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QUESTION:
I took out Canadian citizenship in 2003, but retain my US citizen. I was =
told by the U.S. Consulate in Vancouver the only problem would be when I =
went to renew my passport. I'd prefer an American passport; however. =
In addition, with dual status, am I able to vote in both countries?
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david ingram replies:
You may vote in both countries and although I cannot speak for the US =
government, you would be the only person I have heard of in twenty-five =
years who was hassled for being a dual citizen. =20
For the most part, all of that went away in 1980 with:
Vance v. Terrazas, 444 US252 (1980)
The Supreme Court held that to establish loss of citizenship, the US =
Government must prove the person not only voluntarily performed the =
expatriating act but intended to relinquish citizenship. It added that =
the intent may be shown by the person's words or proven conduct.
The following is my October 1993 newsletter on the subject.
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October 1993 Page 1-7
the CEN-TA PEDE=20
david ingram's US/Canadian Newsletter=20
=20
DUAL CITIZENS - CANADA / UNITED STATES OF AMERICA=20
This also applies to a US citizen / landed immigrant in Canada or to a =
Canadian with a US Green Card and maintaining Canadian ties or to a =
Status Indian (not on a reserve) and working in Canada or living in =
Canada while working in the U.S.
=20
Much of the following is "word for word" from a pamphlet called DUAL =
CITIZENSHIP published by Multiculturalism and Citizenship Canada. This =
pamphlet is written from the Canadian perspective. I have added the =
American perspective and my version is far more ominous than the rather =
tame Canadian Version. Other parts are taken "word for word" from =
identified US publications.
=20
[Plain Paragraphs without [square brackets] are from the Canadian =
pamphlet word for word. BOLD FACED Paragraphs inside [square brackets] =
are my interpretation of the problem for US / Canada Dual Citizens. =
Please note that my remarks would be completely different for Australia, =
New Zealand, Great Britain / Canada versions. This is because these =
countries and Canada do not tax their citizens on their world income =
(but still tax income sourced within the country) when they do not live =
in the country unless the citizen maintains close and continuous =
economic ties with their parent country and then the income usually =
needs to be earned active income in the form of wages or business income =
rather than passive investment.]
=20
Italic items inside {Squiggly brackets} refer to items issued by the =
United States Consulate General. These items are available directly =
from: the Consulate General of the United States of America, American =
Citizenship Unit, 1095 West Pender Street, Vancouver, B. C., V6E 2M6, =
(604) 685-4311. The specific US items used in this treatise (in no =
particular order) are: M-321 dated 6-84 and titled PASSPORT SERVICES; =
VAC 103 0001p-34 dated 03/91 and titled INFORMATION ABOUT POSSIBLE LOSS =
OF US CITIZENSHIP; VAC 31 0001p-17 dated 04/91 and titled AMENDMENTS TO =
CITIZENSHIP REGULATIONS.
=20
[I have kept the topic headings and added my own interpretations with =
particular respect as to the special problems that US/Canada dual =
citizens have. Please note that an American does not suffer by acquiring =
Canadian Citizenship as a rule. Canadians on the other hand sometimes =
fall into a tax horror show if they acquire US residency while they =
continue to work in Canada. This is because they only look at the =
difference between the two federal tax rates and do not pay any =
attention to the heavier FICA taxes in the U.S., the gift taxes in the =
U.S., the inheritance taxes in the US or even the heavier user fees in =
the US. The US citizen does not consider it a tax horror show because he =
or she has grown up with that system and sees it as normal].
=20
INFORMATION ABOUT POSSIBLE LOSS OF US CITIZENSHIP
=20
The Department of State is responsible for determining the citizenship =
status of a person located outside the United States.
=20
The United States does not officially favour dual nationality as a =
matter of policy, but does recognize its existence in individual cases.
=20
Under US law, acquisition of citizenship of a foreign country upon one's =
own application after one's 18th birthday is potentially expatriating =
and can result in the loss of US citizenship. However, in order to find =
a loss, court decisions have determined that the action must be both =
voluntary and with the "intent to lose" US citizenship.
=20
The standards used in adjudicating such cases are based on the premise =
that US nationals intend to keep their US nationality when they obtain =
the nationality of another country [Note - this also leaves the US able =
to continue to tax US nationals who take out Canadian Citizenship], when =
they make a pro forma declaration of allegiance to another country or =
when they accept a non-policy level position in another country.
