Citizenship
AAWE members can access our Citizenship Fact Sheet (see below) for information about citizenship rights for children and grandchildren.
AAWE also disseminates information on the latest US tax developments and reporting requirements including FATCA and banking issues.
AAWE and Citizenship – Key Milestones
Thirty years ago, I sallied on down to the American Consulate with my baby boy to get his US Birth Certificate and US passport. I thought it would be a slam-dunk operation, but there I was standing at the counter with the Consular officer racking my brain to remember the dates of when I had been OUT of the US after the age of 14.
At some point during this inquisition, I learned that I had to have had 5 years of presence in the US after the age of 14 to justify passing on my beloved American citizenship. I had a brief moment of disbelief that I, “As American As Apple Pie”, might not pass the test. But, luckily, no problem. Off I went and did not give it much more thought.
Fast forward to preparations for the 50th Anniversary of AAWE. I began re-reading “The Unknown Ambassadors” by Phyllis Michaux and AARO’s history in the booklet distributed for their 30 year anniversary in 2003. I also located my AAWE/AARO/FAWCO Citizenship Sheets, so carefully and consistently prepared by Michael Adler and Kathleen de Carbuccia. I remembered back thirty years and how oblivious I had been to the groundwork previously laid.
Now I am struck with awe and admiration. We must safeguard the accomplishments and achievements of AAWE and never take our US Citizenship rights for granted especially in light of what we hear on radio talk shows and TV regarding illegal immigrants. Anything is possible in this upended world. As AAWE’s 50th Anniversary approaches, this is an appropriate time to remind and inform AAWE members of how we arrived where we are today.
Michael Adler and Kathleen de Carbuccia who have been the captains of the “Citizen Ship” agreed to write a capsule history of a story that started with the diligence and intelligence of AAWE’s founder, Phyllis Michaux. These four “Milestones” chapters are being published in four editions of AAWE News.
While they are written for you, we would like you to participate as well! Please see the end of the “Milestone One” article for details of how you can participate in this history which, after all, belongs to you, too!
– Carolyn White-Lesieur
Citizenship - Milestone One
Milestone One: Abolishing Conditional Citizenship for Our Children
In 1961, a number of US laws on the books were detrimental to the citizenship rights of Americans who lived abroad. AAWE was founded in large part to work to change these laws.
Not everyone may remember the battles we won, but all of us are the beneficiaries of these successes. As part of the 50th anniversary celebration, the AAWE News will be publishing a series of articles reviewing the milestones of these efforts to improve the citizenship rights of Americans abroad and their families. The first of the “Citizenship Milestones” histories is below.
The Issue
Imagine arriving at the US consulate in Paris to register your new-born daughter (born in France) as an American citizen and being told that she could have US citizenship, BUT it would be revoked if she did not spend five continuous years in the US between her 14th and 28th birthdays?
This was exactly the situation of Phyllis Michaux in 1949. Her reaction was shock, sadness, and alarm. Conditional US citizenship? Who had ever heard of such a thing? Her child would have to move to the United States by her 23rd birthday and remain there for five years to keep her American citizenship. Where would her daughter go in the US? How would the family pay for this? Surely there was something that could be done to change this situation, but what?
Establishing AAWE
The question remained with Phyllis through the years. In early 1961, she met another American woman married to a Frenchman. She realized she was not alone and that a good first step to finding answers was to reach out to others in the same situation. She set about to determine how many other American women in Paris were in dual national marriages. The group soon numbered about a dozen and they were motivated. They devised a survey to locate other “wives of Europeans”, held meetings, and gathered information from each other and from the State Department. By the end of 1961, their number had grown to about fifty women all of whom wanted to solve problems facing Americans abroad. AAWE was born, and eliminating “conditional” citizenship for members’ children was high on the list of priorities.
The Bellei Case
When, in 1969, the case of Bellei v. Rogers arose, the AAWE leapt into action. Aldo Bellei, the plaintiff, was the 29-year-old son of an American mother and an Italian father. Born and brought up in Italy, he had lost his US citizenship because he had not resided in the US for the requisite five years. He brought suit in Federal court seeking to have this requirement declared unconstitutional and his citizenship reinstated.
