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Date: Thu, 2 Mar 95 10:29:09 EST
From: Rich Wales <[log in to unmask]>
To: [log in to unmask]
Subject: Dual Citizenship FAQ (part 2 of 2)

DUAL CITIZENSHIP FAQ:


DUAL NATIONALITY AND UNITED STATES LAW

Part 2 of 2: Reference Materials

BY RICH WALES

LAST REVISED: MON FEB 6 17:01:27 EST 1995

_________________________________________________________________

Table of contents

* Obtaining a copy of this document

* Disclaimers

* Questions and answers on dual US/other citizenship (in Part 1)

* United States law on dual citizenship


+ Citizenship vs. nationality
+ Acquisition of citizenship
+ Loss of citizenship
+ 1986 citizenship law amendments
+ 1994 citizenship law amendments
+ US passport regulations

* Supreme Court decisions on dual citizenship


+ Afroyim v. Rusk (1967)
+ Vance v. Terrazas (1980)
+ Mandoli v. Acheson (1952)
+ Kawakita v. U.S. (1952)

* State Department policies on dual citizenship


+ Information on Dual Nationality
+ Advice about Possible Loss of U.S. Citizenship and Dual
Nationality
+ Foreign Military Service

_________________________________________________________________

Obtaining a copy of this document

Owing to its size, the Dual Citizenship FAQ has been split into two
parts. Part 1 contains an overview of the subject, with answers to
frequently asked questions. Part 2 contains references to laws, court
cases, and administrative policies on dual citizenship.

The latest version of the Dual Citizenship FAQ can be found as


http://www.mks.com/home/richw/dualcit.html and
http://www.mks.com/home/richw/dualcit2.html on the World Wide Web.

A plain text version can be had as ftp://ftp.mks.com/usr/richw/dualcit


and ftp://ftp.mks.com/usr/richw/dualcit2 via anonymous FTP (i.e., FTP
to ftp.mks.com and get the file named /usr/richw/dualcit). Note that
the plain text version might not be as up to date as the hypertext
version on the World Wide Web.

If you don't have Internet access, you can get a copy of the plain
text version by sending e-mail to me ([log in to unmask]) with "Subject:
send dualcit" in the header (not the body) of your message. Both parts
of the FAQ (plain text form) will be mailed to you.

_________________________________________________________________

Disclaimers

I am not a lawyer, a professional immigration consultant, or a


government official. Nothing in this document should be considered
"legal advice" in any jurisdiction.

Unless indicated otherwise, any opinions or interpretations expressed


in this document are mine alone. In particular, this material does not
in any way express the opinions of my employer, Mortice Kern Systems
Inc. of Waterloo, Ontario, Canada.

If you are in a dual citizenship situation, or are contemplating such


a move, you should consider discussing your plans with an attorney who
is knowledgeable in this particular aspect of immigration law. At the
very least, I would encourage you to verify anything you may read here
with authoritative sources.

_________________________________________________________________
United States law on dual citizenship

* Citizenship vs. nationality

The US statutes on immigration and citizenship are codified in the


Immigration and Nationality Act, which can be found in Title 8 of
the United States Code, starting with section 1101 (8 U.S.C. 1101
ff.).

US law makes a distinction between "citizenship" and


"nationality." All US citizens are also US nationals; however,
some US nationals are not US citizens.

The term "national" is defined as follows in 8 U.S.C. 1101(a)(21)


and 1101(a)(22):

+ (21) The term 'national' means a person owing permanent


allegiance to a state.

+ (22) The term 'national of the United States' means (A) a


citizen of the United States, or (B) a person who, though not
a citizen of the United States, owes permanent allegiance to
the United States.

The concept of having US nationality, but not US citizenship, is


defined in 8 U.S.C. 1408. Basically, inhabitants of US territories
and possessions are US nationals, but not US citizens. However,
people born in the following US possessions are defined in 8
U.S.C. 1402-1407 to be citizens: Puerto Rico, Canal Zone, Guam, US
Virgin Islands, and Alaska and Hawaii (before they became states).

Although most references in this FAQ to US "citizenship" should,


for the sake of completeness, technically refer to US
"nationality", I have chosen to use the more common term in the
interests of clarity.

* Acquisition of citizenship

The Immigration and Nationality Act (8 U.S.C. 1401) defines the


following classes of people as having US citizenship from the time
of birth:

+ The following shall be nationals and citizens of the United


States at birth:

o (a) a person born in the United States, and subject to


the jurisdiction thereof;

o (b) a person born in the United States to a member of an


Indian, Eskimo, Aleutian, or other aboriginal tribe:
Provided, That the granting of citizenship under this
subsection shall not in any manner impair or otherwise
affect the right of such person to tribal or other
property;

o (c) a person born outside of the United States and its


outlying possessions of parents both of whom are
citizens of the United States and one of whom has had a
residence in the United States or one of its outlying
possessions, prior to the birth of such person;

o (d) a person born outside of the United States and its


outlying possessions of parents one of whom is a citizen
of the United States who has been physically present in
the United States or one of its outlying possessions for
a continuous period of one year prior to the birth of
such person, and the other of whom is a national, but
not a citizen of the United States;

o (e) a person born in an outlying possession of the


United States of parents one of whom is a citizen of the
United States who has been physically present in the
United States or one of its outlying possessions for a
continuous period of one year at any time prior to the
birth of such person;

o (f) a person of unknown parentage found in the United


States while under the age of five years, until shown,
prior to his attaining the age of twenty-one years, not
to have been born in the United States;

o (g) a person born outside the geographical limits of the


United States and its outlying possessions of parents
one of whom is an alien, and the other a citizen of the
United States who, prior to the birth of such person,
was physically present in the United States or its
outlying possessions for a period or periods totaling
not less than five years, at least two of which were
after attaining the age of fourteen years: Provided,
That any periods of honorable service in the Armed
Forces of the United States, or periods of employment
with the United States Government or with an
international organization as that term is defined in
section 288 of title 22 by such citizen parent, or any
periods during which such citizen parent is physically
present abroad as the dependent unmarried son or
daughter and a member of the household of a person (A)
honorably serving with the Armed Forces of the United
States, or (B) employed by the United States Government
or an international organization as defined in section
288 of title 22, may be included in order to satisfy the
physical-presence requirement of this paragraph. This
proviso shall be applicable to persons born on or after
December 24, 1952, to the same extent as if it had
become effective in its present form on that date.

Subsection (a) in the above is taken directly from the 14th


Amendment to the US Constitution. The effect of the phrase
"subject to the jurisdiction thereof" is that children born in the
US to foreign diplomats, officials, diplomatic staff, and the like
are not US citizens by birth.

In subsection (c), the phrase "has had a residence in the United


States" appears to be interpreted as meaning "lived in the US at
any time in his or her life for at least one year" -- based on my
own personal experience when I registered my foreign-born infant
son with the US consulate in Toronto early in 1994.

Prior to November 1986, the required amount of physical presence


in subsection (g) was ten years (not five), and at least five (not
two) of those years had to occur after the parent reached age 14.

A description of the US naturalization oath is given in 8 U.S.C.


1448(a). Of particular relevance to the dual citizenship issue is
that, as part of the oath, a new citizen must pledge "to renounce
and abjure absolutely and entirely all allegiance and fidelity to
any foreign prince, potentate, state, or sovereignty of whom or
which the applicant was before a subject or citizen." In practice,
it is unclear what if any true legal significance this statement
has any more.