=20
There are no specific steps you can take in advance of naturalization as =
a Canadian citizen to protect your US citizenship and a consular officer =
cannot provide any assurance that you will be able to retain it. =
However, in all cases in which Canadian citizenship was acquired without =
the intent of relinquishing US citizenship, the Department of State has =
determined that an individual may continue to be documented as a US =
citizen. Nevertheless, each case must be adjudicated individually.
=20
It should be noted that it is still possible to lose US citizenship by =
holding a policy level position in a foreign government, by acquiring =
foreign citizenship with the intent of relinquishing US citizenship, or =
by formally renouncing US citizenship before a US consular officer.
=20
If you have become a Canadian citizen and wish to have a determination =
made as to whether you may continue to be documented as a US citizen, =
you should contact this [the Vancouver] office telephonically, or in =
person during the hours of 9:00 a.m. - 1:30 p.m., Monday to Friday, =
except US/Canadian holidays, for further information. VAC 103, 0001p-34 =
03/91.
=20
WHAT IS MEANT BY DUAL CITIZENSHIP? [or dual residency]
=20
Every independent nation makes its own decision as to who its citizens =
are. You possess dual or multiple citizenship when more than one country =
recognizes you as its citizen.
=20
Unlike the "Citizenship Act" in effect in Canada until 1977, the present =
Act allows a Canadian citizen to acquire foreign nationality without =
automatically losing Canadian citizenship. Since February 15, 1977, a =
Canadian citizen may retain Canadian citizenship, unless he or she =
voluntarily applies to renounce it, "and" the application is "approved" =
by a citizenship judge. The present Act thus makes it possible to have =
two or more citizenships and allegiances at the same time for an =
indefinite period.
=20
[The US government also allows one to be a citizen of Canada and the US =
at the same time. This privilege depends upon when you were born and the =
relationship you have to the American who is giving you your claim. At =
one time, like Canada, the US cancelled your US citizenship when you =
took out Canadian citizenship. Then they gave it back retroactively. =
Therefore, many individuals who thought they were no longer citizens of =
the US are now finding that they are still citizens and possibly owe =
back tax to the U.S.]
=20
[At a March, 1992 seminar held at the US Consulate in Vancouver, Mike =
Damasiewicz of the IRS stated that the US could demand tax returns back =
to (are you sitting down?) 1967 from the rediscovered American. However, =
as a practical gesture, if the American was to file his, her or their =
1987, 88, 89, 90 and 91 returns, and send them to:
=20
IRS Attache FAX (613) 230-1376=20
201-60 Queen Street, (613) 238-5335
Ottawa, Ontario, CANADA, K1P 5Y7
=20
The IRS Attache would recommend that the returns be accepted without =
penalty. Unfortunately, that is not without interest. The late returns =
quite regularly have taxes owing, either because of capital gains tax or =
Alternative Minimum Tax. The IRS is NOT waiving interest on the =
outstanding balance. Once the $70,000 earned income exemption is used =
up, the AMT kicks in at limits of $20,000 for a married person filing =
separately, $30,000 for a single person, and $40,000 for a couple. =
Alternative Minimum Tax works out to approximately 10% of the tax which =
would have been owed on the amounts over the limits above; e.g. if the =
income was $25,000 U.S., and the tax would have been $750 on the $5,000 =
but is covered by a foreign tax credit for the tax paid to Canada, the =
AMT would be $75.00 (10% of the $750). Stockbrokers or investors in =
securities are particularly at risk. Two recent cases have involved an =
American Stockbroker who lives in Canada and did not file his US =
returns. The final result: over $150,000 more tax and interest to the US =
than was paid to Canada at our supposedly higher tax rates. The other =
was an American Stockbroker who spent so much time in Canada as a =
visitor and did so much work with the Vancouver Stock Exchange, that =
Canada went back for four years and got over $250,000.]
=20
[The foregoing paragraph applies to an American in Canada. However, if a =
Canadian retains his or her citizenship and moves to the US, in 19 out =
of 20 cases, Canada relinquishes the right to collect income tax on the =
Canadian's world income. But, when an American is living in Canada or =
any other country, the US still demands an annual tax return on the =
Canadian resident/US citizen's WORLD income including tax on the family =
home if sold at a profit (Canada does not usually tax the family home), =
tax on capital gains earned in Canada (including the first $100,000 of =
capital gains which Canada allows tax free) and estate and gift taxes =
which can run up to 55% of the gift or estate.]