During the 18 months that ensued until the final Supreme Court decision in 1971, AAWE members moved into action. They raised the funds to file a “friend of the court” brief, wrote letters to Congress, distributed case histories, spoke with US officials; and sought press coverage wherever they could. Time magazine picked up on this activity and published a full-page article on Phyllis’s daughter being at risk of losing her US citizenship and on AAWE’s efforts in supporting the case.
Unfortunately, the Supreme Court ruled against Bellei and the AAWE position, but that loss turned into a win: the experience that AAWE acquired in working on the case was invaluable. It became clear that Congressional action was the key. As Phyllis said in her book, The Unknown Ambassadors, “We really never took the time to be disappointed at the Court’s decision. By the time it was announced, we were so involved in reaching Congress that the unfavorable decision only added fuel to the flames.”
Reaching Out to Congress
That summer of 1971, Phyllis went to Washington to explain the need for easing citizenship restrictions. She visited Congressional offices, the Department of State, and the Immigration and Naturalization Service. AAWE enlisted the services of an attorney to present its views at several Congressional hearings on immigration issues in 1972. AAWE also realized the need to continue providing persuasive evidence of the unfairness of “conditional” citizenship and redoubled its efforts to collect and provide Congress with case histories from Americans abroad—particularly those whose children had no second nationality to fall back upon and would be stateless if their US citizenship were revoked. In those days, for example, Portuguese law prohibited women from passing on Portuguese citizenship to their children. Thus when the wife was Portuguese and the husband was American, their children had only the nationality of their fathers. If the children lost their American citizenship, they became stateless.
The Requirement Reduced but Still There
Thanks to these and similar efforts, P.L. 92-584 was enacted on October 27, 1972: it reduced the residence period requirement from five to two years between ages 14 and 28.
This was a good start, but the burden was still there to send our teenagers and young adults to the US for the required two years. Also other unfair aspects of US citizenship law were still in need of redress.
By 1973, Phyllis and others felt that the time had come to create a second organization that had a broader focus and would address what seemed to her to be an underlying cause for the failure of Congress to hear our problems: a generally unfavorable image of Americans who lived abroad.
The establishment of AARO and continuing progress. The Association of Americans Resident Overseas (AARO) was thus established in 1973. Its goal was to change that unfavorable view and also to bring together the various groups within the larger American overseas communities to work on citizenship rights and other issues as well, such as absentee voting, taxation, and exclusion from Medicare benefits for those abroad who had paid into it.
AAWE and AARO joined forces on the citizenship issue and continued to push for redress. The two groups were becoming quite adept in collaborating with other overseas US groups, organizing letter-writing campaigns, and speaking persuasively before Congressional committees and individual legislators.
AAWE and AARO each set up a Citizenship Committee, and they held a joint conference on American citizenship laws in Paris on January 14, 1977. Seventy people attended and attested to the need for changing several aspects of citizenship law. Thanks to connections and alliances made at this conference—and AAWE’s increasing knowledge of how Congress worked—a bill was introduced in the House and the Senate that year to ease some of the restrictive requirements. Progress was being made.
In January 1978, a second conference on citizenship issues was held in Paris. This time, AARO and AAWE had the active participation of many other overseas groups including the Republican and Democratic Party Committees of Europe, American Citizens Abroad, the Federation of American Women’s Clubs Overseas, and the Federation of International American Clubs. The voices of Americans abroad were getting louder and being heard in Washington.
Repeal of Conditional Citizenship
Finally, on October 10, 1978, Congress responded, and the “conditional” citizenship requirement was eliminated IN ITS ENTIRETY for children born overseas after 1952.
With a stroke of the President’s pen, the “conditional” part of our children’s citizenship simply disappeared. And this is why today (and since 1952) our children are no longer required to live in the US in order to keep their US citizenship.
But let’s imagine for a moment what the situation would have been had this unfair and discriminatory law remained on the books. How many of our children might have lost their US citizenship as young adults?