* Loss of citizenship

The Immigration and Nationality Act (8 U.S.C. 1481) specifies the


following conditions under which US citizenship may be lost:

+ (a) From and after the effective date of this Act 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:--

o (1) obtaining naturalization in a foreign state upon his


own application or upon an application filed by a duly
authorized agent, after having attained the age of
eighteen years; or

o (2) taking an oath or making an affirmation or other


formal declaration of allegiance to a foreign state or a
political subdivision thereof, after having attained the
age of eighteen years; or

o (3) entering, or serving in, the armed forces of a


foreign state if (a) such armed forces are engaged in
hostilities against the United States, or (b) such
persons serve as a commissioned or noncommissioned
officer; or

o (4)(A) accepting, serving in, or performing the duties


of any office, post, or employment under the government
of a foreign state or a political subdivision thereof,
after attaining the age of eighteen years if he has or
acquires the nationality of such foreign state; or (B)
accepting, serving in, or performing the duties of any
office, post, or employment under the government of a
foreign state or a political subdivision thereof, after
attaining the age of eighteen years for which office,
post, or employment an oath, affirmation, or declaration
of allegiance is required; or

o (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

o (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; or

o (7) committing any act of treason against, or attempting


by force to overthrow, or bearing arms against the
United States, violating or conspiring to violate any of
the provisions of section 2383 of title 18, United
States Code [rebellion or insurrection against the US],
or willfully performing any act in violation of section
2385 of title 18, United States Code [advocating
overthrow of the US government], or violating section
2384 of said title [conspiracy to overthrow the US
government] by engaging in a conspiracy to overthrow,
put down, or to destroy by force the Government of the
United States, or to levy war against them, if and when
he is convicted thereof by a court martial or by a court
of competent jurisdiction.

+ (b) [Deleted] [voluntariness of expatriating actions


performed during an extended stay in a foreign country]

+ (c) Whenever the loss of United States nationality is put in


issue in any action or proceeding commenced on or after the
enactment of this subsection [26 September 1961] under, or by
virtue of, the provisions of this or any other Act, the
burden shall be upon the person or party claiming that such
loss occurred, to establish such claim by a preponderance of
the evidence. Except as otherwise provided in subsection (b),
any person who commits or performs, or who has committed or
performed, any act of expatriation under the provisions of
this or any other Act shall be presumed to have done so
voluntarily, but such presumption may be rebutted upon a
showing, by a preponderance of the evidence, that the act or
acts committed or performed were not done voluntarily.
The primary effect of recent developments in the US regarding dual
citizenship has been to affirm the concept that loss of
citizenship can only result when the person in question intended
that his actions should result in such loss.

* 1986 citizenship law amendments

On 14 November 1986, President Reagan signed Public Law 99-653


(100 Stat. 3655). This bill amended the Immigration and
Nationality Act to conform to the requirements of the Afroyim and
Terrazas decisions of the Supreme Court. The principal changes
made were the following:

1. An action, in order to result in loss of citizenship, had to


have been performed voluntarily and with the intention of
giving up US citizenship.

2. Previously, a person who had been naturalized in the US as a


child, and who then left the US, could lose his US
citizenship if he failed to establish a permanent residence
in the US prior to age 25. This provision was repealed. Note
that this provision did not apply to natural-born US
citizens; see Mandoli v. Acheson.

3. Previously, a person could lose US citizenship through


foreign military service unless said service were approved
in advance by US officials. Also, a US citizen who entered a
foreign military service prior to age 18 would not lose his
US citizenship unless he had been given an option by said
foreign country to leave its army at age 18, and failed to do
so. All this was replaced by subsection (a)(3) as shown
above.

4. A previous subsection (b) was deleted; this said that if a US


citizen were a citizen of a foreign country, had spent one or
more periods of time in that country totalling at least ten
years, and performed any of the listed actions that could
result in loss of US citizenship, the action in question
would be conclusively presumed to have been performed
voluntarily and without duress (i.e., the person in question
would not have a legal right to present contrary evidence in
a court case).

* 1994 citizenship law amendments

On 25 October 1994, President Clinton signed Public Law 103-416


(108 Stat. 4305). This bill made two notable changes to the laws
pertaining to naturalization.

Previously, candidates for US citizenship were required to state


that they intended to reside permanently in the US following
naturalization. This requirement was repealed by Congress.

Additionally, a newly naturalized US citizen who, within one year


following his naturalization, abandoned his US residence and set
up a permanent residence outside the US (whether in his country of
origin, or in any other country) was presumed to have
misrepresented his intentions regarding permanent residence on his
citizenship application (though this presumption could be overcome
by appropriate evidence to the contrary), and on this basis could
have his US citizenship cancelled retroactively. This provision
was also repealed.

* US passport regulations

The Immigration and Nationality Act [8 U.S.C. 1185(b)] states the


following regarding movement to or from the US by citizens:

+ (b) Except as otherwise provided by the President and subject


to such limitations and exceptions as the President may
authorize and prescribe, it shall be unlawful for any citizen
of the United States to depart from or enter, or attempt to
depart from or enter, the United States unless he bears a
valid passport.

Detailed regulations specifying when a US citizen must, or need


not, use a US passport are published in Part 53 of Title 22 of the
Code of Federal Regulations (22 CFR 53). Note that, despite the
title of this section, it evidently applies at all times, not just
during a war or a national emergency.

+ PART 53 - TRAVEL CONTROL OF CITIZENS OF UNITED STATES IN TIME


OF WAR OR NATIONAL EMERGENCY

Sec. 53.1 -- Passport Requirement.

Under section 215(b) of the Immigration and Nationality Act


[8 U.S.C. 1185(b)], it is unlawful except as otherwise
provided for any citizen of the United States to depart from
or enter, or attempt to depart from or enter, the United
States without a valid passport.

Sec. 53.2 -- Exceptions.

A U.S. citizen is not required to bear a valid passport to


enter or depart the United States:

o (a) When traveling directly between parts of the United


States as defined in Sec. 50.1 of this chapter;

o (b) When traveling between the United States and any


country, territory, island adjacent thereto in North,
South, or Central America excluding Cuba; provided, that
this exception is not applicable to any such person when
proceeding to or arriving from a place outside the
United States for which a valid passport is required
under this part if such travel is accomplished within 60
days of departure from the United States via any country
or territory in North, South, or Central America or any
island adjacent thereto;

o (c) When traveling as a bona fide seaman or air crewman


who is the bearer of record of a valid merchant mariner
identification document or air crewman identification
card;

o (d) When traveling as a member of the Armed Forces of


the United States on active duty;

o (e) When he is under 21 years of age and is a member of


the household of an official or employee for a foreign
government or of the United Nations and is in possession
of or included in a foreign passport;

o (f) When he is a child under 12 years of age and is


included in the foreign passport of an alien parent;
however, such child will be required to provide evidence
of his U.S. citizenship when entering the United States;

o (g) When the citizen entering the United States presents


a card of identity and registration issued by a consular
office abroad to facilitate travel to the United States;
or

o (h) When specifically authorized by the Secretary of


State through appropriate official channels to depart
from or enter the United States, as defined in Sec. 50.1
of this chapter. The fee for a waiver of the passport
requirement under this section shall be collected in the
amount prescribed in the Schedule of Fees for Consular
Services (22 CFR 22.1).

Sec. 53.3 -- Attempt of a citizen to enter without a valid


passport.