=20
{Consequently, you may have the rights and the obligations of a citizen =
of each of those countries. Whenever you are in a country which =
recognizes you as a citizen, that country's laws take priority in =
relation to you over the laws of any other country of which you are a =
citizen. International treaties may, however, allow exceptions to this =
rule.}
=20
[This is definitely not true with regard to Income Tax. US tax law is as =
enforceable in Canada as it is in the States if your dual status comes =
to their attention. Article XXVII of the US / Canada Tax treaty and =
Section 3 of the Tax Convention Act and Section 231.2 of the Canadian =
Income Tax Act require Canada to give information to the US IRS if =
requested (and vice versa of course). Negotiations are ongoing for =
collection procedures allowing the collection of tax by one country from =
a resident of the other country.]
=20
{A person may have several citizenships at the same time. For example, a =
person who was born in a country other than Canada, naturalized in =
Canada and then naturalized in a third country may be a citizen of all =
three countries. Cases of dual citizenship are more common. Although =
this pamphlet deals primarily with dual citizenship, the information in =
it applies equally to persons holding the citizenship of more than two =
countries. The terms "dual" citizenship/nationality" are now used =
interchangeably.}
=20
HOW DOES DUAL CITIZENSHIP OCCUR?
=20
If you, your parents, your grandparents and your spouse, if you are =
married are all born in Canada, and you have not become the citizen of =
any other country, then you most likely possess only one citizenship -- =
Canadian. It is quite possible, however, that one or more of those =
persons were born outside Canada. This might result in your having dual =
citizenship, depending on the laws of both countries concerned. For =
example, if you were born in Canada and one of your parents or your =
spouse was born outside Canada, you might be considered a citizen by =
your parent's or spouse's former homeland, even if you never asked to be =
one. Dual citizenship occurs because citizenship can be obtained in more =
than one way; through country of birth, naturalization, parents, =
grandparents, or in rare cases, marriage. [A recent client was born in =
the US. His mother was born in Germany and was a naturalized Canadian. =
His father was born in England and also a naturalized Canadian. That's =
right, he was an American, Brit, Canadian and German citizen at the same =
time. All the rights AND all the obligations. QUAD-Citizenship!]
=20
Citizenship is a complex matter because of the great variety of =
citizenship laws throughout the world. Some countries allow dual =
citizenship. Some take away the citizenship of a person who acquires =
another citizenship. Some do not recognize that person's new =
citizenship. Some allow a wife to retain her citizenship and acquire =
that of her husband, while others give her the husband's citizenship and =
no longer recognize the citizenship she had before her marriage. Some =
countries give a child the citizenship of the father, or of the mother, =
or of either, or of both, and so on. The laws that apply to your case =
are generally the ones that are in force at the time of the events which =
have an effect on your citizenship (your birth or marriage, or your =
parent's birth or marriage, etc.). This is why determining your present =
citizenship status can be a difficult and lengthy process.
=20
Before the Citizenship Act of February 15, 1977, Canadian law limited =
dual citizenship. It also provided more ways to gain or lose citizenship =
than does our present law. Canadians who became citizens of another =
country before that date should check to see if they are still =
Canadians. Since that date Canadian law, like the law of several other =
countries, has allowed dual citizenship.
[The US Citizenship Act does and did the same thing with the same type =
of arbitrary dates.]
=20
AMENDMENTS TO CITIZENSHIP REGULATIONS
=20
Several significant changes to the US Immigration and Nationality Act =
offering acquisition, retention, and loss of United States citizenship =
were approved under P.L. 99-653 signed by President Reagan on November =
14, 1986. Subsequently, under P.L. 100-525 President Reagan signed the =
Immigration Technical Corrections Act which became law on October 24, =
1988. Some of the changes are prospective in effect, and some are =
retroactive.
=20
ACQUISITION
=20
The period of physical presence in the US required for transmission of =
citizenship to a child born abroad of one US citizen parent and one =
alien parent has been reduced. Specifically, the citizen parent must =
have been in the US for five years, at least two of which were after the =
age of fourteen and prior to the child's birth, in order to transmit =
citizenship. This change applies only to children born on or after =
November 14, 1986.
=20
RETENTION
=20
Persons born in the United states and naturalized in a foreign country =
while a minor (under age 18) are no longer required to establish =
permanent residence in the US prior to age 25 in order to retain their =
US citizenship.
