Members of the military often face special challenges when bringing foreign born nationals into the United States. The Department of Defense recognizes any spouse, regardless of nationality, where the marriage to the service member is legal. However, for immigration purposes, foreign born spouses present unique challenges when returning to the United States. The ability to remain in the US legally (that is, "in-status") and to obtain a green card (LPR status) can be challenging.
This blog article deals only with the challenge of military spouses who did NOT properly obtain a valid visa when entering, or allowed their visa to lapse AFTER entering the US but before filing for I-485 adjustment of status (converting to an LPR). The standard, I-130/I-485/I-601 (and soon, I-601A) method for correcting this status can still be used -- however, military spouses have an additional tool in their arsenal -- the Del Mundo Case (Del Mundo v. Rosenberg, 341 F.Supp. 345). A rather old case, the law is still valid, and the holding has not been overturned.
Essentially, this case does two things. First, it establishes that an active duty service member is entitled to have his/her spouse accompany him/her on all duty assignments, including those in the US (this prevents deportation of an alien spouse). The for this is: (a) is the US citizen an active duty military members? (2) is the lawful evidence of a marriage between the active duty military member and the illegal alien? If both of these are true, then the illegal alien spouse is no longer illegal, but rather has "in-status" standing so long as he/she is married to the active duty military member. This is important! If the alien spouse is "in-status", then there is no need for I-601 filing, and an I-485 can be submitted immediately.
The second aspect of this case is the establishment that INA section 284 supports an active duty service member who is ALSO a US Citizen from being deprived of his right to be with his spouse due to orders. This is reading the section in opposite of how it is presented. Section 284 indicates no alien service member will be deprived of his/her rights to be in the US on account of his/her alienship. The Court interpreted this section liberally, indicating that it would make no sense to prevent an alien service member rights to be in the country because of military orders, but deny a US citizen the right to be in the country due to military orders simply because his/her spouse was an alien. Essentially, the Court extended the coverage of Section 284 to US citizens who have foreign national wives or husbands.
Military immigration issues can be very complicated, but this case holding, and the interpretation it presents of INA section 284, are handy tools to get the relief many spouses need. If you are in the military, and need immigration assistance, please contact us for a free consultation. We can help!
Sean R. Hanover, Esq