embassy/Consulate. Spouses applying in the United States must have their fingerprints taken at a USCIS Application Support Center.
Filing Location
The spouse should review and submit their application in accordance with the form instructions. For qualifying family members stationed outside of the United States, USCIS determines which field office has jurisdiction over the application.[32]
C. Children of Military Members[33]
The table below serves as a quick reference guide to certain residence, physical presence, and overseas naturalization provisions for children of service members. The paragraphs that follow the table provide further guidance on each provision.
| INA Section[34] | Place of Residence | Lawful Admission | Treatment of Time Residing Outside the United States | Automatic Citizenship or Naturalization Outside the United States |
|---|---|---|---|---|
| 320 | United States (or certain children residing outside the United States with a parent who is a member of the U.S. armed forces or spouse of a member of the U.S. armed forces[35]) | Must be LPR | Must reside with U.S. citizen parent in the United States | May acquire automatic citizenship (must take oath and be issued the Certificate of Citizenship in the United States) |
| 322 | Outside the United States | No lawful admission required if child meets INA 322(d) requirements | Must reside with U.S. citizen parent stationed outside of the United States | Children who have not already acquired citizenship under INA 320, must apply, but may complete entire naturalization process from outside the United States (must take oath before 18th birthday) |
1. Children of Service Members Residing in the United States (INA 320)
Children of members of the U.S. armed forces residing in the United States may automatically acquire citizenship.[36] The child must be under 18 years of age and must be an LPR in order to qualify. In order to obtain a Certificate of Citizenship, a child who has automatically acquired citizenship must follow the instructions on the Application for Certificate of Citizenship (Form N-600).[37]
2. Children of Service Members Residing Abroad (INA 322)
In general, INA 322 provides that a parent who is a U.S. citizen (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born and residing outside of the United States who has not acquired citizenship automatically under INA 320. The child must naturalize before he or she reaches 18 years of age.
The general criteria to qualify under INA 322 include that the child must be temporarily present in the United States pursuant to a lawful admission in order to complete the naturalization. The child’s qualifying U.S. citizen parent must also have been physically present in the United States or its outlying possessions for at least 5 years (2 of which after the age of 14).[38]
On January 28, 2008, INA 322 was amended to permit certain eligible children of members of the armed forces to become naturalized U.S. citizens without having to travel to the United States for any part of the naturalization process.[39]
The amendments benefit children of U.S. citizen members of the military who are accompanying their parent abroad on official orders.[40] Specifically, INA 322(d) provides that:
- Such children are not required to have a lawful admission or be present in the United States; and
- The U.S. citizen service member who is the child’s parent may count any period of time he or she has resided abroad on official orders as physical presence in the United States.
These benefits are available only to biological, legitimated, or adopted children of U.S. citizen members of the U.S. armed forces and do not apply to step-children of the U.S. citizen parent. This is because the definition of “child” applicable to citizenship and naturalization provisions does not include step-children. The biological or legitimated child of a U.S. citizen parent (and member of the U.S. armed forces) must meet the requirements in INA 101(c)(1). An adopted child must meet the requirements for adopted children.[41]
USCIS will ensure that the child of a member of the U.S. armed forces is not already a U.S. citizen (has not acquired automatic citizenship[42]) prior to making a determination that he or she qualifies for naturalization through INA 322.
3. Lawful Admission and Maintenance Status Not Required (INA 322(d))
The child of a service member who is residing abroad with the service member per official orders is exempt from the temporary physical presence, lawful admission, and maintenance of lawful status requirements.[43]
4. Treatment of Physical Presence of U.S. Citizen Parent Residing Abroad
Any period of time the U.S. citizen service member who is the child’s parent is residing or has resided abroad will be treated as physical presence in the United States if:
- The child is authorized to accompany and reside abroad with the service member per official orders;
- The child is accompanying and residing abroad with the service member; and
- The service member is residing or has resided abroad per official orders.
The first two conditions above are the triggering events that allow any period of time abroad to count as physical presence in the United States for the U.S. citizen parent.[44]
If the child is residing abroad with his or her U.S. citizen parent per official orders at the time of filing the Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K), then any previous time the parent has resided abroad on official orders will be treated as physical presence in the United States regardless of whether the child resided with the parent.
5. Overseas Naturalization for Children Eligible under INA 322
The child of a service member who is on official orders authorizing the child to accompany and reside with that parent is not required to be an LPR or to have any other kind of lawful admission in the United States. The child may complete his or her entire naturalization process, to include filing and oath, while residing abroad.[45]
6. Application and Filing
Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322
To apply for citizenship for eligible children who live abroad and meet the requirements under INA 322, applicants must submit an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) in accordance with the instructions on the form and with appropriate fee.[46]
Evidence of Residence Abroad
The applicant may show that the child resides abroad on official orders with the U.S. citizen-parent service member by submitting a copy of the PCS orders that include the child’s name.