One glitch. This amendment worked well for children who had not yet reached the deadline (their 26th birthdays) for going to the US. However, it was not made retroactive. Thus, those, who already had missed the deadline and lost their US citizenship before the new law was passed, were not given the possibility of having it restored.
Ironically, Phyllis’s two children were in this group. Despite her having worked so hard for such a long time, her own family did not benefit from the 1978 legislative victory over “conditional” citizenship. Phyllis’s family had to wait quite a few years more before this situation was improved, but that happened several “citizenship Milestones” later and gets us ahead of the story.
- Michael Adler and Kathleen de Carbuccia
Citizenship - Milestone Two
Citizenship Milestone Two: Ensuring that Our Children are US Citizens at Birth
This is the second article in a four-part series on Citizenship Milestones.
In the previous Citizenship Milestone article (“Abolishing Conditional Citizenship for our Children” in the Nov/Dec 2010 issue of the AAWE News), we reviewed how AAWE and other American organizations¬ worked to abolish the US law that required our children to reside in the US for two to five years by age 26 in order to keep the US citizenship they were born with. If a child failed to go to the US as a teen or young adult, his/her US citizenship was revoked. Happily, Americans abroad finally convinced Congress to abolish this requirement; and ever since 1978, child¬ren who are US citizens are no longer required to spend any amount of time in the US in order to retain the citizenship they were born with.
In this article we will take up an equally serious issue: the limitations US law imposed — and to a lesser extent continues to impose — on overseas American parents’ eligibility to transmit US citizenship to their children born overseas
Eligibility to Pass on US Citizenship
Prior to 1986, US law stated that an American married to a non-US citizen was eligible to transmit US citizenship to a child born overseas only if the US parent had spent ten years in the US prior to the birth of the child, and five of those ten years had to have occurred after the American parent reached age 14. The periods of time the parent spent in the US did not have to be continuous; they could be aggregated.
The procedure was usually as follows: The parent went to the local US Consulate to register his/her newborn as a US citizen. The parent was asked to fill out a form that included having to list all of the time he/she spent outside of the US. The parent was not told the implication of this form (ie, that a ten-year physical presence requirement needed to be met). The Consular officer would retreat to another room and count up the time periods listed. If the parent had spent 10 years (120 months) in the US, five years of which (60 months) were after age 14, the Consular officer would register the child, and that would be that. However, if the parent had not been in the US long enough, the child was denied US citizenship at birth.
By the time the parent learned of this requirement, it was too late because the time spent in the US had to have been prior to the birth of the child.
Examples of how this played out.
Teresa lived in the US all of her life. She was 20 when she married her French husband and moved to France. Transmitting US citizenship was no problem for her. Her friend, Martha, however, had spent her childhood and adolescence with her American parents in various capital cities around the world. Martha was born in the US, but that was not enough. Given that she had married a non-American and her children were born abroad, Martha’s children could not be US citizens at birth because she had not spent the requisite “10 years/5 after age 14” in the US prior to their births.
Another example of the problem was the case of the American woman who, during her “Junior Year Abroad,” married a Frenchman and stayed in France. Up to then, she had lived all of her life in the US. She was 18 when she left the US to reside in France, and when her child was born in France two years later, she had more than ten years in the US, but did not meet the “five years after age 14” requirement.
Citizenship Committees continue their focus on Washington
In early 1979, AARO, AAWE, ACA, and FAWCO embarked on a concentrated campaign to change this law. Phyllis Michaux and others went to Washington in that year to meet with the staff of the Select Commission on Immigration and Refugee Policy, key State Department officials, the Acting Commissioner of the Immigration and Naturalization Service, and—very importantly—members of Congress and their legislative staffers.
Our position was that the requirement for the US parent to transmit US citizenship to children born abroad should be reduced to two years of US residence in the aggregate.
