TAB 2 ADVICE ABOUT POSSIBLE LOSS OF U.S. CITIZENSHIP AND DUAL NATIONALITY The Department of State is responsible for determining the citizenship status of a person located outside the United States or in connection with the application for a U.S. passport while in the United States. POTENTIALLY EXPATRIATING STATUTES Section 349 of the Immigration and Nationality Act, as amended, states that U.S. citizens are subject to loss of citizenship if they perform certain acts voluntarily and with the intention to relinquish U.S. citizenship. Briefly stated, these acts include: (1) obtaining naturalization in a foreign state (Sec. 349(a)(1) INA); (2) taking an oath, affirmation or other formal declaration to a foreign state or its political subdivisions (Sec. 349(a)(2) INA); (3) entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349(a)(3) INA); (4) accepting employment with a foreign government if (a) one has the nationality of that foreign state or (b) a declaration of allegiance is required in accepting the position; (Sec. 349(a)(4) INA); (5) formally renouncing U.S. citizenship before a U.S. consular officer outside the United States (Sec. 349(a)(5) INA); (6) formally renouncing U.S. citizenship within the U.S. (but only “in time of war") (Sec. 349(a)(6) INA); (7) conviction for an act of treason (Sec. 349 (a)(7) INA). ADMINISTRATIVE STANDARD OF EVIDENCE As already noted, the actions listed above can cause loss of U.S. citizenship only if performed voluntarily and with the intention of relinquishing U.S. citizenship. The Department has a uniform administrative standard of evidence based on the premise that U.S. citizens intend to retain United States citizenship when they obtain naturalization in a foreign state, subscribe to routine declarations of allegiance to a foreign state, or accept non-policy level employment with a foreign government. DISPOSITION OF CASES WHEN ADMINISTRATIVE PREMISE IS APPLICABLE In light of the administrative premise discussed above, a person who: (1) is naturalized in a foreign country; (2) takes a routine oath of allegiance; or (3) accepts non-policy level employment with a foreign government and in so doing wishes to retain U.S. citizenship need not submit prior to the commission of a potentially expatriating act a statement or evidence of his or her intent to retain U.S. citizenship since such an intent will be presumed. When such cases come to the attention of a U.S. consular officer, the person concerned will be asked to complete a questionnaire to ascertain his or her intent toward U.S. citizenship. Unless the person affirmatively asserts in the questionnaire that it was his or her intention to relinquish U.S. citizenship, the consular officer will certify that it was not the person's intent to relinquish U.S. citizenship and, consequently, find that the person has retained U.S. citizenship. DISPOSITION OF CASES WHEN ADMINISTRATIVE PREMISE IS INAPPLICABLE The premise that a person intends to retain U.S. citizenship is not applicable when the individual: (1) formally renounces U.S. citizenship before a consular officer; (2) takes a policy level position in a foreign state; (3) is convicted of treason; or (4) preforms an act made potentially expatriating by statute accompanied by conduct which is so inconsistent with retention of U.S. citizenship that it compels a conclusion that the individual intended to relinquish U.S. citizenship. (Such cases are very rare.) Cases in categories 2, 3, and 4 will be developed carefully by U.S. consular officers to ascertain the individual's intent toward U.S. citizenship. PERSONS WHO WISH TO RELINQUISH U.S. CITIZENSHIP An individual who has performed any of the acts made potentially expatriating by statute who wishes to lose U.S. citizenship may do so by affirming in writing to a U.S. consular officer that the act was performed with an intent to relinquish U.S. citizenship. Of course, a person always has the option of seeking to formally renounce U.S. citizenship in accordance with Section 349(a)(5) INA. APPLICABILITY OF ADMINISTRATIVE PREMISE TO PAST CASES The premise established by the administrative standard of evidence is applicable to cases adjudicated previously. Persons who previously lost U.S. citizenship may wish to have their cases reconsidered in light of this policy. A person may initiate such a reconsideration by submitting a request to the nearest U.S. consular office or by writing directly to: Director, Office of Citizens Consular Services Department of State Washington, DC 20520-4818 Each case will be reviewed on its own merits taking into consideration, for example, statements made by the person at the time of the potentially expatriating act. DUAL NATIONALITY When a person is naturalized in a foreign state (or otherwise possesses another nationality) and is thereafter found not to have lost U.S. citizenship the individual consequently may possess dual nationality. It is prudent, however, to check with authorities of the other country to see if dual nationality is permissible under local law. The United States does not favor dual nationality as a matter of policy, but does recognize its existence in individual cases. QUESTIONS For further information, please contact