=20
LOSS
=20
The age at which a person is subject to loss of nationality by obtaining =
naturalization in a foreign country on his or her own behalf has been =
changed from age twenty-one to age eighteen, for persons becoming =
naturalized in a foreign state on or after December 24, 1952.
=20
Foreign military service may be potentially expatriating only when such =
service is with foreign armed services engaged in hostilities against =
the U.S., Or when a person serves as a commissioned or non-commissioned =
officer, when such service is on or after November 14, 1986.
=20
Loss of nationality as a result of foreign government employment is =
limited to persons 18 years of age and older. The establishment of a =
permanent residence abroad by a naturalized citizen within one year =
(previously five years) of naturalization shall be considered as prima =
facie grounds for the revocation of citizenship, only when such =
residence is established abroad on or after Nov 14, 1986.
=20
Anyone who considers that one of the above provisions of the law might =
affect his or her citizenship should contact the US Consulate General =
for additional information and advice. VAC 31 0001p-17 04/91}
=20
[Specific information and new details are available from the closest US =
Embassy. In Vancouver that is at:
U S Consulate General, 1095 West Pender, Vancouver, BC, V6E 2M6, (604) =
685-4311 - Fax to (604) 685-5285]
=20
ARE YOU A CITIZEN OF MORE THAN ONE COUNTRY?
=20
[To find out whether you are or might become a dual citizen, you must =
ask the officials of each country that could be involved in your case. =
You will have to provide some information about yourself, such as place =
and date of birth, citizenship of your parents, immigration details, =
etc. You may also have to provide similar information about your =
parents, and possibly your spouse and grandparents.]
=20
If you are in Canada and want to find out if you are a citizen of any =
other country, you should communicate with the embassy or consulate of =
that country. (If it has no representatives in Canada, the Protocol =
Service, Department of External Affairs, Ottawa, K1A 0G2 will direct you =
to its nearest representatives.) If you have questions concerning =
Canadian citizenship, you should communicate with any Court of Canadian =
Citizenship (in Canada) or with any Canadian diplomatic or consular post =
abroad. You may also write to the Registrar of Canadian Citizenship, =
Multiculturalism and Citizenship Canada, Ottawa, K1A 0M5.
=20
DUAL CITIZENSHIP IS AN IMPORTANT ISSUE
=20
Dual citizenship may carry with it certain benefits, but it may involve =
you in unexpected difficulties -- legal proceedings, taxation and =
financial responsibilities, military service, denial of emigration, even =
"imprisonment" for failure to comply with obligations in one of your =
countries of citizenship. Accordingly, you should ask yourself these =
vital questions:
=20
Am I now a dual citizen?
=20
Can I acquire dual citizenship, either by marriage or by naturalization =
in Canada or in another country? Is dual citizenship an advantage or =
disadvantage for me?
=20
[Dual citizenship with the US (if you stay in Canada) is a major tax =
DISADVANTAGE. But, if the US citizenship allows you to keep working or =
gets you a job working on both sides of the border or some other benefit =
of an income nature, it may be worth it. Simply taking out dual =
citizenship so that one of your children can go and live in the US can =
be extremely costly.
=20
If dual citizenship is a disadvantage, what can I do about it?
=20
To CANCEL US citizenship, you have to fill in a 4 page form and give it =
to the embassy OR CONSULATE. Similar rules apply to Canadians wishing to =
cease being Canadians.
=20
It is strange to think that people would give up citizenship in either =
Canada or the US when two thirds or more of the world's population would =
give up their right arm to live in either country. However, those that =
have money want to keep it. Being a dual citizen of these two countries =
can be very taxing. Persons with large earned incomes are usually =
slightly better off in the US during their earning years and much worse =
off with regard to estate taxes. However, this is only true when there =
is a large mortgage in place. If there is not a large mortgage, when =
FICA taxes of 15.3% on the first $53,000 are thrown in and you live in =
one of the 43 states with a state income tax, the day to day tax rates =
in the US are now usually higher than Canada. When medical costs are =
thrown in, particularly for young families with children, it is my =
experience that Canada is far better. To be fair, President Clinton's =
new medical plan may change that position (as of Oct, 93).]