The appropriate officer at the port of entry shall report to


the Secretary of State for the purpose of invoking the waiver
provisions of Sec. 53.2(h), any citizen of the United States
who attempts to enter the United States contrary to the
provisions of this part.

Sec. 53.4 -- Optional use of a valid passport.

Nothing in this part shall be construed to prevent a citizen


from using a valid passport in a case in which that passport
is not required by this part 53, provided such travel is not
otherwise prohibited.

_____________________________________________________________

Supreme Court decisions on dual citizenship


+ Afroyim v. Rusk, 387 U.S. 253 (1967)

Afroyim was a Polish immigrant to the US, who moved to Israel


and became an Israeli citizen under the Israeli "Law of
Return." When the US State Department refused to renew his
passport (because he had voted in an Israeli election), he
sued; the case went all the way to the Supreme Court, and
Afroyim won.

The basic point of Afroyim v. Rusk was that the 14th


Amendment to the US Constitution -- while originally intended
mainly to guarantee citizenship to freed Negro slaves and
their descendants -- had effectively elevated citizenship to
the status of a constitutionally protected right. Hence,
Congress had no right to pass a law saying that doing
such-and-so would deprive someone of his US citizenship
against his will.

Specifically, US laws mandating automatic loss of citizenship


for voting in a foreign election, working for a foreign
government, serving in a foreign army, or even swearing
allegiance to a foreign country were invalid; said laws must
provide for the possibility that someone could do one of
these things and nevertheless intend to retain his US
citizenship.

The Supreme Court noted that the Civil Rights Act of 1866 had
already tried to confer citizenship on all persons born or
naturalized in the US. However, proponents of the 14th
Amendment had expressed fears that this provision could be
repealed by a later Congress, and so they insisted that the
new amendment contain its own citizenship clause that
Congress could not change later on.

The court also noted that Congress had rejected several


measures in the 19th century that would have imposed
involuntary loss of citizenship in various situations.

Further, the court pointed to a proposed (but never ratified)


constitutional amendment, early in the 19th century, which
would have revoked the US citizenship of anyone who accepted
a foreign title or gift as evidence that Congress was not
believed to have the power to do such a thing via ordinary
legislation. (Incidentally, this is the same proposed
amendment which some foes of the federal income tax allege
was in fact duly ratified, but that news of its ratification
was suppressed by lawyers who feared their "foreign" title of
"Esquire" would result in the loss of their US citizenship
and their positions of power in the government.)

An earlier case -- Perez v. Brownell, 356 U.S. 44 (1958) --


in which the Supreme Court upheld loss of citizenship -- was
explicitly overruled by the court in the Afroyim case.
"Rusk" in this case, by the way, was Dean Rusk, who served as
Secretary of State under President Johnson. The case got
before the Supreme Court in the first place because Afroyim
had appealed a decision against him by the State Department;
hence, the government official named in his suit was the
Secretary of State.

+ Vance v. Terrazas, 444 U.S. 252 (1980)

Terrazas was a dual US/Mexican citizen by birth. When he


became an adult, he signed a document reaffirming his Mexican
citizenship (as required by Mexican law). This document
contained a clause renouncing his US citizenship.

When the State Department ruled Terrazas was no longer a US


citizen, he tried to argue in the courts that he hadn't
really meant to renounce his US citizenship, despite what was
on the Mexican document he had signed. The Supreme Court
disagreed and held Terrazas to the strict wording of the
Mexican document, which it concluded he (being fluent in
Spanish) had understood perfectly well at the time he had
signed it.

The basic point of Vance v. Terrazas was that the State


Department had the right to weigh the evidence for and
against someone's intent to give up his US citizenship, and
to use a "preponderance of evidence" standard (as in a
lawsuit), rather than a "clear and convincing evidence"
standard (similar to a criminal case). The court also held
that a person's actions could be used as evidence of intent
with regard to loss of citizenship, not just his words.

"Vance" in this case was Cyrus Vance, who was Secretary of


State under President Carter. The reason Vance is listed
first in the citation of this case is that the lower court
(Seventh Circuit Court of Appeals) had ruled in Terrazas'
favor, and the government was appealing that ruling. Whenever
a case comes before the US Supreme Court, the first name
listed is always the "petitioner" -- i.e., the party which
lost in the lower court and appealed to the Supreme Court.

The Terrazas case seems to be less important now than it used


to be, by the way, because current State Department
guidelines on handling loss-of-citizenship cases generally
ignore renunciatory statements made as part of a "routine"
acquisition or affirmation of a foreign citizenship. For that
matter, I understand Terrazas himself eventually managed to
get his US citizenship reinstated via an administrative
procedure within the State Department.

+ Mandoli v. Acheson, 344 U.S. 133 (1952)

Mandoli was a dual US/Italian citizen by birth (born in the


US to Italian parents). He left the US as an infant and moved
to Italy with his parents. When he sought to return to the US
in 1937, his claim to US citizenship was rejected because he
had failed to return promptly to the US upon reaching the age
of majority, and also because he had served briefly in the
Italian army in 1931.

The Supreme Court ruled that the law, as it then stood, did
not permit natural-born US citizens to be stripped of US
citizenship for failing to return to the US upon reaching
adulthood.

The court did not base its ruling in this case on any
overriding constitutional arguments. Rather, it examined the
legislative history of the relevant portions of US
citizenship law, and concluded that Congress had consciously
chosen to make these provisions applicable only to
naturalized US citizens.

Dean Acheson was Secretary of State during Truman's second


term.

+ Kawakita v. U.S., 343 U.S. 717 (1952)

This was a case where someone argued (unsuccessfully) that he


was not a US citizen. Kawakita was a dual US/Japanese citizen
(born in the US to Japanese parents). He was in Japan when
World War II broke out, and because of the war, he was unable
to return to the US. During the war, he actively supported
the Japanese cause and abused US prisoners of war who had
been forced to work under him. After the war, he returned to
the US on a US passport, and shortly thereafter he was
charged with treason.

Kawakita claimed that he had lost his US citizenship by


registering in Japan as a Japanese national, and as a result
he could not be found guilty of treason against the US.

However, the Supreme Court ruled that since Kawakita had dual
nationality by birth, when he registered himself as Japanese,
he was simply reaffirming an already existing fact and was
not actually acquiring Japanese citizenship or renouncing his
US citizenship.

The reason the respondent in this case was the United States,
rather than the Secretary of State at the time, is that the
case started as a criminal prosecution rather than as a
lawsuit.

_____________________________________________________________

State Department policies on dual citizenship

+ Information on Dual Nationality (State Department leaflet)


The following is the text of a leaflet printed by the US
Department of State in Washington, D.C., which was sent to me
in November 1994. It summarizes the issues pretty nicely.

Note that the kinds of concerns expressed over dual


citizenship have to do with problems dual citizens might have
in other countries and the difficulties US diplomats may have
trying to help dual US/other citizens abroad. There is no
suggestion that the US has any objections if someone wants to
keep both US citizenship and another citizenship.

INFORMATION ON DUAL NATIONALITY

WHAT IT IS

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


specifically refer to dual nationality.

The automatic acquisition of 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 protections 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 or
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.

+ Advice about Possible Loss of U.S. Citizenship and Dual


Nationality (State Department leaflet)

The following is the text of a leaflet printed by the US


Department of State in Washington, D.C., which was sent to me
in November 1994. It describes the State Department's current
guidelines for handling dual citizenship claims.

