The week of July 20, 2009, Dr. Brown1 made
immigration history. Brown entered a field office of the U.S.
Citizenship and Immigration Service (USCIS) as a temporary worker
nonimmigrant visa holder, and emerged two hours later as a U.S.
citizen.2 Brown was the first person to naturalize
pursuant to a joint USCIS and Department of Defense (DOD) pilot
program called Military Accessions Vital to the National Interest,
or MAVNI. In exchange for serving in the U.S. Army Reserve Medical
Corps as a dentist, Brown skipped several years of processing time
involved in obtaining permanent residency. He also skipped the
mandatory five-year residency and physical presence requirements.
Brown went straight from nonimmigrant to U.S. citizen in less than
MAVNI permits nonimmigrants with medical training and/or certain
language skills to naturalize upon enlistment in the armed forces
without first obtaining permanent resident status (colloquially
known as a green card). The purpose of this article is to explain
the legal underpinnings, qualifications and risks and benefits of
the MAVNI program.
Immigration and Nationality Act (INA) section 329 (8 U.S.C. §
1440), or the wartime military naturalization statute, makes the
MAVNI program possible. This statute allows individuals who served
or are serving in the U.S. armed forces during a time of war or
hostilities to naturalize on an expedited basis using a
significantly simpler set of qualifications. Specifically, it
allows individuals who served in the U.S. military, air or naval
forces during World Wars I4 and II,5 the
Korean6 and Vietnam7 hostilities, and other
periods of hostilities as designated by executive order, to
naturalize on an expedited and simplified basis. On July 3, 2002,
President George W. Bush issued an executive order allowing
expedited naturalization pursuant to INA § 329 for non-citizens
serving on active duty in the U.S. armed forces from Sept. 11, 2001
to a date to be determined by further executive order.8
Wartime naturalization applicants must serve honorably, and if
separated from the service, separated under honorable
conditions.9 Additionally, applicants must be either
physically present in the United States or onboard a U.S. naval
vessel on the day of their enlistment or re-enlistment, or are
subsequently admitted to the United States as a permanent
Individuals who do not serve honorably, separate from the
service on account of alienage, as a conscientious objector, or
refuse to wear the uniform, are excluded from naturalization. Also,
citizenship may be revoked if an individual who is granted
citizenship while serving in the military or naval forces separates
from the service under other than honorable
When compared against the normal naturalization regime, the
wartime naturalization statute is very liberal. The Immigration and
Nationality Act normally requires naturalization applicants to be
admitted for permanent residence, reside in and be physically
present in the United States for five years, possess good moral
character, and be at least 18 years old.11 The wartime
naturalization statutes specifically waives the age requirement,
the requirement that the applicant be admitted for permanent
residence, the five-year residency and physical presence
requirements, and truncates the good moral character requirement to
one year prior to filing.12 Unlike the regular
naturalization regime, which requires applicants to possess good
moral character,13 naturalization pursuant to the
wartime naturalization statute is a defense to
The Department of Defense controls access to the wartime
naturalization process because DOD controls enlistment into the
armed forces. Federal law determines who may and who may not enlist
in the armed forces. It limits enlistment to U.S. citizens, Lawful
Permanent Residents, and non-citizen U.S. nationals.15
However, the military enlistment statutes permit the armed forces
to enlist other non-citizens if the secretary of defense determines
that the enlistment is in the national interest.16 On
Nov. 28, 2008, the secretary of defense created MAVNI by signing a
memorandum stating that is was in the national interest to recruit
non-citizens into the armed forces.17 By creating MAVNI,
the Department of Defense seeks to leverage its access to the very
simple and liberal wartime naturalization statute to attract and
obtain the services of highly skilled and highly educated
On Feb. 23, 2009, the Department of the Army announced that it
would recruit two different classes of nonimmigrants: health care
workers and individuals with knowledge of certain languages and
cultures.18 In order to qualify to enlist under MAVNI,
the applicant must be lawfully present in the United States in one
of the following nonimmigrant statuses: E, F, H, I, J, K, L, M, O,
P, Q, R, S, T, TC, TD, TN, U, V, TPS, or
asylee/refugee.19 MAVNI enlistees are required reside in
the United States in one of the above listed nonimmigrant status
for two years prior to the enlistment. Individuals holding "B"
visitor status or Visa Waiver status are not eligible to apply for
Noncitizens who entered the United States without inspection,
have failed to maintain their nonimmigrant status or have departed
the United States for any single period of more than 90 days in the
last two years are not eligible to enlist.20
Additionally, MAVNI enlistees are required to pass background
checks and skill verification just like any other individual
desiring to join the Army.21
Upon enlistment, health care workers such as nurses, physicians,
surgeons, dentists and veterinarians are commissioned as officers
in the Army Medical Corps, and are obligated to serve either on
active duty in the regular Army for three years, or in the Army
Reserve for six years.22 Individuals with knowledge of
the following languages and cultures are eligible to enlist:
Albanian, Amharic, Arabic, Azerbaijani, Bengali, Burmese,
Cambodian-Khmer, Chinese, Czech, Hausa, Hindi, Hungarian, Igbo,
Indonesian, Korean, Kurdish, Lao, Malay, Malayalam, Moro, Nepalese,
Persian [Dari and Farsi], Polish, Punjabi, Pushtu (also known as
Pashto), Russian, Sindhi, Sinhalese, Somali, Swahili, Tamil,
Turkish, Turkmen, Urdu and Yoruba. Language-skilled MAVNI enlistees
are required to serve on active duty in the regular Army for four
Once and assuming that the Army accepts the nonimmigrant, and
the nonimmigrant has signed the enlistment contract and taken the
oath of enlistment, the nonimmigrant becomes eligible to naturalize
pursuant to the wartime naturalization statute.