=20
Most Canadians think that the mortgage interest deduction in the US =
would make all the difference in their lives. The Canadian has to =
realize that the American couple gives up a standard deduction of $5,700 =
to claim mortgage interest as a deduction. Therefore, at 8% interest =
rates, you have to have a mortgage of over $60,000 US for interest and =
property taxes to be worth anything by themselves. I understand that 85% =
of residential mortgages in North America are under $50,000. Tenants do =
not get a deduction. Being self-employed in San Francisco with a $87,270 =
income and rent of $1,700 a month will likely cost you $7,000 more in =
total taxes than earning $100,000 in Vancouver and paying $2,000 a month =
in rent. A recent article in the February 12th edition of the Financial =
Post in Canada did the same comparison between Denver, Colorado and =
Calgary, Alberta for a homeowner. The overall tax rate (including =
property tax, sales tax, state and provincial taxes, social security and =
Canada pension plan was (are you ready for this) some $13,000 HIGHER in =
Denver than Calgary.]
=20
DUAL CITIZENSHIP -- ADVANTAGE OR DISADVANTAGE?
=20
Suppose you learn that you (or a member of your family) have dual =
citizenship or might acquire it. Would dual citizenship be good for you? =
Would it have more advantages than disadvantages? For some people, dual =
citizenship offers practical advantages, e.g. in social security or =
employment. It may also enhance their feeling of belonging, because they =
have strong personal ties to more than one country.
=20
However, it is important to realize that there can be hazards and =
disadvantages as well. The following paragraphs suggest some =
consequences of having dual citizenship. In general, the laws that apply =
to you at any time are the laws of the country in which you are =
physically present at that time. The laws of a country may provide, for =
example, that persons residing in the country of their second =
citizenship may travel only on the country of their residence. =
Possession of a second passport could result in its being confiscated, =
or even result in a fine. [This is not true for US / Canada dual =
citizens].
=20
If a Canadian has any legal or other difficulties outside the country, =
Canadian diplomatic and consular officials in that country can try to =
help. However, if the Canadian in difficulty in another country is also =
a citizen of that country, Canadian officials may be entirely unable to =
help. That country will be dealing with one of its own citizens, and =
probably will not welcome "outside interference". Indeed, foreign =
authorities will definitely consider you one of their citizens, =
especially if you choose to travel under their passport. Travelling with =
a Canadian passport and another country's passport simultaneously might =
also lead to difficulties in a third country [for instance between =
Israel and some Arab countries].
=20
There may be laws in a country to which a foreign traveller is not =
subject, but which apply to you as a citizen of that country - for =
example, restrictions on exit, compulsory military service, special =
taxes or financial compensation for past services received, including =
educational costs. There might even be special circumstances relating to =
you in particular - for example, friends or relatives may be affected by =
your visiting that country, or there may be legal proceedings against =
you that could begin again if you return.
=20
You might be affected if countries of which you are a citizen are =
involved in political upheaval or military conflict.
=20
Even while in Canada, you might be approached with demands that you =
fulfill certain obligations to another country of which you are a =
citizen. [The US IRS is becoming very efficient at tracking down US =
citizens living in Canada and demanding the past due returns. If this =
happens to you, the penalties can be extreme. Better to catch up (see =
article from Financial Post on page 8).]=20
=20
These are some of the possible drawbacks to dual or multiple =
citizenship. They might not apply to your case, but it is important to =
realize that serious difficulties can arise.
=20
AVOID THE HAZARDS OF DUAL CITIZENSHIP
=20
Suppose you are, or might become a dual citizen and you feel that this =
could present problems for you, your spouse or children, or others. You =
can do a number of things about it.
=20
BEFORE applying for Canadian citizenship, you are advised to find out if =
you would "retain" your present citizenship, and if this might cause =
problems for you or others.
=20
Next, find out if you can renounce the citizenship that you do not want =
to retain, and whether renouncing that citizenship removes the possible =
hazards. Citizenship cannot be renounced merely by making a personal =
declaration to this effect. You need to apply to the appropriate =
authorities of the country concerned and obtain formal approval.
=20
If you are or will become a citizen of another country and are living =
outside Canada, you may apply to renounce Canadian citizenship through =
any Canadian diplomatic or consular post. Once you are no longer a =
Canadian citizen, however, you cannot travel on a Canadian passport or =
benefit from Canadian assistance outside Canada. Moreover, you cannot =
return to Canada as a permanent resident without going through =
immigration procedures.