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. performs 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 officer or by writing directly
to:

Director, Office of Citizens Consular Services


(CA/OCS/CCS), Room 4811 NS
Department of State
Washington, D.C. 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:

o Europe and Canada Division: (202) 647-3445

o Inter-American Division: (202) 647-3712

o East Asia and Pacific Division: (202) 647-3675

o Near Eastern and South Asia Division: (202) 647-3926

o Africa Division: (202) 647-4994

+ Foreign Military Service (State Department leaflet)

The following is the text of a leaflet printed by the US


Department of State in Washington, D.C., which was sent to me
in November 1994.

FOREIGN MILITARY SERVICE

An American who is a resident or citizen of a foreign country


may be subject to compulsory military service in that
country. Although the United States opposes service by U.S.
citizens in foreign armed forces, there is little that we can
do to prevent it since each sovereign country has the right
to make its own laws on military service and apply them as it
sees fit to its citizens and residents.

Such participation by citizens of our country in the internal


affairs of foreign countries can cause problems in the
conduct of our foreign relations and may involve U.S.
citizens in hostilities against countries with which we are
at peace. For this reason, U.S. citizens facing the
possibility of foreign military service should do what is
legally possible to avoid such service.

Federal statutes long in force prohibit certain aspects of


foreign military service originating within the United
States. The current laws are set forth in Section 958-960 of
Title 18 of the United States Code. In Wiborg v. U.S., 163
U.S. 632 (1985), the Supreme Court endorsed a lower court
ruling that it was not a crime under U.S. law for an
individual to go abroad for the purpose of enlisting in a
foreign army; however, when someone has been recruited or
hired in the United States, a violation may have occurred.
The prosecution of person who have violated 18 U.S.C. 958-960
is the responsibility of the Department of Justice.

Although a person's enlistment in the armed forces of a


foreign country may not constitute a violation of U.S. law,
it could subject him or her to Section 349(a)(3) of the
Immigration and Nationality Act [8 U.S.C. 1481(a)(3)] which
provides for loss of U.S. nationality if an American
voluntarily and with the intention of relinquishing U.S.
citizenship enters or serves in foreign armed forces engaged
in hostilities against the United States or serves in the
armed forces of any foreign country as a commissioned or
non-commissioned officer.

Loss of U.S. nationality was almost immediate consequences


[sic] of foreign military service and the other acts listed
in Section 349(a) until 1967 when the Supreme Court handed
down its decision in Afroyim v. Rusk, 387 U.S. 253. In that
decision, the court declared unconstitutional the provisions
of Section 349(a) which provided for loss of nationality by
voting in a foreign election. In so doing, the Supreme Court
indicated that a U.S. citizen "has a constitutional right to
remain a citizen... unless he voluntarily relinquishes that
citizenship."

Further confirmation of the necessity to establish the


citizen's intent to relinquish nationality before
expatriation will result came in the opinion in Vance v.
Terrazas, 444 U.S. 252 (1980). The Court stated that
"expatriation depends on the will of the citizen rather than
on the will of Congress and its assessment of his conduct."
The Court also indicated that a person's intention to
relinquish U.S. citizenship may be shown by statements or
actions.

Military service in foreign countries usually does not cause


loss of citizenship since an intention to relinquish
citizenship normally is lacking. Service as a high-ranking
officer, particularly in a policy-making position, could be
viewed as indicative of an intention to relinquish U.S.
citizenship.

Pursuant to Section 351(b) of the Immigration and Nationality


Act, a person who served in foreign armed forces while under
the age of eighteen is not considered subject to the
provisions of Section 349(a)(3) if, within six months of
attaining the age of eighteen, he or she asserts a claim to
United States citizenship in the manner prescribed by the
Secretary of State.

_____________________________________________________________

Please send comments to Rich Wales

Subject: LONG: Dual Citizenship FAQ (part 1 of 2) (fwd)


From: Tery Griffin <[log in to unmask]>
Reply-To: CELTIC-L - The Celtic Culture List.
Date: Fri, 3 Mar 1995 10:20:41 -0500
Content-Type: text/plain

Parts/Attachments text/plain (929 lines)


:

Many people have asked for this information, so I'm just forwarding it to
thelist. ---Tery

---------- Forwarded message ----------


Date: Thu, 2 Mar 95 10:29:07 EST
From: Rich Wales <[log in to unmask]>
To: [log in to unmask]
Subject: Dual Citizenship FAQ (part 1 of 2)

DUAL CITIZENSHIP FAQ:


DUAL NATIONALITY AND UNITED STATES LAW

Part 1 of 2: Overview

BY RICH WALES
LAST REVISED: MON FEB 6 17:01:33 EST 1995

_________________________________________________________________

Table of contents

* Introduction

* Obtaining a copy of this document

* About the author

* Disclaimers

* Highlights

* Important recent changes to this FAQ

* Questions and answers on dual US/other citizenship


1. Is dual citizenship possible?
2. Doesn't US law forbid dual citizenship?
3. US citizenship and moving abroad
4. US Constitution and dual citizenship
5. Renunciation in US naturalization oath
6. Special US/Israeli dual citizenship deal?
7. Foreign military service
8. Going back to visit the old country
9. Old citizenship after US naturalization
10. Losing US citizenship
11. Sensible precautions to take
12. Having two passports at once
13. Does the US "recognize" dual citizenship?
14. Children born abroad to US citizens
15. Reinstatement of lost US citizenship
16. Ethics of dual citizenship
17. Are things likely to change?

* United States law on dual citizenship (in Part 2)

* Supreme Court decisions on dual citizenship (in Part 2)

* State Department policies on dual citizenship (in Part 2)

_________________________________________________________________

Introduction

Here is a bunch of information regarding the current situation in


United States law regarding dual citizenship. Although I am not a
lawyer, I have checked this question out quite thoroughly in recent
years and am fairly confident that this material is accurate.
(Hopefully there aren't any typos!)
_________________________________________________________________

Obtaining a copy of this document

Owing to its size, the Dual Citizenship FAQ has been split into two
parts. Part 1 contains an overview of the subject, with answers to
frequently asked questions. Part 2 contains references to laws, court
cases, and administrative policies on dual citizenship.

The latest version of the Dual Citizenship FAQ can be found as


http://www.mks.com/~richw/dualcit.html and
http://www.mks.com/~richw/dualcit2.html on the World Wide Web.

A plain text version can be had as ftp://ftp.mks.com/usr/richw/dualcit


and ftp://ftp.mks.com/usr/richw/dualcit2 via anonymous FTP (i.e., FTP
to ftp.mks.com and get the file named /usr/richw/dualcit). Note that
the plain text version might not be as up to date as the hypertext
version on the World Wide Web.

If you don't have Internet access, you can get a copy of the plain
text version by sending e-mail to me ([log in to unmask]) with "Subject:
send dualcit" in the header (not the body) of your message. Both parts
of the FAQ (plain text form) will be mailed to you.

_________________________________________________________________

About the author

I am a US citizen, born in California in 1952. My wife, baby daughter,


and I moved to Canada in late 1992 as landed immigrants (permanent
resident aliens). We will be eligible to become Canadian citizens in
early 1996; and under current US and Canadian law, we will then have
dual US/Canadian citizenship. Our baby son was born in Canada in 1993
and is a dual citizen by birth, with two passports.

I have been researching the dual citizenship issue in my spare time


since 1986.