In order to avoid any confusion as to the new soldier's
immigration status, the Army requires the new soldier to file their
naturalization application shortly after enlistment. USCIS
expedites the adjudication of MAVNI military naturalization
applications.23 USCIS is coordinating the adjudication
of the naturalization application and administration of the oath of
citizenship concurrently with graduation from the Army's basic
training.24 Members of the private bar represent health
care workers enlisting in the Army reserve. USCIS expedites the
adjudication of these cases, including flexible interview
scheduling25 and a same-day oath ceremony.
Nonimmigrant spouses and minor children also benefit from MAVNI.
Nonimmigrant spouses and minor children may adjust status to lawful
permanent resident as the immediate relative of a U.S. citizen once
the MAVNI enlistee naturalizes.26 As the spouse of a
U.S. citizen, the spouse of the MAVNI enlistee may naturalize after
three years of permanent residency, so long as the spouse lives in
marital union with their U.S. citizen spouse.27 Under
the Child Citizenship Act of 2000, minor children who reside with
their U.S. citizen parent are granted U.S. citizenship upon their
admission as a lawful permanent resident.28
Potential complications arise when the former nonimmigrant and
newly minted U.S. citizen was a J-1 nonimmigrant that is subject to
the two-year home residency requirement. The J-1 visa program was
created to allow individuals to come to the United States to
participate in cultural exchange programs.29 In order to
ensure that J-1 nonimmigrants depart the United States at the end
of their program, certain individuals who enter the United States
as J-1 exchange visitors may not be admitted for permanent
residency in the United States until they either reside in their
country of birth or last residence for two years or obtain a waiver
of the home residency requirement.30 The Immigration and
Nationality Act extends the two-year home residency requirement to
the spouse and minor children that accompany the J-1 exchange
visitor.31 While the two-year home residency requirement
will not prevent the grant of citizenship under the wartime
naturalization statute, it may prevent the spouse and minor
children from adjusting status or receiving an immigrant visa.
Spouses and minor children of J-1 MAVNI enlistees may be
inadmissible, and may require a waiver of the two-year home
residency requirement even though the principal J-1 visa holder
does not require a waiver.
Potential MAVNI enlistees should also examine the costs and
benefits of enlisting in the U.S. Army. MAVNI may be an alternative
path to immigrate for an employment-based immigrant who is
otherwise stuck as a nonimmigrant for a period of years or decades
waiting for an immigrant visa to become available.32
Service in the U.S. Army would release an individual from the
perceived servitude of temporary worker nonimmigrant status and
grant the permanent right of abode in the United States and
unrestricted access to the U.S. labor market.
Service in the military during a time of war is not without
personal risks. Conservative talk radio host Rush Limbaugh often
states that the purpose of the armed forces is to kill people and
break things.33 Service in the Army in a theater of war
involves shooting people and being shot at. A language specialist
enlistee may find themselves in the unenviable position of being
sent back to live among his or her former countrymen, this time
wearing the uniform of and working on behalf of an armed force that
is perceived as an occupier and/or the enemy.34 An Army
Reserve health care professional could be called up to active duty
and sent to a combat theater for several years. The health care
professional may be forced to leave a lucrative practice to serve
in the U.S. Army for a fraction of the pay the individual received
in civilian life.35 Additionally, although Army health
care professionals do not normally accompany troops on combat
operations, Army physicians have died in the Iraqi theater of
war.36 Finally, MAVNI enlistees are not truly free from
the immigration system upon naturalization. U.S. citizenship can be
revoked if the enlistee fails to serve honorably and is discharged
under other than honorable conditions.37
Brown's naturalization application was adjudicated in less than
a month. By agreeing to serve in the U.S. military, Brown saved
roughly seven years of immigration processing time. The U.S. Army
is using its access to favorable naturalization statutes to attract
talent needed to effect its mission. Although limited in scope to
individuals with medical and language skills, to the right
candidate, MAVNI may make a reasonable alternative to
1. Dr. Brown is a pseudonym used at the request of the
Army to protect the applicant's family members in Brown's native
2. "Dr. Brown," The Blog @Homeland Security,
http://www.dhs.gov/journal/theblog/labels/MAVNI.html (July 25,
2009, 9:00 a.m.).