If the PCS orders do not specifically name the applicant beyond reference to “child” or “dependent,” then also include a copy of the service member’s Form DD1172 (DEERS Enrollment), naming the child.
Filing Location
Applicants must submit Form N-600K in accordance with the instructions on the form. USCIS will permit such applications to be filed with the USCIS overseas office having jurisdiction over the applicant’s overseas residence.[47]
D. Naturalization for Surviving Spouse, Child, or Parent of Service Member (INA 319(d))
The spouse, child, or parent of a deceased U.S. citizen member of the U.S. armed forces who died during a period of his or her honorable service may be eligible for naturalization as the surviving relative of the service member. This includes surviving relatives of service members who were granted posthumous citizenship.[48]
The surviving spouse must have been living in marital union with the U.S. citizen service member spouse and must not have been legally separated at the time of his or her death. The spouse, however, remains eligible for naturalization if the spouse has remarried since the service member’s death.[49]
The surviving spouse, child, or parent must meet the general naturalization requirements, except for the residence or physical presence requirements in the United States.
Footnotes
[^ 1] See the National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181 (PDF), 122 Stat. 3, which amended INA 284, INA 319, and INA 322.
[^ 2] See INA 284(b).
[^ 3] See INA 319(e).
[^ 4] See INA 322(d).
[^ 5] See INA 319(e) and INA 322(d).
[^ 6] This section describes certain benefits on residence, physical presence, and overseas naturalization for spouses of service members. See Part G, Spouses of U.S. Citizens [12 USCIS-PM G], for guidance on the general spousal naturalization provisions.
[^ 7] See INA 316(a). See Part G, Spouses of U.S. Citizens [12 USCIS-PM G].
[^ 8] See INA 316(a). See Part D, General Naturalization Requirements [12 USCIS-PM D].
[^ 9] See INA 319(a).
[^ 10] See INA 319(b).
[^ 11] See Part G, Spouses of U.S. Citizens, Chapter 4, Spouses of U.S. Citizens Employed Abroad [12 USCIS-PM G.4].
[^ 12] See INA 319(b). See 8 CFR 319.2.
[^ 13] See INA 316(a).
[^ 14] See INA 319(a).
[^ 15] See Part G, Spouses of U.S. Citizens [12 USCIS-PM G]. See 8 U.S.C. 1443a.
[^ 16] See INA 319(e). See 8 CFR 316.5(b)(6). See 8 CFR 316.6.
[^ 17] See INA 316(a).
[^ 18] See INA 319(a).
[^ 19] See Section A, General Provisions for Spouses, Children, and Parents of Military Members [12 USCIS-PM I.9(A)], for guidance on “official orders.”
[^ 20] See 8 CFR 316.5(b)(6). See 8 CFR 316.6.
[^ 22] See INA 319(a).
[^ 23] See INA 319(b).
[^ 25] See INA 319(a).
[^ 26] See INA 319(b).
[^ 27] See Part G, Spouses of U.S. Citizens, Chapter 4, Spouses of U.S. Citizens Employed Abroad, Section F, In the United States for Examination and Oath of Allegiance [12 USCIS-PM G.4(F)].
[^ 28] See 8 U.S.C. 1443a.
[^ 29] See Fee Schedule (Form G-1055).
[^ 30] See INA 316(a).
[^ 31] See INA 319(a).
[^ 32] See the Overseas Processing webpage for additional information.
[^ 33] This section describes certain benefits on residence, lawful admission, and overseas naturalization for children of service members. See Part H, Children of U.S. Citizens [12 USCIS-PM H], for guidance on the general naturalization, residence, and acquisition of citizenship provisions.
[^ 34] See 8 CFR 320.2 and 8 CFR 322.2.
[^ 35] See INA 320(c).
[^ 37] See Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320) [12 USCIS-PM H.4].
[^ 38] See Part H, Children of U.S. Citizens, Chapter 5, Child Residing Outside the United States (INA 322), Section C, Physical Presence of the U.S. Citizen Parent or Grandparent [12 USCIS-PM H.5(C)].
[^ 39] See the National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181 (PDF), 122 Stat. 3.
[^ 40] See Section A, General Provisions for Spouses, Children, and Parents of Military Members [12 USCIS-PM I.9(A)], for guidance on “official orders.”
[^ 41] See Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2]. See INA 101(b)(1)(E), (F), or (G).
[^ 43] See INA 322(d). See INA 322(a)(5) for the physical presence, lawful admission, and maintenance of lawful status requirements.
[^ 44] See INA 322(a)(2)(A).
[^ 45] See INA 322(d).
[^ 46] See Fee Schedule (Form G-1055).
[^ 47] See 8 U.S.C. 1443a.
[^ 48] See INA 319(d).
[^ 49] See 8 CFR 319.3.