the appropriate geographic division of the Office of Citizens Consular Services: Europe and Canada Division-(202) 647-3445. Inter-American Division (202) 647-3712. East Asia and Pacific Division (202) 647-3675. Near Eastern and South Asia Division (202) 647-3926. Africa Division (202) 647-4994. What it is DUAL NATIONALITY Dual nationality is the simultaneous possession of two citizenships. The Supreme Court of the United States has stated that dual nationality is "a status long recognized in the law" and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not without more mean that he renounces the other", Kawakita v. U.S., 343 U.S. 717 (1952). The concepts discussed in this leaflet apply also to persons who have more than two nationalities. How acquired Dual nationality results from the fact that there is no uniform rule of international law relating to the acquisition of nationality. Each country has its own laws on the subject, and its nationality is conferred upon individuals on the basis of its own independent domestic policy. Individuals may have dual nationality not by choice but by automatic operation of these different and sometimes conflicting laws. The laws of the United States, no less than those of other countries, contribute to the situation because they provide for acquisition of U.S. citizenship by birth in the United States and also by birth abroad to an American, regardless of the other nationalities which a person might acquire at birth. For example, a child born abroad to U.S. citizens may acquire at birth not only American citizenship but also the nationality of the country in which it was born. Similarly, a child born in the United States to foreigners may acquire at birth both U.S. citizenship and a foreign nationality. The laws of some countries provide for automatic acquisition of citizenship after birth, for example, by marriage. In addition, some countries do not recognize naturalization in a foreign state as grounds for loss of citizenship. A person from one of those countries who is naturalized in the United States keeps the nationality of the country of origin despite the fact that one of the requirements for U.S. naturalization is a renunciation of other nationalities. Current law and policy The current nationality laws of the United States do not refer specifically to dual nationality. The automatic acquisition or retention of a foreign nationality does not affect U.S. citizenship; however, under limited circumstances, the acquisition of a foreign nationality upon one's own application or the application of a duly authorized agent may cause loss of U.S. citizenship under Section 349(a)(1) of the Immigration and Nationality Act [8 U.S.C. 1481(a)(1)]. In order for loss of nationality to occur under Section 349(a)(1), it must be established that the naturalization was obtained voluntarily by a person eighteen years of age or older with the intention of relinquishing U.S. citizenship. Such an intention may be shown by the person's statements or conduct, Vance v. Terrazas, 444 U.S. 252 (1980), but in most cases it is assumed that Americans who are naturalized in other countries intend to keep their U.S. citizenship. As a result, they have both nationalities. United States law does not contain any provisions requiring U.S. citizens who are born with dual nationality to choose one nationality or the other when they become adults, Mandoli v. Acheson, 344 U.S. 133 (1952). While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government does not endorse dual nationality as a matter of policy because of the problems which it may cause. Claims of other countries upon dual-national U.S. citizens often place them in situations where their obligations to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts to provide diplomatic and consular protection to them when they are abroad. Allegiance to which country It generally is considered that while dual nationals are in the other country of which they are citizens that country has a predominant claim on them. Like Americans who possess only U.S. citizenship, dual national U.S. citizens owe allegiance to the United States and are obliged to obey its laws and regulations. Such persons usually have certain obligations to the foreign country as well. Although failure to fulfill such obligations may have no adverse effect on dual nationals while in the United States because the foreign country would have few means to force compliance under those circumstances, dual nationals might be forced to comply with those obligations or pay a penalty if they go to the foreign country. In cases where dual nationals encounter difficulty in a foreign country of which they are citizens, the ability of U.S. Foreign Service posts to provide assistance may be quite limited since many foreign countries may not recognize a dual national's claim to U.S. citizenship. Which passport to use Section 215 of the Immigration and Nationality Act [8 U.S.C. 1185] requires U.S. citizens to use U.S. passports when entering or leaving the United States unless one of the exceptions listed in Section 53.2 of Title 22 of the Code of Federal Regulations applies. Dual nationals may be required by the other country