=20
Above all, avoid travelling to a country of which you are a citizen if =
it is likely to cause you difficulty. [For instance, most of us know of =
a young American who left the US to come to Canada because of the draft =
and was arrested when going south for a funeral or just a day trip].
=20
CONFIRM YOUR CITIZENSHIP STATUS
=20
Citizenship laws are complicated. Do not assume that what applies to =
your friends and relatives will apply to you as well, even though your =
circumstances may be similar. Be certain about your own citizenship =
status. Seek information from the officials of every country of which =
you may be a citizen. Start with a Court of Canadian Citizenship in =
Canada or a Canadian diplomatic or consular post abroad: advice and =
guidance are free, and Canadian officials will be glad to give you =
information or tell you where it may be obtained. Canadian Government =
pamphlet dated October, 1991
=20
[With respect to the Canadian Government office in Seattle, Washington, =
I once attended at that office with a client when doing some research =
for my BORDER BOOK. I have rarely seen such initial rude treatment in =
any office. Trying to phone ahead for two days had been a futile =
exercise and very expensive while trying to work my way through their =
electronic voice mail system. The anonymous official said "You are here =
on the wrong day - read the sign". I have heard the same statements from =
others about the Seattle office which is definitely understaffed with =
the demands on it. I did receive a courteous interview and obtained my =
information after standing my ground.
=20
On the other hand, two recent trips to the US Consulate in Vancouver =
were handled courteously and quickly (after waiting in a long line). The =
US Consulate staff seemed to be more interested in giving out the =
information and the lineup was three or four times as long. Both places =
are intimidating with locked doors, bulletproof glass and even metal =
detectors to get into the US Consulate inner sanctum. (However, there is =
also a metal detector to get through to the office of one of Canada's =
Chartered banks.)]
=20
=20
[The following 2 pages contain the full text of pamphlet, M-321 issued =
6-84 by the BUREAU OF CONSULAR AFFAIRS, US DEPARTMENT OF STATE, =
WASHINGTON, D.C., 20524]=20
=20
{PASSPORT SERVICES
=20
LOSS OF UNITED STATES CITIZENSHIP
RELINQUISHMENT OF CITIZENSHIP
=20
It is the right of every US citizen to remain a citizen until he or she =
intends to give up citizenship. It is also the right of each US citizen =
to relinquish US citizenship. Thus a person can lose US citizenship only =
if he or she voluntarily performs an expatriating act with the with the =
intent to relinquish. Expatriation is irrevocable and means that the =
person has relinquished all of the rights and duties of a citizen of the =
United states. Since the US Government has an interest in knowing with =
certainty who is a US citizen, it has established by law the procedures =
for determining when a person has relinquished his or her citizenship.
=20
EXPATRIATING ACTS
=20
You cannot lose your citizenship unless you voluntarily perform an =
expatriating act. Expatriating acts are designated by law. The text of =
the statute containing them is reprinted below.
=20
INTENT TO RELINQUISH
=20
If you have voluntarily performed one of the seven expatriating acts, =
the Government must determine whether you did so intending to relinquish =
your US citizenship. This determination is made under guidelines based =
upon Supreme Court cases. The two most important cases are Afroyim vs =
Rusk and Vance vs Terrazas. The essential holding of each of these cases =
is set out below.
The time for the determination of the person's intent with regard to =
retention or relinquishment of citizenship is the time of the =
performance of the designated act. An intent formulated at any time =
before or after the person performs the expatriating act may not be =
directly relevant to the question of relinquishment of citizenship.
=20
STATUTES
IMMIGRATION AND NATIONALITY ACT
(Enacted June 27, 1952, 82nd Congress, 2nd Session; effective December =
24, 1952, as amended.)