_________________________________________________________________

Disclaimers

I am not a lawyer, a professional immigration consultant, or a


government official. Nothing in this document should be considered
"legal advice" in any jurisdiction.

Unless indicated otherwise, any opinions expressed in this document


are mine alone. In particular, this material does not in any way
express the opinions of my employer, Mortice Kern Systems Inc. of
Waterloo, Ontario, Canada.

If you are in a dual citizenship situation, or are contemplating such


a move, you should consider discussing your plans with an attorney who
is knowledgeable in this particular aspect of immigration law. At the
very least, I would encourage you to verify anything you may read here
with authoritative sources.

_________________________________________________________________

Highlights

It is possible to have/acquire/keep dual US/other citizenship as far


as current US law and policy is concerned. Anything different you
might have heard, or thought you knew, about US law is obsolete or
just plain wrong.

Even people who become naturalized US citizens can frequently retain


their old citizenship, despite the part of the US naturalization oath
in which one renounces prior allegiances.

In many cases, people who were stripped of their US citizenship in the


past can have it restored now by contacting the State Department or a
US consulate.

_________________________________________________________________

Important recent changes to this FAQ

The FAQ has been reformatted into HTML (World Wide Web) format. A
plain text version is still available.

The requirement that a new US citizen must maintain his/her permanent


residence in the US for at least one year following naturalization --
along with the requirement that an applicant for US citizenship must
intend to reside permanently in the US -- was repealed by Congress in
October 1994.

Citations and descriptions have been added for some older Supreme
Court cases on dual citizenship.

_________________________________________________________________

Questions and answers on dual US/other citizenship

1. Is it possible to be a dual citizen of the United States of


America and another country?

YES -- in many cases.

If you have been a dual citizen from birth or childhood, or else


became a citizen of another country after already having US
citizenship, and the other country in question does not have any
laws or regulations requiring you to formally renounce your US
citizenship before US consular officials, then current US law
unambiguously assures your right to keep both citizenships for
life.
The US State Department -- traditionally quite combative in its
handling of dual-citizenship claims -- has changed the way it
handles these cases in recent years, and it now appears to be much
easier to retain such a status without a fight than it used to be.

The situation is slightly less clear for someone who becomes a US


citizen via naturalization and still wishes to take advantage of
his old citizenship. People who go through US naturalization are
required to state under oath that they are renouncing their old
citizenship, and conduct inconsistent with this pledge could
theoretically lead to loss of one's US status.

However, it appears that the State Department is no longer


actively pursuing cases of this nature in most situations. In
particular, when a new American's "old country" refuses to
recognize the US naturalization oath (with its renunciatory
clause) as having any effect on its own citizenship laws, and
insists that the person in question must continue to deal with his
old country as a citizen thereof (e.g., by using that country's
passport when travelling there to visit), the US State Department
no longer seems to mind.

Similarly, the State Department doesn't seem to be doing anything


any more to people who renounce their US citizenship as part of a
foreign country's "routine" naturalization procedure (in a manner
similar to what the US makes its new citizens do). However, if the
other country in question requires its newly naturalized citizens
to approach officials of their old countries to revoke their
previous status, one will generally not be able to remain a
citizen both of that country and the US.

2. But I thought US law didn't permit one to be a dual citizen --


that if you were (by birth or otherwise), you either had to give
up the other citizenship when you came of age, or else you'd lose
your US status. And that if you became a citizen of another
country, you'd automatically lose your US citizenship. So what's
all this talk about dual citizenship?

It indeed used to be the case in the US that you couldn't hold


dual citizenship (except in certain cases if you had dual
citizenship from birth, in which case two 1952 Supreme Court
rulings -- Mandoli v. Acheson and Kawakita v. U.S. -- permitted
you to keep both).

However, most of the laws forbidding dual citizenship were struck


down in 1967 by the US Supreme Court. The court's decision in this
case, Afroyim v. Rusk as well as a second case in 1980, Vance v.
Terrazas eventually made its way explicitly into the statute
books in 1986; up till that time, the old laws were still on the
books, but the State Department was effectively under court order
to ignore them.

Rules against dual citizenship still apply to some extent to


people who wish to become US citizens via naturalization. The
Supreme Court chose to leave in place the requirement that new
citizens must renounce their old citizenship during US
naturalization. However, in practice, the State Department is
apparently no longer doing anything about situations where a new
citizen's "old country" refuses to recognize the US renunciation.

The official US State Department policy on dual citizenship today


is that the United States does not favor it as a matter of policy
because of various problems they feel it may cause, but the
existence of dual citizenship is recognized in individual cases.
That is, if you ask them if you ought to become a dual citizen,
they will recommend against doing it; but if you tell them you are
a dual citizen, they'll usually say it's OK.

3. Don't you lose your US citizenship if you move to another country


with the intent of living there for an extended period of time?

No.

I used to think this was a totally off-the-wall question and that


everyone knew the answer -- until I told people I was about to
move to Canada, whereupon probably at least half a dozen of my
friends asked me if this meant I would have to give up my US
citizenship.

It was once the case that a naturalized US citizen could lose his
citizenship by remaining outside the US for an extended period.
However, this provision was invalidated by the Supreme Court in
its 1967 Afroyim ruling and was repealed in 1986.

More recently, a naturalized citizen could lose his citizenship by


setting up a permanent residence abroad within one year following
US naturalization. This provision was repealed by Congress in
October 1994, however, and no longer applies.

4. Doesn't the US Constitution forbid dual citizenship?

No. The Constitution says nothing explicitly about dual


citizenship at all. Indeed, as is mentioned below in conjunction
with the Afroyim case, the Supreme Court used an argument derived
from the 14th Amendment to the Constitution to affirm a right to
dual citizenship.

5. If dual citizenship is legal now, then why do people who want to


become naturalized US citizens still have to take an oath giving
up their old citizenship?

The Afroyim Supreme Court ruling, which paved the way for dual
citizenship after foreign naturalization, dealt specifically with
the 14th Amendment's guarantee of citizenship to people "born or
naturalized in the United States." The court did not prohibit
Congress from establishing prerequisites to naturalization. Hence,
it is still OK for Congress to require prospective new citizens to
be willing to renounce their old citizenships.
Incidentally, this asymmetry may explain why so many immigration
lawyers in the US are seemingly unaware of the laws permitting
dual US/other citizenship. They spend all their time dealing with
people who want to become US citizens or permanent residents --
and since the US requires a renunciation of prior citizenship as
part of the naturalization procedure, these lawyers may
incorrectly assume the law works the same both ways and thus
misadvise someone who is already a US citizen that he can't become
a dual citizen. Be very mindful of this point if you look for a
lawyer to discuss a dual citizenship situation with; if you find
one who insists it's flatly impossible because US law prohibits
it, keep looking.

Also, many other countries do not recognize the act of renouncing


their citizenship as part of US naturalization, so a new US
citizen may very likely still be considered a citizen by his old
country. This is apparently a big reason why the State Department
isn't going after people any more, as a rule, when they continue
to let their old country treat them as a citizen despite US
naturalization.

6. I've heard that the US has a special agreement with Israel


permitting people to be dual US/Israeli citizens. Is this true?

No. It just happens that Israeli citizenship law does not require
renunciation of one's old citizenship in order to become a citizen
of Israel.

In this regard, Israel is really treated no differently than


Canada, the UK, France, or other countries which permit people to
become citizens without giving up their old status.