Senator Edward Kennedy introduced a bill with just such an amendment, but it languished in the Senate Judiciary Committee. The Special Commission also recommended such an amendment in its final report issued in 1981, but this recommendation was never acted upon. From 1979 until 1986, the Citizenship Committees of AARO and AAWE, and our counterparts in ACA and FAWCO and other overseas groups, did everything we could think of to make our case for reform.
We launched letter-writing campaigns. We prepared position papers and presented case histories of children of Americans who were harmed by the requirement. We developed effective working relationships with members of the Administration. We also met and communicated with the members of the staff of the Congressional Committees and Sub-committees that had jurisdiction over this legislation.
The Good News and the Bad News
Persistence paid off … somewhat. After six years of our efforts, in 1986, the Department of State put forth its legislative proposals and included an amendment reducing the transmission requirements. These were incorporated in the Citizenship Reform Act of 1986. The good news was that the residency requirement for transmission of US citizenship was reduced from ten years/five after age 14 to five years/two after age 14. The bad news was that Americans abroad still had a significant hurdle to overcome to transmit their US citizenship to their children.
From 1986 to 1994, overseas groups from all over Europe worked vigorously to have this requirement reduced to a simple two years in the aggregate. But despite all our efforts—including official testimony at hearings in 1992 and 1993 before the House Subcommittee on International Law, Immigration, and Refugees of the House Judiciary Committee—Congress resisted further changes.
And thus this provision remains the law to this day: a US parent married to a non-American who has a child born overseas must, prior to the birth of the child abroad, have spent five years (60 months) in the aggregate in the US with two of those years (24 months) occurring after age 14 to transmit US citizenship.
Making the best of this situation.
As the saying goes: Being forewarned is being forearmed. At least we now know that this transmission requirement exists.
American parents who were unable to transmit US citizenship to their children should be aware that other options exist for having children obtain US citizenship if they are under 18 years old. Those options are the subject of a future article in this series.
The importance of documentation.
Parents who fulfilled the US residency requirements should note that they still apply in the case of potential grandchildren. The question then becomes: how can you safeguard the US citizenship of a potential grandchild in the event that your American child, at some later point in his/her life, decides to marry a non-American and has a child born abroad? The answer is document, document, document. The case history and discussion below are based on a March 1997 article that appeared in the AAWE News on this question. The article is as relevant now as it was then.
Case History
Valerie, an AAWE member, was born in Boston and lived in the US until she was 22 years old. In 1977 she married André, a French citizen, and moved to Paris where she has resided ever since. Her daughter, Judith, was born in 1980 in Paris and was registered as a US citizen at the Paris Consulate with no problem. Valerie had more than satisfied the US physical presence rule. Judith, a Franco-American citizen, grew up in Paris with her parents. She spent a number of Christmas and summer vacations in the US visiting family, went to summer camp, and attended a US university. In 2005, Judith married a French citizen, and the couple resides in France. They have just had their first child, Sam, Valerie’s first grandchild.
Is this grandchild a US Citizen at birth?
He is, (1) if before Sam was born, Judith had spent a total of 60 months in the US with 24 of those months occurring after Judith was 14 years old and (2) if she can convincingly demonstrate this fact to the US Consular Officer. It should be noted here that it does not matter whether or not Judith was born in the US. What brings the requirement into play is that she is a US citizen, married to a non-US citizen and the child is born abroad.
Because Judith has resided outside of the US for most of her life, her application to register Sam will probably be carefully scrutinized. The five-year requirement is objective, and without objective evidence, how can the Consular officer be reasonably certain that Judith actually spent 60 months in the US? Providing documents and other kinds of tangible evidence showing when she was actually present in the US greatly strengthens Judith’s verbal assertions.
Documents that could be helpful.
There is no set rule about the documents needed, but Judith and her mother would have done well to have kept any of the following as Judith was growing up: Judith’s US passports (with entry stamps), her airline tickets to and from the US. (Since US authorities give no exit stamps, it is important to keep airline tickets and boarding passes that corroborate the exits corresponding to the stamped entries.) Other possibly helpful items might include letters from summer camp, school records, work records (including summer jobs), copies of tax forms, old diaries and agendas covering the time-frames in question, college transcripts.