=20
LOSS OF NATIONALITY BY NATIVE-BORN OR NATURALIZED CITIZEN
=20
Sec. 349. (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 ---
=20
(1) obtaining naturalization in a foreign state upon his own =
application, upon an application filed in his behalf by a parent, =
guardian, or duly authorized agent, or through the naturalization of a =
parent having legal custody of such person: Provided, that nationality =
shall not be lost by any person under this section as a result of the =
naturalization of a parent or parents while such person is under the age =
of twenty-one [18 years as of October 24, 1988 or November 14, 1986 - =
check details] years, or as the result of the naturalization obtained on =
behalf of a person under twenty-one [18] years of age by a parent, =
guardian or duly authorized agent, unless such person shall fail to =
enter the United States to establish a permanent residence prior to his =
twenty-fifth birthday [abolished November 14, 1986]: And provided =
further, that a person who shall have lost nationality prior to January =
1, 1948, through the naturalization in a foreign state of a parent or =
parents, may, within one year from the effective date of this Act, apply =
for a visa and for admission to the United States as a non quota =
immigrant under the provisions of section 101(a)(27)(E); or
=20
(2) taking an oath or making an affirmation or other formal declaration =
of allegiance to a foreign state or political subdivision thereof; or
=20
(3) entering, or serving in, the armed forces of a foreign state unless, =
prior to such entry or service, such entry or service is specifically =
authorized in writing by the Secretary of State and the Secretary of =
Defense: Provided, That the entry into such service by a person prior to =
the attainment of his eighteenth birthday shall serve to expatriate such =
person only if there exists an option to secure a release from such =
service and such person fails to exercise such option at the attainment =
of his eighteenth birthday; or
=20
(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, 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, for which office, =
post, or employment, an oath, affirmation, or declaration of allegiance =
is required; or
=20
(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
=20
(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
=20
(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, or willfully performing any act in violation of =
section 2385 of title 18, United states code, or violating section 2384 =
of said title 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.=20
=20
Sec. 349 (b) Any person who commits or performs any act specified in =
subsection (a) shall be conclusively presumed to have done so =
voluntarily and without having been subjected to duress of any kind, if =
such person at the time of the act was a national of the state in which =
the act was performed and had been physically present in such state for =
a period or periods totalling ten years or more immediately prior to =
such act.
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(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 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 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 so voluntarily. =
(subsection (c) was added be sec 19 of the Act of Sept 26, 61 (75 Stat =
656).
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RESTRICTIONS ON EXPATRIATION
=20
Sec 351 (a) Except as provided in paragraphs [(6)], [(7)] of section 349 =
(a) of this title, no national of the United States can expatriate =
himself, or be expatriated under this Act while within the United States =
or any of its outlying possessions, but expatriation shall result from =
the performance within the United States or any of its possessions of =
any of the acts or the fulfillment of any of the conditions specified in =
this chapter if and when the national thereafter takes up residence =
outside the United States and its outlying possessions.
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(b) A national who within six months after attaining the age of eighteen =
years asserts his claim to United States nationality, in such manner as =
the Secretary of State shall by regulation prescribe, shall not be =
deemed to have expatriated himself by the commission, prior to his =
eighteenth birthday, of any of the acts specified in paragraphs (2), (4) =
and (5) of sec. 349 (a) of this title.
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REVOCATION OF NATURALIZATION: FOREIGN RESIDENCE
=20
Sec 340 (d). If a person who shall have been naturalized shall, within =
five [now one year] years after such naturalization, return to the =
country of his nativity, or go to any other foreign country, and take =
permanent residence therein, it shall be considered prima facie evidence =
of a lack of intention on the part of such person to reside permanently =
in the United States at the time filing his petition for naturalization, =
and, in the absence of countervailing evidence, it shall be sufficient =
in the proper proceeding to authorize the revocation and setting aside =
of the order admitting such person to citizenship and the cancellation =
of the certificate of naturalization as having being obtained by =
concealment of a material fact or by willful misrepresentation, and such =
revocation and setting aside of the order admitting such person to =
citizenship and such cancelling of certification of naturalization shall =
be effective as of the original date of the order and certificate =
respectively. The diplomatic and consular officers of the United States =
in foreign countries shall from time to time, through the Department of =
State, furnish the Department of Justice with statements of the names of =
those persons within their respective jurisdictions who have been so =
naturalized and who have taken permanent residence in the country of =
their nativity, or in any other foreign country, and such statements, =
duly certified, shall be admissible in evidence in all courts in =
proceedings to revoke and set aside the order admitting to citizenship =
and to cancel the certificate of naturalization.
=20
APPLICATION OF TREATIES; EXCEPTIONS
=20
Sec. 357. Nothing in this title shall be applied in contravention of the =
provisions of any treaty or convention to which the United States is a =
party and which has been ratified by the Senate upon the effective date =
of this title: Provided, however, That no woman who was a national of =
the United States shall be deemed to have lost her nationality solely by =
reason of her marriage to an alien on or after September 22, 1922, or to =
an alien racially ineligible to citizenship on or after March 3, 1931, =
or in the case of a woman who was a United States citizen at birth, =
through residence abroad following such marriage, notwithstanding the =
provisions of any existing treaty or convention.
