INS Clarifies Effect of Failure to Register for Selective Service on Naturalization Eligibility
Posted Aug 3, 1999

One often overlooked issue that naturalization applicants must confront is Selective Service registration. Though mandatory military conscription does not currently exist in the U.S., there is a system, known as the Selective Service System, for registering men who are eligible to serve, in the event a military draft should become necessary. Lawful (as well as unlawful!) U.S. resident men ages 18-25 are required to register. Non-immigrants are not required to register.

At the Law Office of Sheela Murthy, we have met many men who were unaware of the registration requirement when they first obtained their permanent resident status, and now are wondering, at the naturalization stage, what can be done. Certainly, if they are still 25 or younger, the obvious solution is to promptly register. However, if they are already 26 years or older, the best that can be done is to obtain a status letter from the Selective Service System and then explain in an affidavit their reasons for not registering. The law indicates that they can still be approved if the INS Officer is convinced that the failure to register was not knowing and willful.

INS has now issued guidance for handling applications by those who, for whatever reason, failed to register. The memo begins by pointing out that naturalization applicants must show that they have been, for the five years of required residence (3 years for persons married to U.S. citizens), a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed toward the good order and happiness of the United States. It is also necessary to state under oath ones willingness to bear arms, if required, for the U.S.

Based upon the above legal requirements, INS has developed a policy that a person who willfully fails to register for Selective Service should not be eligible for naturalization. However, failure to register is not a permanent bar to naturalization. Certainly, if an applicant is under 26 and has not registered, he should be told to register, and the INS will provide the opportunity to do so before making a decision on his application. If he does not register, the application will be denied. For applicants who are 26 or over, the INS looks to the five or three- year period described above, for showing attachment to the Constitution etc. Applicants between 26 and 31 years of age (26-29 for those married to U.S. citizens) must show either that they were not required to register, or that their failure to register was not knowing and willful.

Applicants over 31 years of age (or over 29 for those married to U.S. citizens) will not ordinarily be denied solely for failure to register, even if that failure was knowing and willful. If there is other evidence, besides the failure to register, to show that the person is not well disposed to the good order etc. then the person may be denied naturalization on that basis.

The Law Office of Sheela Murthy is grateful to INS for clearly spelling out what the requirements are, and providing well-reasoned and reasonable guidelines for INS officers. This memo will go a long way to reduce the anxiety of those who wish to become U.S. citizens and find out belatedly that they were required to register for Selective Service.