of which they are citizens to enter and leave that country using its passport, but do not endanger their U.S. citizenship by complying with such a requirement. How to give up dual nationality Most countries have laws which specify how a citizen may lose or divest citizenship. Generally, persons who do not wish to maintain dual nationality may renounce the citizenship which they do not want. Information on renouncing a foreign nationality may be obtained from the foreign country's Embassies and Consulates or from the appropriate governmental agency in that country. Americans may renounce their U.S. citizenship abroad pursuant to Section 349(a)(5) of the Immigration and Nationality Act [8 U.S.C. 1481(a)(5)]. Information on renouncing U.S. citizenship may be obtained from U.S. Embassies and Consulates and the Office of Citizens Consular Services, Department of State, Washington, D.C. 20520. For further information on dual nationality, see Marjorie M. Whiteman's Digest of International Law (Department of State Publication 8290, released September 1967), Volume 8, pages 64-84. TAB 3 RENUNCIATION OF UNITED STATES CITIZENSHIP United States citizens have the right to remain citizens until they intend to give up citizenship. It is also the right of every citizen to relinquish United States citizenship. Section 349(a) of the Immigration and Nationality Act [8 U.S.C. 1481] states: a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality: . (5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or (6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense.. Renunciation is the most unequivocal way in which a person can manifest an intention to relinquish U.S. citizenship. In order for a renunciation under Section 349(a)(5) to be effective, all of the conditions of the statute must be met. In other words, a person wishing to renounce American citizenship must appear in person and sign an oath of renunciation before a U.S. consular or diplomatic officer abroad, generally at an American Embassy or Consulate. Renunciations which are not in the form prescribed by the Secretary of State have no legal effect. Because of the way in which Section 349(a)(5) is written and interpreted, Americans cannot effectively renounce their citizenship by mail, through an agent, or while in the United States. Section 349(a)(6) provides for renunciation of United States citizenship under certain circumstances in the United States when the United States is in a state of war. Such a state does not currently exist. Questions concerning renunciation of American citizenship under Section 349(a)(6) should be addressed to the Attorney General. Parents cannot renounce United States citizenship on behalf of their children. Before an oath of renunciation will be administered under Section 349(a)(5), persons under the age of eighteen must convince a U.S. diplomatic or consular officer that they fully understand the nature and consequences of the oath of renunciation and are voluntarily seeking to renounce their citizenship. Unites States common law establishes an arbitrary limit of age fourteen under which a child's understanding must be established by substantial evidence. Under Section 351(b) of the Immigration and Nationality Act [8 U.S.C. 1483(b)), a person who renounced U.S. citizenship before the age of eighteen years and "who within six months after attaining the age of eighteen years asserts his claim to United States nationality in such manner as the Secretary of State shall by regulation prescribe, shall not be deemed to have expatriated himself. The relevant regulation is Section 50.20(b) of Title 22 of the Code of Federal Regulations which requires that the person take an oath of allegiance to the United States before a diplomatic or consular officer in order to retain U.S. citizenship. Persons who contemplate renunciation of U.S. nationality should be aware that, unless they already possess a foreign nationality or are assured of acquiring another nationality shortly after completing their renunciation, severe hardship to them could result. In the absence of a second nationality, those individuals would become stateless. As stateless persons, they would not be entitled to the protection of any government. They might also find it difficult or impossible to travel as they would probably not be entitled to a passport from any country. Further, a person who has renounced U.S. nationality will be required to apply for a visa to travel to the United States, just as other aliens do. If found ineligible for a visa, a renunciant could be permanently barred from the United States. Renunciation of American citizenship does not necessarily prevent a former citizen's deportation from a foreign country to the United States. Persons considering renunciation should also be aware that the fact that they have renounced U.S. nationality may have no effect whatsoever on their U.S. tax or military service obligations. Nor will it allow them to escape possible prosecution for crimes which they may have committed in the United States, or repayment of financial obligations previously incurred in the United States. Questions about these matters should be directed to the government agency concerned. |