4. April 6, 1917 to November 11, 1918. 8 C.F.R. § 329.1(2)
5. September 1, 1939 to December 31, 1946. 8 C.F.R. §
6. June 25, 1950 to July 1, 1955. 8 C.F.R. § 329.2(a)(3)
7. February 28, 1961 to October 15, 1978. 8 C.F.R. §
8. Exec. Order No. 13,269, 67 Fed. Reg. 45,287 (July 8,
9. The statute directs the executive department in which
the applicant served to determine the status of service and to
provide the applicant with evidence of such service. USCIS requires
military naturalization applicants to submit a duly authenticated
form N-426 as evidence of military or naval service.
10. INA § 329(c), 8 USC § 1440(c) (2006).
11. INA § 316, 8 USC § 1427 (2006).
12. 8 C.F.R. § 329.2(d) (2009).
13. See INA § 101(f), 8 USC § 1101(f) (2006 &
Supp. I 2008), for the definition of good moral character.
14. United States ex rel. Walther v. Dist.
Director of Immigration & Naturalization, 175 F.2d 693 (2nd
Cir. 1949); Petition of Warhol, 84 F.Supp. 543 (D.C. Minn. 1949);
but see Duenas v. U.S., 330 F.2d 726 (9th Cir. 1964)
(holding that a noncitizen that has a final order of deportation
was not permitted to naturalize pursuant to INA § 329).
15. 10 USC § 504(b)(1) (2006).
16. 10 USC § 504(b)(2) (2006).
17. Margaret D. Stock, Ten Things That Immigration
Lawyers Should Know About the Army's New Non-Citizen Recruiting
Program, 14-6 Bender's Immigr. Bull. 1
(Mar. 15, 2009).
19. Id. at 2. Individuals that have been granted
asylum or refugee status are eligible. Individuals with a pending
asylum application are not eligible.
21. Id. at 2-3.
22. MAVNI Fact Sheet 1, available at
23. "Dr. Brown," The Blog @Homeland Security,
http://www.dhs.gov/journal/theblog/labels/MAVNI.html (July 25,
2009, 9:00 a.m.).
24. Guidance for Designated School Officials on F and M
Student Enlistment in the U.S. Military Under the Military
Accessions Vital to the National Interest Program (MAVNI): 0901-01,
25. From the author's experience and unlike the normal
naturalization process where CIS mail the applicant and counsel an
appointment notice with a fixed date and time to appear in a CIS
field office, the local CIS field office contacts MAVNI
naturalization applicants and/or counsel via telephone or e-mail
and asks when they would like to appear.
26. INA § 201(b), 8 USC § 1151(b) (2006) and INA § 245, 8
USC §1255 (2006 & Supp. I 2008). Derivative family members will
lose their nonimmigrant status upon the naturalization of the
principal nonimmigrant. However there is no requirement that a
nonimmigrant derivative spouse and minor child maintain
nonimmigrant status to adjust because they are now the immediate
relative of a U.S. citizen. INA §245 (c), 8 USC §1255 (c)
27. INA § 319(a), 8 USC § 1430(a) (2006).
28. INA § 320, 8 USC § 1431 (2006).
29. INA § 101(a)(15)(J), 8 USC § 1101(a)(15)(J)
30. INA § 212(e), 8 USC § 1182(e) (2006).
31. The act states, "[n]o person admitted under section
101(a)(15)(J)" that is subject to the two year foreign residency
requirement shall be permitted to receive an immigrant visa. This
statute includes spouses and minor children of J-1 visa holders who
are admitted pursuant to INA § 101(a)(15)(J).
32. Charles Kuck, Get In The Line? What Line? The
Tragic Tale of Employment Based Immigrant Visa Delays, AILA
(Oct. 24, 2009 at 9:04 a.m.).
33. Rush Limbaugh, See, I Told You So 290 (Pocket
34. Bruce Falconer, Military Translators at War,
Mother Jones, Mar.
23, 2009 (describing the personal harm that has befallen civilian
Iraqi translators working for the U.S. Army).
35. Tracy L. Settle, Maintaining Small Business
Support in Times of Increased Army National Guard Utilization: An
Impending Crisis (Mar. 15, 2006) (masters thesis, U.S. Army
36. Damon Adams, Top U.S. Military Doctor Dies in
Crash, Am. Med.
News, Mar. 17, 2007 (describing the death and paying tribute
to Col. Brian D. Allgood who died in a plane crash in Iraq and Maj.
Mark D. Taylor who died as a result of wounds sustained during a
rocket attack on his living quarters in Fallujah, Iraq).
37. INA § 329(c), 8 USC § 1440(c) (2006).
Richard M. Green, who practiced
immigration and nationality law in North Grafton, Mass., recently
moved to California. A graduate of Chapman University School of Law
in Orange, Calif., Green is admitted to practice before the courts
of the Commonwealth of Massachusetts and the State of California.
He also taught immigration and nationality law at Anna Maria
College in Paxton, Mass.