As best I have been able to determine, the US does not have any
sort of dual-citizenship treaty with any other country. Dual
citizenship arises, not out of explicit bilateral agreements
between nations, but because each country makes its own laws
respecting who is or is not its citizen, often without regard for
whether a given person is considered a citizen by more than one
country at once.

7. But doesn't serving in a foreign army result in automatic loss of


US citizenship?

No. As explained above, essentially nothing causes automatic loss


of US citizenship any more. If you join a foreign army, you can
lose your US citizenship if you acted with the intent of giving it
up. Otherwise, you can still keep it.

Getting back to the US/Israeli citizenship question, the fact that


most dual US/Israeli citizens manage to satisfy their obligation
under Israeli law to serve in the Israeli army (IDF) without
losing their US status is not the result of any special treaty
between the US and Israel.
8. If I become a US citizen and renounce my old citizenship as part
of the naturalization ceremony, can I still run into problems
(such as getting drafted or not being allowed to leave) if I go
back to visit my old country?

Possibly.

Many countries do not recognize the renunciation of old


citizenship which is part of the US naturalization ceremony.
Canada, for example, requires that someone who wants to give up
his citizenship has to go to a Canadian embassy or consulate and
sign a special form in the presence of Canadian officials.

Other countries may require an applicant for renunciation of


citizenship to show he has sold or surrendered all his assets in
the country, has fulfilled his military service obligations, etc.
In some cases, renunciation of one's old citizenship is simply
impossible, because the old country either forbids it altogether
or imposes unreasonable conditions on those wishing to sever their
citizenship ties.

In general, you should assume that your old country does not
acknowledge your US naturalization in any way, and that they still
consider you to be one of their citizens just as before, unless
you have talked to that country's consular officials and
determined otherwise.

So, even after becoming a naturalized US citizen, you should still


check carefully with diplomatic officials both of the US and of
the "old country" before going back for a visit. If you get
arrested there for draft evasion, for voicing opinions about their
government while you were in the US which are considered taboo in
the old country, or for whatever other reason -- or if you find
yourself forced into their armed forces -- you may very well find
that the US can't help you too much, because the other country
will insist you're one of their own citizens and that the matter
is therefore none of the US's $@&%# business. Cuba, for instance,
is notorious for taking this position with expatriate Cubans who
become US citizens and then go back to Cuba for a visit.

This same word of caution may also apply to people who were born
in the US, but whose parents (or even grandparents) came from
somewhere else. Many countries have laws conferring citizenship on
the basis of the citizenship of one's parents or grandparents
(even the US has a limited law of this kind). I personally knew
someone a few years ago who got into trouble in South Korea
because his father was born in Korea; even though my friend was
born in the US and had never claimed or believed himself to be a
Korean citizen, he had to cut short his visit to his ancestral
homeland in order to avoid being drafted into the South Korean
army.

In general, before visiting any country which might possibly have


any reason to claim you as its citizen (due to circumstances of
your birth or naturalization, or that of any of your relatives),
it is a good idea to check both with that country's consular
officials and the US State Department. And don't accept any travel
documents identifying you as a citizen of the other country,
unless it is your true intent to accept such status.

While we're on the subject of getting into legal trouble in


another country, it should probably be noted that even if your old
country no longer considers you one of its citizens, you could
still encounter problems if you left "illegally" and then return.
In such a situation, you obviously should not assume that all will
be forgiven simply because you are no longer a citizen of your old
country. Before making a visit under such circumstances, by all
means check with US State Department officials.

9. I've heard of people who became US citizens via naturalization but


then claim they still have their old citizenship too. How is this
possible?

There are several possible scenarios.

One is that the person's old country may not recognize the
renunciation of citizenship he made as part of US naturalization
(see the previous question). Such a person could be a dual
citizen, as it were, in spite of himself.

Or, the person might have become a US citizen as a child (i.e.,


naturalized along with his parents) -- in which case he would
never have had to take the oath and would not have had to renounce
his old citizenship (even though his parents did). A person in
this kind of situation can exercise his dual status freely,
provided the other country doesn't require him to go to a US
consulate and renounce his US citizenship when he becomes an
adult.

Finally, some people who become US citizens hope to take advantage


of the fact that the US didn't make them actually go to their old
country's consulate and get their citizenship revoked (all they
were required to do was make a renunciatory statement as part of
the US naturalization oath) -- and so they continue to exercise
rights of citizenship in the old country as though nothing had
happened. The US State Department used to take a dim view of such
behavior if they found out about it, and people acting in this way
were known to lose their US citizenship on the grounds that their
pledge to renounce their prior status had evidently not been made
in good faith. Now, though, the State Department seems to be much
less aggressive about pursuing this kind of case.

10. If I am a dual US/other citizen, is there any way I can lose my US


citizenship?

Although current US law forbids the government from taking your


citizenship from you against your will, it does permit you to give
it up voluntarily. This has placed the US State Department in the
complex position of determining whether someone who claims to be a
US citizen has, in fact, given up that citizenship by his
voluntary statements or actions.

In the early days of court-mandated acceptance of dual


citizenship, State Department officials (hostile as most of them
were to the whole idea of dual citizenship) tended to play
hardball with people who claimed dual status, looking for almost
any excuse to revoke US citizenship, and frequently ruling that a
person had voluntarily forsaken his US ties despite steadfast
protestations to the contrary.

Around 1990, though, the State Department adopted a new set of


guidelines for handling dual citizenship cases which are much
more streamlined and liberal than before.

The State Department now says that it will assume that a US


citizen intends to retain his US citizenship if he:

1. is naturalized in a foreign country;

2. takes a routine oath of allegiance to a foreign country; or

3. accepts foreign government employment that is of a


"non-policy-level" nature.

A person in such a situation will eventually be asked to fill out


a State Department questionnaire on the subject (generally the
next time he/she applies for renewal of a passport); but unless
he/she affirmatively intended to give up US citizenship, no action
will be taken to revoke said citizenship.

Apparently, a "routine oath of allegiance" is no longer taken as


firm evidence of intent to give up US citizenship, even if said
oath includes a renunciation of US citizenship. This represents a
dramatic reversal of previous US policy; it used to be that any
such statement was taken rigidly at face value (as in the Supreme
Court's 1980 Terrazas decision).

This presumption that someone intends to keep US citizenship does


not apply to a person who:

1. takes a "policy-level" position in a foreign country;

2. is convicted of treason against the US; or

3. engages in "conduct which is so inconsistent with retention


of U.S. citizenship that it compels a conclusion that [he]
intended to relinquish U.S. citizenship."

The State Department says that cases of these kinds will be


examined carefully to determine the person's intent. They also say
that cases falling under the last criterion mentioned above
(conduct wholly inconsistent with intent to keep US citizenship)
are presumed to be "very rare."

11. So if I'm a dual US/other citizen, I don't need to worry at all


any more about whether something I do or say might come back to
haunt me?

Even though the US government's attitude on this subject seems to


have improved dramatically in recent years, it is probably still a
good idea to keep a few things in mind if you are a dual citizen
or are contemplating becoming one.

One reason for such caution is that the new State Department
guidelines are the result of an administrative policy, not an
act of Congress. In theory, a future administration could revoke
the new policy at any time by the stroke of a pen -- though I am
not aware of any suggestion that this is likely to happen.

Still, I would propose the following safety measures for your


consideration in order to stay as far away from the edge of the
figurative cliff as possible.