Consular officers don’t require written proof of every day the parent was in the US, but they do need enough documentation to give them good reason to conclude that the parent was there. For example, if the parent was enrolled in a US university, Consular officers will not count that as a full 12-months of physical presence, but they probably will if it can be shown that the parent remained in the US for the summer and Christmas vacation, i.e., that the parent actually spent the time claimed. Consular officers also look for false documentation. The US-citizen daughter of an AAWE member we know of had proof from an employer that she worked a summer in New York. On seeing this document, the Consular officer followed up with several questions about the job and what it entailed.
The moral of the story.
Future AAWE grandmothers should be aware of the need to collect documents and other evidence of their children’s time spent in the US as they are growing up. One might simply keep such papers unsorted in a shoebox or the like, just in case. If the occasion arises in which these documents are needed, that will be one box of souvenirs one won’t regret having kept.
Watch this spot for future articles. The next one will take up the question of alternate ways for children of Americans abroad—including children adopted abroad—to obtain US citizenship.
-Michael Adler and Kathleen de Carbuccia
Citizenship - Milestone Three
Citizenship Milestone Three – Citizenship for Children Not US Citizens at Birth
This is the third article in a four-part series on AAWE Citizenship Milestones.
In previous articles, we reviewed how AAWE and other American organizations:
1) in 1978, abolished conditional citizenship for our children born abroad prior to 1952, and
2) in 1986, modified the requirements for transmission of US citizenship to children born overseas to one American parent, so that now five years of prior US residence is required, of which two years must be after reaching age 14 (rather than 10 years total, five after the age of 14 as previously required).
But what about the children born to American parents who had not lived in the US long enough, or at the right ages, to transmit citizenship to their children born abroad? The 1986 law was a big improvement, but a number of AAWE members’ children were already without US citizenship because of the old law, and not everyone could comply even with the 5-year requirement. In addition, children adopted abroad by US citizens residing overseas could not acquire US citizenship at all unless they immigrated with their parents to the US.
This article will discuss the options we have now for such children.
Lobbying Congress: Help and Hindrances
From 1986 to 1994, AAWE participated actively in the lobbying effort, first to reduce the residence requirement further, which Congress resisted as reported in Citizenship Milestone Two, and then to find another way for these children of Americans abroad to become US citizens.
By 1987, we had found a new friend in Congress, Bill Alexander from Arkansas. A long-time friend of American Citizens Abroad president Andy Sundberg, Congressman Alexander was interested in developing foreign trade by making it easier for Americans to live and work abroad. He introduced a bill to reduce the residency requirement mentioned above and to automatically grant US citizenship to any child born abroad of a US citizen parent if that child would otherwise be born stateless. He continued to reintroduce this legislation until 1992. While we had the support of the State Department that the issue of statelessness needed to be addressed, Congress was unwilling to further ease restrictions and seemed generally indifferent to the problems of Americans abroad.
Then, even without Facebook, we found another friend, Congressman Mervyn M. Dymally from California, chair of the House Foreign Affairs Subcommittee on International Operations. He was originally interested in the security of US diplomats, but became sympathetic to our issues too. He held hearings in 1989 on the range of federal laws that work against Americans living abroad, including citizenship, taxation, and voting issues. AARO, FAWCO, ACA, Democrats Abroad, Republicans Abroad and the European Chambers of Commerce testified. Michael Adler, testifying for AARO, submitted a statement for the record from AAWE outlining the needed changes in citizenship law and policy.
World Conference of US Citizens Abroad
After that hearing, Congressman Dymally brought a bipartisan task force to Paris to hear more testimony, which led to the first World Conference of US Citizens Abroad, held at the American Hospital in 1990 and organized by the same associations. Ten members of Congress attended. The federal agencies most concerned with overseas Americans were represented and over 200 people attended from all over the world. It was a very useful gathering, a kind of town hall meeting on the problems of Americans abroad.