=20
DEFINITIONS
=20
Sec. 101 (a) of the Immigration and Nationality Act reads in part:
(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.
(23) The term `residence' means the place of general abode of a person =
means his principal, actual dwelling place in fact, without regard to =
intent.
=20
CASES
=20
Afroyim v. Rusk, 387 US253 (1967)
=20
The Supreme Court held that Congress does not have the power under the =
Constitution to take away a citizen's citizenship without his or her =
assent.
=20
Vance v. Terrazas, 444 US252 (1980)
=20
The Supreme Court held that to establish loss of citizenship, the =
Government must prove the person not only voluntarily performed the =
expatriating act but intended to relinquish citizenship. It added that =
the intent may be shown by the person's words or proven conduct.
=20
PRESERVING UNITED STATES CITIZENSHIP
=20
If you have performed or intend to perform an expatriating act, or if =
you have any questions concerning the rights or duties of citizenship, =
the nature of the statutory expatriating acts, or the question of intent =
to relinquish citizenship, you are urged to contact any of the following =
offices:
=20
If abroad, the nearest US Embassy or Consulate;
=20
If in the United States, one of the following divisions of the Office of =
Citizens Consular Services, Department of State,=20
Washington, D.C. 20520:
=20
African Services Division (202) 632-4994=20
Inter-American Services Divisions (202) 632-3712=20
East Asian/Pacific Services Division (202) 632-3675
European Services Division (202) 632-3444=20
Near Eastern & South Asian Services Division (202) 632-6680
=20
Or one of the US Passport Agencies following:
=20
US PASSPORT AGENCIES
=20
Boston Passport Agency Suite E123 John F. Kennedy Building Government =
Center Boston, Massachusetts, 02203
Chicago Suite 380 Kluczynski Federal Building 230 South Dearborn Street =
Chicago, Illinois, 60604
Honolulu Room C-106 New Federal Building 300 Ala Moana Boulevard =
Honolulu, Hawaii, 96850
Houston One Allen Center 500 Dallas Street Houston, Texas, 77002
Los Angeles Suite 13100 Federal Building 11000 Wilshire Boulevard Los =
Angeles, California, 90024
Miami Passport Agency Room 1616 Federal Office Building 51 Southwest =
First Avenue Miami, Florida, 33130
New Orleans Room 400 International Trade Mart 2 Canal Street New =
Orleans, Louisiana, 70130
New York Passport Agency Suite 270, Rockefeller Center 630 Fifth Avenue =
New York, New York, 10111
Philadelphia Room 4426, Federal Office Building 600 Arch Street =
Philadelphia, Pennsylvania, 19106
San Francisco Suite 200 525 Market Street San Francisco, California, =
94105
Seattle Passport Agency Room 992 Federal Building 915 Second Avenue =
Seattle, Washington, 98174
Stamford Passport Agency One Landmark Square Broad and Atlantic Street =
Stamford, Connecticut, 06901
Washington 1425 K Street N.W. Washington, D.C., 20524}
=20
Parts of this are copyrite of either the US or the Canadian Government.
=20
[Opinion and comment text copyright David Ingram. If you have any =
comments, additions, corrections, deletions or other suggestions that =
your own personal experience has shown should be a part of this, please =
communicate those changes to me at the address at the bottom of this =
page.
=20
NOTES
=20
August 31, 1992 - The US Consul in Vancouver has left it up to the IRS =
to comment on any tax matters in this pamphlet and only commented that =
the immigration / dual citizenship is handled on an individual basis.
=20
October 8, 1993 We have not had an official comment from the IRS. =
Various individuals including high ranking officials have thanked me for =
the copy as it has helped them understand the rules.
=20
If you do not wish to receive this, please inform us at your earliest =
convenience. Refunds will be given on a pro-rata basis.]
=20
On the other hand, if YOU have a situation you would like included, I =
welcome all submissions and will give editorial credit.
=20
the CEN-TA GROUP
=20
=20
Copyright =A9 1996-2004 david Ingram
Updated February 23, 2004, All rights Reserved
Cross-border Income Tax Preparation Experts
NAFTA Consultation on Visas, Taxation, Immigration, Cross =
Border, Canada, USA, Mexico
=20
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