+ If you haven't acquired the second citizenship yet,


double-check with officials of the other country to make sure
they are not going to require you to renounce prior
citizenships in general, or your US citizenship in
particular. If they are, then you might not be able to get
away with keeping your US status if the State Department
changes its new policy in the future.

+ The State Department now says that you don't need to inform
them before or right after becoming a citizen of another
country; that they'll presume you intended to keep your US
citizenship; and that, if you tell them later on that you
intended to keep your US status, they will usually take you
at your word.

Still, it might be wise to put your intentions clearly on


record. For example, you might consider making out a written
declaration on the subject; sign it in the presence of two or
three witnesses; have it notarized; and then keep it in your
safe deposit box or other secure place. Should the US
consulate express doubt later on as to your intentions, this
statement can't hurt and might possibly help.

In some cases, it might be advisable to inform the State


Department of your actions and intentions, even though they
say this is not necessary. Many countries routinely notify
the "old countries" of their new citizens regarding their
naturalization. In some cases, your "new country" might even
confiscate your US passport and return it to the State
Department with a note claiming that you have renounced your
US citizenship. In such a situation, you would probably do
well to draft a carefully worded letter to the State
Department -- in consultation with a lawyer -- to make your
true intentions crystal clear.

+ Keep your US passport renewed. When you apply for a new


passport, the proper way to deal with the part of the
application that starts with "I have not, since acquiring
United States citizenship" is to line out whatever part does
not apply to you and attach a letter of explanation. (For
example, line out the part claiming you have not been
naturalized or taken an oath of allegiance to a foreign
country, and include a letter explaining when and where you
in fact did this.) I believe you'll have to do this each and
every time you subsequently renew your passport for the rest
of your life; but at least you only have to do it once every
ten years.

+ Whenever you enter the US, always identify yourself as a US


citizen and always use your US passport -- even if this means
you carry both passports with you when you travel. Don't make
things complicated by going into your dual status with US
immigration officials. If you hold US citizenship, that's all
they need to be concerned about in order to determine that
you have a right to enter the US.

Similarly, when you leave the US, tell the airline (when
checking in for your flight) that you're a US citizen, show
them your US passport first, and show your other passport
only if necessary to prove you don't need a visa for your
trip. If the airline people try to raise a fuss because they
don't think dual citizenship is possible, ask to speak with a
supervisor.

Note that a US citizen is generally required by US law to be


in possession of a US passport when leaving or entering the
US; see Title 22, Section 53 of the Code of Federal
Regulations (22 CFR 53). This requirement does not apply when
entering the US from Canada, Mexico, or Caribbean countries
(other than Cuba); however, even in those cases, proof of
one's identity and one's US citizenship is still required,
and a passport is probably the best such proof.

Failure to produce a US passport (or, where permitted, other


proof of US citizenship) when entering the US can result in a
fine (currently US$100), even if you can provide proof of
foreign citizenship.

+ Always remember to mention your US citizenship on any form


from the other country (e.g., passport application) which
asks if you are a dual citizen.

Back in the early 1980's, there was at least one case in


which a woman with dual US/Canadian citizenship ended up
losing her US status in part because she had applied for a
Canadian passport and answered "no" to a question about being
a citizen of any country other than Canada. (Possibly as a
result of this or similar incidents, Canada has since revised
its passport application form; it now asks if the applicant
is or has ever been a citizen of any other country.)

+ Do other things a US citizen living abroad is expected to do


-- such as filing a US tax return every year (even if the
various exclusions for foreign income and/or foreign tax mean
you don't owe Uncle Sam anything); reporting your address to
the nearest US embassy or consulate; and registering your
children born abroad with the US embassy or consulate (since
in most cases they will automatically have US citizenship
because of you; see below for more info on this).

Again, the above things are not "legal requirements" for retaining
dual citizenship. However, if you do these things conscientiously,
the chances are much less that you'll ever find the State
Department seriously pursuing a loss-of-citizenship proceeding
against you, even if their current liberal policies should change
for the worse in the future.

12. But it's against the law to have more than one passport, isn't it?

Three comments.

+ US law forbids a US citizen to possess two valid, unexpired


US passports at the same time. There is, however, nothing
in US law forbidding a US citizen to possess both a US
passport and a foreign passport -- provided, of course, that
the person really is a citizen of both countries.

+ Now, of course, it is possible that the other country in


question may have objections to multiple passports. This is
especially likely in cases where the other country does not
permit dual citizenship -- and sometimes it could result in
intractable situations, especially when children are involved
(owing in part to the fact that US law makes no specific
provisions for renunciation of US citizenship by children
under 18).

Take India, for example. A child born in the US to citizens


of India is considered an Indian citizen under Indian law;
and in order to enter India, he/she must have an Indian
passport (or be listed in a parent's Indian passport). But
the child in this case would also be considered a US citizen
under US law, and must therefore have a US passport in order
to enter the US.

Indian law, I am told, does not permit dual Indian/other


citizenship and forbids an Indian citizen to possess or use a
passport from any other country but India. Further, in order
to get an Indian passport for a child (or have him/her listed
in a parent's Indian passport), I have been told that the
parent submitting the application must tell India that he/she
is renouncing the child's claim to any other citizenship --
an action which cannot have any effect whatsoever under US
law.

Under current US passport regulations in 22 CFR 53, a dual


US/Indian child under age 12 could legally return to the US
from a visit to India by (1) being listed in a parent's
Indian passport and (2) presenting a US birth certificate or
other proof of US citizenship to US immigration officials.

However, once the child reaches age 12, US and Indian law
would be at an impasse in such a situation: US law demands
that the child must have a US passport, while Indian law
demands that the child must not have a US passport.

The only solution would seem to be for the family to be


prepared to pay the $100 "waiver fee" (i.e., fine) when an
older child returns to the US from India. Even this might not
work -- because without either a US passport or a visa, few
(if any) airlines in India will permit a traveller to board a
US-bound flight -- and if a child was born in the US, US
consular officials will almost certainly refuse to issue him
a visa, on the grounds that he doesn't need one because he is
a US citizen.

+ Even when possession of multiple passports is technically


legal, it should be kept in mind that the border officials of
some countries (perhaps even US officials) may not understand
this fact and might easily conclude that a traveller found to
be carrying more than one passport is "obviously" planning to
engage in some sort of criminal activity.

Hence, it is probably advisable not to travel with more than


one passport at a time if at all possible. Of course, if your
itinerary involves stops in both of your countries of
citizenship, you may not have a choice, since each country
will most likely require you to present one of its own
passports when you enter.

13. I was recently told by a US customs official that the US doesn't


"recognize" dual citizenship. What gives?

US citizenship law is primarily concerned with whether or not a


given person holds US citizenship. If a person is a US citizen and
is currently within the jurisdiction of the US, any other
citizenship(s) he or she may hold are really not relevant in US
law.

A "dual citizen" has no special status in the US by virtue of


holding citizenship in some other country too. In particular, if
you are a dual citizen and get into some kind of legal trouble
while in the US, you should not expect the US to acknowledge any
efforts by consular officials of your other country of citizenship
to intervene in your behalf.
Also, when a "dual citizen" enters the US, he/she is expected to
identify himself to US immigration and customs officials as a US
citizen (not as a citizen of some other country) -- and in cases
where a passport is required to enter the US, a dual citizen is
expected to enter on a US passport, just like any other US citizen
(see above).