Several AAWE witnesses testified about their children’s citizenship problems¬. They included the parents of adopted children and an American mother married to a European whose assignment abroad by her US employer prevented her from satisfying the 10-year residency requirement. As a result, her older child was not American but her younger child, born after the 1986 law, was. Speaking of children born overseas to Americans, she told the Congressmen: “No country in this day and age can afford to dismiss such a mine of inter¬national goodwill”.
The World Conference did not result in citizenship legislation, but it gave our issues impetus and visibility. It was the catalyst for changes in the State Depart¬ment’s interpretation of the loss of nationality rules so that, henceforth, applying for a foreign nationality did not automatically mean that the applicant intended to renounce her/his American nationality. There will be more on that topic in the next article.
Expeditious Naturalization
By 1992 it was clear that transmission reform would not happen and that we needed to find a way for the non-US citizen children who wanted US citizen¬ship to be naturalized. We worked with Congressman Romano Mazzoli, chairman of the House Subcommittee on International Law, Immigration and Refugees, and his staff on expeditious naturalization procedures that would:
1) be feasible for Americans abroad to follow, and
2) satisfy the insistence of Congress that the children have a strong link with the US.
The resulting bill included a procedure available to children under 18, including adopted children, having an American parent or grandparent who had resided for at least five years (two after age 14) in the US. The process was entirely under the jurisdiction of the Immigration and Naturalization Service (which, in 2002, was merged into the Department of Homeland Security which now has responsibility for administering it). The process begins with an application filed from abroad and sent to a Homeland Security district office chosen by the parent. (These are located throughout the 50 states.) When the application is approved, the child and the parent make an appointment at the district office where there is a short interview and, if the child is old enough to understand, he or she takes an oath of renunciation and allegiance and is granted a Certificate of Citizenship.
The bill passed the House but was not enacted into law and was re-introduced in 1993, when Michael Adler testified again at subcommittee hearings. The bill finally passed the House and Senate and became law in October 1994.
We had a solution, but it was less than perfect. Considerable documentation had to be filed in the US; communication was difficult; many district offices had not even heard of the law at the time of enactment; some lost the file or simply delayed so long that a few children reached age 18 and could no longer qualify.
As time went by, however, Homeland Security became more familiar with the procedure, and currently it appears to be working reasonably well – although a bit cumbersome. It requires a measure of determination. Still, quite a few AAWE grandmothers now have American grandchildren through this pathway. We would like to think that they feel it was worth the effort.
“Automatic” Citizenship: The Child Citizenship Act of 2000
In 2000 a new law was passed to grant immediate naturalization to a minor¬ child upon lawful admission as an immigrant to the US. It was intended to provide an easy and immediate road to citizenship for children adopted from abroad by Americans residing in the US, but, as a matter of equal application of the law, it covers biological children as well.
An application for an immigrant visa is made at a US consulate abroad. (It should be noted that some consulates outside of France prefer that Americans abroad use the expeditious naturalization procedure.) When the immigration visa is ready, the child travels to the US and becomes a naturalized US citizen upon arrival on US soil — i.e., when going through immigration at the point of entry. In many respects, this is a simpler way to obtain US citizenship for children under 18 because communication is easier with one’s local consulate than with a Homeland Security official in the US and no appointment at a district office needs to be scheduled in the US.
If you are contemplating either of these alternatives for your children or grandchildren, please feel free to contact Kathleen de Carbuccia for more information.
-Kathleen de Carbuccia and Michael Adler
Citizenship - Milestone Four
Citizenship Milestone Four – Safeguarding US Citizenship When One Takes on a Foreign Nationality
What would you do if you wanted to pursue a profession in France (such as teaching) that required you to become French, but you knew that obtaining a foreign nationality was almost sure to result in your US citizenship being revoked?
For the American women who came together in 1961 to form AAWE, this was not a theoretical question. Not only were there problems surrounding their children’s US citizenship, as we have seen in previous articles, but these AAWE members were all too aware that there were certain “wrong” acts that could result in their losing their own US citizenship. Fear of this loomed over their heads like a dark cloud, and as it turned out, this cloud remained there for over three decades.
