RENUNCIATION 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. 301.1, 306.2, 322.2 (1998).

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


Introduction

United States citizens have the right to remain citizens until they intend to give up citizenship. It is also the right of every citizen to relinquish United States citizenship. Section 349(a) of the Immigration and Nationality Act [8 U.S.C. 1481] states:

a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality:

(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state, in such form as may be prescribed by the Secretary of State; or

(6) making in the United States a formal written renunciation of nationality in such form as may be prescribed by, and before such officer as may be designated by, the Attorney General, whenever the United States shall be in a state of war and the Attorney General shall approve such renunciation as not contrary to the interests of national defense.

Renunciation is the most unequivocal way in which a person can manifest an intention to relinquish U.S. citizenship. In order for a renunciation under Section 349(a)(5) to be effective, all of the conditions of the statute must be met. In other words, a person wishing to renounce American citizenship must appear in person and sign an oath of renunciation before a U.S. consular or diplomatic officer abroad, generally at an American Embassy or Consulate. Renunciations which are not in the form prescribed by the Secretary of State have no legal effect. Because of the way in which Section 349(a)(5) is written and interpreted, Americans cannot effectively renounce their citizenship by mail, through an agent, or while in the United States.

Section 349(a)(6) provides for renunciation of United States citizenship under certain circumstances in the United States when the United States is in a state of war. Such a state does not currently exist. Questions concerning renunciation of American citizenship under Section 349(a)(6) should be addressed to the Attorney General.

Parents cannot renounce United States citizenship on behalf of their children. Before an oath of renunciation will be administered under Section 349(a)(5), persons under the age of eighteen must convince a U.S. diplomatic or consular officer that they fully understand the nature and consequences of the oath of renunciation and are voluntarily seeking to renounce their citizenship. United States common law establishes an arbitrary limit of age fourteen under which a child's understanding must be established by substantial evidence.

Under Section 351(b) of the Immigration and Nationality Act [8 U.S.C. 1483(b)], a person who renounced U.S. citizenship before the age of eighteen years and "who within six months after attaining the age of eighteen years asserts his claim to United States nationality in such manner as the Secretary of State shall by regulation prescribe, shall not be deemed to have expatriated himself...." The relevant regulation is Section 50.20(b) of Title 22 of the Code of Federal Regulations which requires that the person take an oath of allegiance to the United States before a diplomatic or consular officer in order to retain U.S. citizenship.

Persons who contemplate renunciation of U.S. nationality should be aware that, unless they already possess a foreign nationality or are assured of acquiring another nationality shortly after completing their renunciation, severe hardship to them could result. In the absence of a second nationality, those individuals would become stateless. As stateless persons, they would not be entitled to the protection of any government. They might also find it difficult or impossible to travel as they would probably not be entitled to a passport from any country. Further, a person who has renounced U.S. nationality will be required to apply for a visa to travel to the United States, just as other aliens do. If found ineligible for a visa, a renunciant could be permanently barred from the United States. Renunciation of American citizenship does not necessarily prevent a former citizen's deportation from a foreign country to the United States.

Renunciation of U.S. Citizenship & 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.

Other Obligations

Persons considering renunciation should also be aware that the fact that they have renounced U.S. nationality may have no effect whatsoever on their U.S. military service obligations. Nor will it allow them to escape possible prosecution for crimes which they may have committed in the United States, or repayment of financial obligations previously incurred in the United States. Questions about these matters should be directed to the government agency concerned.

Finally, those contemplating a renunciation of U.S. citizenship should understand that renunciation is irrevocable, except as provided in Section 351 of the Immigration and Nationality Act, and cannot be cancelled or set aside absent successful administrative or judicial appeal.

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 formal Renunciation 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.