Are you a non-citizen military service member experiencing difficulty obtaining an honorable service certification (N-426 form) in order to apply for U.S. citizenship? If so, you may be a class member in a lawsuit brought by other service members against the Department of Defense (“DOD”) to obtain the N-426 form. In August 2020, a federal court ruled that a DOD policy preventing service members from obtaining the N-426 form is unlawful.  

In April 2020, six non-citizen military service members, represented by the American Civil Liberties Union, filed a federal class action lawsuit — Samma v. Department of Defense — against DOD. The service members had been unable to obtain the honorable service certification necessary to obtain citizenship pursuant to an October 2017 DOD policy. The ACLU filed the case in the federal district court for the District of Columbia. In August 2020, the Court ruled that the policy’s requirement that non-citizens serve a minimum period of time before they can obtain an N-426 form is unlawful. The Court also certified the class, meaning that DOD can no longer withhold an N-426 form from anyone in the same situation (as explained below) because they have not served the minimum period of time in the policy.

If you believe you meet all of the criteria below, the ACLU invites you to fill out our intake form.

Through the Immigration and Nationality Act (“INA”), Congress granted non-citizen service members serving honorably in the U.S. military during a “period of hostilities” the right to naturalize expeditiously. The INA waives many of the typical requirements for naturalization for these service members, including a minimum length of residence or physical presence in the United States. On July 3, 2002, President George W. Bush issued Executive Order 13269, which designated the period “beginning on September 11, 2001” as a period of hostilities. The Executive Order remains in effect to this day. Since 9/11, more than 100,000 service members have obtained their citizenship through the expedited military naturalization process. 

A service member seeking expedited citizenship must first obtain an honorable service certification, or N-426 form, from DOD. Before October 2017, DOD issued N-426 forms to service members who had served honorably for at least one day, without requiring a longer minimum period of service. Service members were able to obtain an N-426 form almost immediately upon entering service and prior to deployment.

However, in October 2017, DOD issued a policy that added new requirements before non-citizen service members could obtain an N-426 form. One new requirement was a minimum service duration. As a result, under the new policy, active duty service members had to serve 180 days and service members in the Selected Reserves had to serve one year before they could obtain an N-426 form.

The new policy also added a second requirement. The policy required a commissioned officer of at least pay grade O-6 to certify the N-426 form. This drastically reduced the number of individuals with authority to sign N-426 forms. Before, a broad range of military personnel with access to an individual’s service records could certify the N-426. 

In April 2020, six non-citizen service members filed a lawsuit challenging the minimum service duration requirement and the requirement that an officer of O-6 pay grade or higher certify the N-426 form. The service members argued that these requirements violated two statutes, the INA and the Administrative Procedure Act on the basis that DOD’s new policy exceeded its authority under the INA, and DOD could provide no reason for the new requirements. The service members also argued that these requirements resulted in significant delays in the military naturalization process, for them and all other service members in the same situation. They explained that the new policy caused irreparable harm, including preventing service members from enjoying the privileges of citizenship, such as the right to vote, sponsor immediate family members, and travel with a U.S. passport.

In August 2020, the Court ruled in favor of the service members. In addition to the national ACLU, the service members were represented by two ACLU state affiliates, the ACLU of Southern California and the ACLU of the District of Columbia.

Because the Court ruled in favor of the service members, the minimum service duration requirement no longer applies. The Court explained that it was “Congress’s intent to allow noncitizen service members to apply for naturalization under § 1440 [of the INA] without regard to the amount of time they have served.” (Order, Aug. 25, 2020). The Court ordered this requirement to be vacated, which means that class members (defined below) no longer have to wait before obtaining the N-426 form. Class members can get their N-426 forms after a single day of service and the ACLU can help them through the certification process.  

The Court also certified the class, which means that anyone in the same situation as the six service members who filed this case can benefit from the Court’s ruling eliminating the minimum service duration requirement. The Court also appointed the ACLU to represent the class. In order to join the class, you must meet all of the following criteria:  

  1. You are a non-citizen serving in the U.S. military;  
  2. You enlisted or began your service on or after October 13, 2017; 
  3. You have requested, but not received, a certified N-426 form; and  
  4. You are not a Selected Reserve MAVNI in the class certified in the Kirwa v. U.S. Dep’t of Defense, No. 17-cv-1793 (D.D.C. Dec. 1, 2017) lawsuit. 

If you believe you meet all of the above criteria, the ACLU invites you to fill out our intake form here.

This website is not a solicitation or offer by the ACLU and its affiliates to represent any persons or entities. The information on this website does not provide legal advice on any matter and should not be a substitute for seeking legal advice. The ACLU cannot promise that the information on this site is complete, accurate, or up-to-date.

The ACLU and its affiliates cannot represent you in your individual immigration case or through the naturalization process with the United States Citizenship and Immigration Services (USCIS). However, as a result of the Court’s order in Samma, we may be able to assist with ensuring that your N-426 form is certified in a timely manner. If you are encountering difficulties obtaining the N-426 form, we invite you to fill out our intake form

The ACLU and its affiliates cannot promise that any information you provide through this website will lead to any specific action by the ACLU. Once you submit your information, the ACLU may not do anything—including contact you—about your situation. The ACLU will keep submitted information (including name, address, telephone number, and email) confidential, and will share it only with co-counsel to jointly review your situation and conduct follow-up with you, if necessary. We will keep this information confidential unless you give us permission to use it or unless a court orders us to turn it over (although we will attempt to prevent any disclosure).

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