Expatriating Acts
Prior to the 1950s, section 349 of the Immigration and Nationality Act (INA) listed the specific acts that were expatriating. It stated that a US citizen “shall lose his (sic) nationality by voluntarily performing any of the following acts:”. The first act on that list was “obtaining naturalization in a foreign state upon his (sic) own application.” There were other expatriating acts listed such as taking an oath of allegiance to a foreign state or serving in a foreign military service; however, the main act leading to loss of US citizenship for AAWE and AARO members was applying for and becoming a naturalized citizen of a foreign country.
The State Department’s literal interpretation.
The State Department viewed the word “voluntary” as meaning “of one’s own volition and choice” (as opposed to involuntary, such as if a gun was held to one’s head). The words “upon his own application” were interpreted to mean taking any action whatsoever, such as filling out a form. The working assumption was that applying for and accepting a foreign nationality was proof that the person no longer intended to be a US citizen.
Needing foreign nationality in order to work: between a rock and a hard place.
Of course, the truth was that the vast majority of Americans faced with this situation absolutely wanted to retain their US citizenship. For them, taking on a foreign nationality was only an interim step for them to be able to pursue their professions.
In France, many jobs at that time required that applicants be French citizens. Such jobs included working for the CNRS, working for the French government at certain levels, teaching in certain positions in the French public schools, practicing dentistry, or getting admitted to the French bar.
The AAWE and AARO Citizenship Committees spent many hours talking to distraught fellow Americans who faced this dilemma. We strategized about how to get around it with other organizations of Americans abroad. We worked hard in the 1970s and 1980s to persuade the State Department to soften their stance, and we spent many hours consoling those who had had their US citizenship taken away.
The State Department’s insidious procedure.
If its interpretation of the law was harsh, the State Department’s process for determining Section 349 cases was secretive and mean—at least it felt that way to the person who was in danger of losing his or her citizenship.
First, the local consular official would not give any advance rulings so there was no way to determine the outcome prior to actually obtaining the foreign nationality. Once a person did obtain the nationality, a report was prepared by the local consulate on that specific case and sent to Washington, DC, for determination.
Second, State Department personnel—not a court of law, not a jury of peers, but unnamed federal employees in Washington, DC—would look over all the documents and “facts” of a case and make a determination about the voluntariness of the act. From there, the reviewers would draw conclusions about the intention of the person. Even when the person wrote a letter attesting that he or she did not want to lose his or her US citizenship, such a document held little weight. As noted above, the Department’s view was that performing the act of becoming a foreign citizen was proof, in and of itself, that the person intended to give up US citizenship.
Further, if the State Department ultimately decided to revoke the US citizenship (which it did in many, if not most, cases in those days), it was then too late to undo the damage.
Vance v Terrazas (1980) — Supreme Court to the rescue.
This case was the turning point. Mr Terrazas had had his US citizenship revoked under Section 349, and he challenged the law and the way it was being carried out. The Court held that the government could not designate a particular action as automatically resulting in loss of citizenship, even if such an action were voluntarily performed. The court was clear that voluntariness in a Section 349 case was not proof of the person’s intent. Intent had to be proven separately. And the State Department had the burden of proving that the person actually wanted to lose US citizenship by performing the proscribed act.
This was the outcome we had been hoping for! It provided the Constitutional protection that had been so lacking in previous Section 349 cases. The bottom line was this: An American’s US citizenship could not be taken away against his or her will.
Some improvement between 1980 and 1986, but not enough.
The Terrazas decision was a tremendously important leap forward. The State Department incorporated the holding of Terrazas in its review procedure, and far fewer people lost their US citizenship under Section 349 after 1980. But doubts still remained, mainly because the Department did not outwardly change its modus operandi.
Cases were still handled individually and somewhat mysteriously; decisions were still made in Washington, DC, by federal employees; and the Department of State also continued to refuse to give advance rulings or advisory opinions prior to a person’s formally obtaining a foreign nationality.
