LOSS OF U.S. CITIZENSHIP

§ 349 of the Immigration and Nationality Act of 1990,
Pub. L. No. 101-649, __ Stat. ___, 8 U.S.C. § 1460.
8 C.F.R. § 349 (1998).

Presentation © 1999 VIKRAM BADRINATH, P.C. All rights reserved.

Introduction

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.

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 (Presumption) 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, as the result of an individual's inquiry or an individual's application for registration or a passport it comes to the attention of a U.S. consular officer that a U.S. citizen has performed an act made potentially expatriating by Sections 349(a)(1), 349(a)(2), 349(a)(3) or 349(a)(4), the consular officer will simply ask the applicant if there was intent to relinquish U.S. citizenship when performing the act. If the answer is no, 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.

Persons who Wish to Relinquish U.S. Citizenship

If the answer to the question regarding intent to relinquish citizenship is yes, the person concerned will be asked to complete a questionnaire to ascertain his or her intent toward U.S. citizenship. When the questionnaire is completed and the voluntary relinquishment statement is signed by the expatriate, the consular officer will proceed to prepare a certificate of loss of nationality. The certificate will be forwarded to the Department of State for consideration and, if appropriate, approval.

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.

Disposition of Cases When Administrative Premise (Presumption) 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.

Applicability of Administrative Premise (Presumption) to Past Cases

The premise established by the administrative standard of evidence is applicable to cases adjudicated previously. Persons who previously lost U.S. citizenship may wish to have their cases reconsidered in light of this policy.

A person may initiate such a reconsideration by submitting a request to the nearest U.S. consular office or by writing directly to:

Director
Office of American Citizens Services
(CA/OCS/ACS)
Room 4817 NS
Department of State
2201 C Street N.W.
Washington, D.C. 20520

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.

Loss of Nationality & Taxation Issues

P.L. 104-191 contains changes in the taxation of U.S. citizens who renounce or otherwise lose U.S. citizenship. In general, any person who lost U.S. citizenship within 10 years immediately preceding the close of the taxable year, whose principle purpose in losing citizenship was to avoid taxation, will be subject to continued taxation. For the purposes of this statute, persons are presumed to have a principle purpose of avoiding taxation if 1) their average annual net income tax for a five year period before the date of loss of citizenship is greater than $100,000, or 2) their net worth on the date of the loss of U.S. nationality is $500,000 or more (subject to cost of living adjustments). The effective date of the law is retroactive to February 6, 1995. Copies of approved Certificates of Loss of Nationality are provided by the Department of State to the Internal Revenue Service pursuant to P.L. 104-191. Questions regarding United States taxation consequences upon loss of U.S. nationality, should be addressed to the U.S. Internal Revenue Service.

Dual Nationality

Dual nationality can occur as the result of a variety of circumstances. The automatic acquisition or retention of a foreign nationality, acquired, for example, by birth in a foreign country or through an alien parent, does not affect U.S. citizenship. It is prudent, however, to check with authorities of the other country to see if dual nationality is permissible under local law. Dual nationality can also occur when a person is naturalized in a foreign state without intending to relinquish U.S. nationality and is thereafter found not to have lost U.S. citizenship the individual consequently may possess dual nationality. 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 obligation to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts to provide U.S. diplomatic and consular protection to them when they are abroad. For more information about Dual Nationality, click here.

ADDITIONAL INFORMATION

See also information flyers on related subject available via the Department of State, Bureau of Consular Affairs home page on the internet at http://travel.state.gov or via our automated fax service at 202-647-3000. These flyers include:

• Dual Nationality
• Advice About Possible Loss of U.S. Citizenship and Seeking Public Office in a Foreign State
• Advice About Possible Loss of U.S. Citizenship and Foreign Military Service
• Renunciation of United States Citizenship
• Renunciation of U.S. Citizenship by Persons Claiming a Right of Residence in the United States

QUESTIONS

For further information, please contact the appropriate geographic division of the Office of American Citizens Services:

Africa Division at (202) 647-6060;

East Asia and Pacific Division at (202) 647-6769;

Europe Division at (202) 647-6178;

Latin America and the Caribbean Division at (202) 647-5118;

Near East and South Asia Division at (202) 647-7899.

Counsel representing persons in matters related to loss of U.S. nationality may also address inquiries to Director, Office of Policy Review and Inter-Agency Liaison, Overseas Citizens Services, Room 4817 N.S., Department of State, 2201 C Street N.W., Washington, D.C. 20520, 202-647-3666.

American Citizens Services

For more information about the loss of U.S. Citizenship, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.