I've heard of recent cases where dual US/other citizens briefly


got into sticky situations while entering the US, when they
attempted to identify themselves either as "dual" citizens or as
citizens of some other country. In former times (before the latest
round of State Department policy reforms), attempting to enter the
US on a foreign passport could even be used as "evidence" of
intent to relinquish US citizenship. Although this apparently
isn't a danger any more, the best thing to do is probably to make
life simple and assert only your US citizenship rights when
entering the US.

Remember that US immigration officers are primarily interested in


determining whether a person wishing to enter the US should be let
in. If you hold US citizenship, then you have a legal right to
enter and remain in the US. Holding some other citizenship as well
as US citizenship is completely irrelevant in this case, and if
you make an issue of holding a second citizenship, you're just
making it more likely that US officials will think something is
amiss.

14. My son/daughter was born overseas. Can he/she become a US citizen?

In many/most cases, a child born outside the US to a US citizen or


citizens is a US citizen by birth (and, in the opinions of most
legal scholars, qualifies as a "natural born" citizen eligible to
become President or Vice-President).

So the question is not whether the child can "become" a US


citizen, but rather how the parents can go about documenting the
fact of the child's citizenship.

The rules on US citizenship for children born outside the US


depend on when the child was born, whether one or both parents are
US citizens, and how long each parent lived in the US prior (not
necessarily immediately prior) to the child's birth. Check with a
US consulate for an exact interpretation of the rules with regard
to a specific situation; however, here's a summary of the rules as
they pertain to children born now or in the recent past.

For children born abroad to two US citizens, at least one of the


parents must have "resided" in the US at some time in his or her
life, prior to the child's birth. Judging by what I was told in
early 1994 by the US consulate in Toronto when I applied to have
my son (born here in Canada) registered as a US citizen,
"residence" in the US seems to be defined as physical presence in
the US for a total of at least one year prior to the child's
birth.

For children born abroad since November 1986 to one US citizen and
one non-citizen, the American parent must have been physically
present in the US for a total of at least five years prior to the
birth of the child. Further, at least two years out of this
five-year period must have been after the parent reached age 14
(e.g., no good if you lived in the US from birth till age five,
then left the country never to return). Prior to November 1986,
the minimum requirement was ten years; check with a US embassy or
consulate to be certain regarding your own child's situation. And
again, it is possible to combine multiple separate periods of
physical presence in the US to reach the required figures.

Time spent outside the US in the armed forces or in certain kinds


of government employment (or as the dependent of someone serving
in such a capacity) are treated the same as time spent in the US
for purposes of qualifying to pass along US citizenship to one's
children.

These rules are designed to prevent the proliferation of


generation after generation of "Americans" who would be citizens
by descent without ever having set foot in the US.

An American who has a child born outside the US should contact the
nearest US embassy or consulate as soon as possible, to request an
application for a "consular report of birth abroad." This form
needs to be filled out by both parents and returned with payment
(currently US$10 or the local equivalent, money order or cash
only, personal checks not accepted) and supporting documents
including parents' birth certificates, marriage certificate,
passports, and the child's own birth certificate. For the
supporting documents to be returned, you must enclose sufficient
local postage for registered mail (ask the consulate for the
required amount), or else bring everything in person to the
consulate (in which case they will prepare the certificate while
you wait; expect the process to take about an hour).

Note, once again, that a child born abroad under these


circumstances is a US citizen by birth (in addition to possibly
being a citizen of the country of birth). The "consular report of
birth abroad" is not a bestowal of US citizenship, but simply an
acknowledgment of same.

15. I lost my US citizenship some years ago after I became a citizen


of another country. I told the people at the US consulate that I
intended to remain a dual citizen, but they wouldn't listen. I
think I got a raw deal. Is there any way I can get my US
citizenship back now?

Yes. The State Department info on dual citizenship cases says that
the current guidelines for ascertaining intent to keep US
citizenship are applicable retroactively to past cases, and it
explicitly says that "persons who previously lost US citizenship
may wish to have their cases reconsidered in light of this
policy."

To initiate such reconsideration, contact the nearest US embassy


or consulate, or write the State Department at the following
address:

Director
Office of Citizens Consular Services (CA/OCS/CCS)
Room 4811 NS
Department of State
Washington, DC 20520-4818

If your situation is not straightforward, you may wish to consult


a lawyer before doing this. But if the other country didn't
require you to swear or sign away your US citizenship, and if you
told the State Department you intended to keep it, and if they
revoked your US status anyway, my impression is that all you need
to do is write them and ask them to reconsider.

Given the lax attitude the State Department is taking nowadays


toward renunciatory declarations in foreign naturalization oaths,
you might even be in luck if you can convince them that you would
rather not have made that declaration, but saw no way out of it
because (1) you felt circumstances required you to get a foreign
country's citizenship and (2) taking a renunciatory oath was the
only way you could get it.

A similar line of argument might also work if you asked a US


consulate if dual citizenship was possible, were told it was not,
but decided to go ahead and become a citizen of some other country
anyway because you felt you "needed" to. But in such cases, a
consultation with a lawyer before approaching US officials would
probably be a wise move.

I have personally exchanged e-mail with someone who successfully


regained his US citizenship via this new procedure. He requested
reinstatement in late 1992, and the State Department notified him
that his US status had been restored in early 1994. His US
citizenship had been revoked in the late 1970's after he became a
Canadian citizen.

16. Isn't there something inherently unethical about being a dual


citizen? I mean, how can you be a loyal American and at the same
time owe allegiance to another country? "No man can serve two
masters", and all that.

This is a question of political philosophy, which I won't presume


to argue. The fact remains, though, that the Supreme Court has
ruled dual citizenship is legal -- and Congress has amended the
Immigration and Nationality Act to reflect that reality -- and the
State Department now finally appears to be at peace with the
concept as well -- so it's now a firmly entrenched part of the law
of the land.
17. How likely is it that the Supreme Court will reverse its earlier
decisions and once again ban dual citizenship? Or that the State
Department will backtrack on its recent liberalization of the
guidelines for dual citizenship and loss of citizenship?

Since the Afroyim and Terrazas decisions have now been written
into law by Congress, the Supreme Court is highly unlikely to
reverse its earlier stance. In order for dual citizenship to again
become impossible in the US, it is my personal opinion that the
following steps would have to occur:

+ Congress would have to change the law back (in defiance of


the Afroyim and Terrazas rulings).

+ The State Department would have to start stripping dual


citizens of US citizenship (again in defiance of the Supreme
Court rulings).

+ At least one such case would have to make it all the way to
the Supreme Court (after rulings in lower courts --
presumably in favor of the affected individual, since lower
courts would be bound by the earlier Supreme Court decisions
-- had been appealed by the government).

+ The Supreme Court would then have to decide to toss out its
earlier rulings (particularly in the Afroyim case) and decide
that Congress did have authority to ban dual citizenship
after all.

Don't hold your breath.

While the new State Department guidelines are purely


administrative regulations and could in theory be changed at any
time without any Congressional action, I am not aware of any move
to do this. Further, the fact that the new rules go so far as to
permit review of old cases and restoration of citizenship on the
basis of the new rules strongly suggests to me that no abrupt
reversal is planned. I haven't heard anything that would suggest
the Clinton administration is at all inclined to curb dual
citizenship. There's probably no need to worry.

_________________________________________________________________

Part 2 of this FAQ contains references to laws, court cases, and


administrative policies on dual citizenship.

_________________________________________________________________

Please send comments to Rich Wales