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---------- Forwarded message ---------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 States while prior to his to have been of unknown parentage found in the United under the age of five years, until shown, attaining the age of twenty-one years, not 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: From: Reply-To: Date: Content-Type: Parts/Attachments :
LONG: Dual Citizenship FAQ (part 1 of 2) (fwd) Tery Griffin <[log in to unmask]> CELTIC-L - The Celtic Culture List. Fri, 3 Mar 1995 10:20:41 -0500 text/plain
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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