The advice the AAWE and AARO Citizenship committees gave to people regarding Section 349 was to document everything they could about their intention to retain US citizenship and to repeat this intention in writing at each step of the way toward their obtaining foreign nationality. This approach was quite successful, but it still required the American to put his or her citizenship up for grabs—even if the risk of loss was small. This was nerve-wracking and stressful. We needed a better approach to Section 349 cases. The question was how to get it.
Congress to the rescue.
By 1986 Congress was considering various amendments to the Immigration and Nationality Act. (These included a provision that AARO, AAWE, ACA and FAWCO had worked long and hard to bring about: the reduction of the US residency requirements for American parents married to non-Americans to be able to transmit US citizenship to their children born abroad (See Citizenship Milestone Two.)
At this time, we realized it would be advantageous to have an amendment to the law that explicitly reflected the Terrazas decision. We raised the issue with Congressional staff members, and they agreed that bringing Section 349 into line with the Supreme Court mandates was a good idea. This proposal was added to the bill containing other amendments to the INA. The bill was enacted as the Citizenship Reform Act of 1986. And we rejoiced.
Since 1986, the amended text of Section 349 now reads: [a US citizen] “shall lose his nationality by voluntarily performing any of the following acts with the intention of relinquishing United States nationality.” Those eight additional words took away much of the lingering mystery and risk that the State Department procedure engendered.
Finally, in 1990, the State Department officially announced a 180-degree reversal of its policy on Section 349.
Among other things, the changes dictated by Terrazas and codified in the 1986 amendment apparently made Section 349 cases more complex, more time-consuming, and more difficult for the State Department to pursue. And so the Department changed its course on these cases.
It announced that it would no longer presume a person intended to relinquish US citizenship by performing one of the acts listed in Section 349. In fact, the Department would henceforth assume the individual intended to retain US citizenship. (Today the State Department pursues loss-of-citizenship proceedings only when an individual affirmatively states that he or she intends to relinquish US citizenship.)
The Department further announced that persons who had lost US citizenship prior to 1990 could, if they wished, have their cases reopened and re-adjudicated under the new policy.
And so it came to pass in 1990 that whatever vestiges remained of that dark cloud that hovered above our heads since the 1960s simply evaporated. The threat of losing one’s US citizenship against one’s will was gone.
Citizenship - A Final Footnote
A final footnote to this story.
The first Citizenship Milestone in this series of articles was on abolishing conditional citizenship for our children. One of the major reasons for founding AAWE was to repeal the US law that required our children born abroad to spend five continuous years in the US before they reached age 28 or lose their citizenship. It took seventeen years of effort by AAWE, AARO (and other concerned groups and individuals—particularly Andrew Sundberg) to convince Congress to abolish this law in 1978. While this success solved the problem for children who were born abroad after 1952, the amendment was not retroactive and did not restore US citizenship to those born before 1952 who had already lost their citizenship at the time of the law’s passage. One of the ironies of the situation was that Phyllis Michaux’s two children were in this later group.
It bothered us that Phyllis’ children and the children of certain other AAWE members did not benefit from the 1978 law that the club fought so hard to achieve.
Thus, as we close this series of Citizenship Milestones, we are happy to highlight one piece of citizenship legislation not previously mentioned: Obtaining a remedy for those children.
The AAWE and AARO Citizenship Committees proposed a separate amendment that was included in the 1994 citizenship law. It allowed those born prior to 1952 who had lost their citizenship as teenagers and young adults to be reinstated as American citizens through a simple swearing-in process before a consular officer.
In May 1995, Phyllis Michaux’s two adult children were sworn in as US citizens. Once they “(re)became” American, their children became eligible to be naturalized under the Expeditious Naturalization procedure and did so. Today, Phyllis’ children and several of her grandchildren are US citizens.
This final footnote to the story represents AAWE’s coming full circle in its citizenship work—at least in its first 50 years. We are gratified to look back and see that so many issues were resolved, or at least improved upon.
The need to carry on this work and to be vigilant goes on, particularly as Congress continues to consider major changes in immigration and citizenship law. Whatever issues await us in the future, we feel sure, that AAWE—true to form—will rise with determination and grace to meet the challenges ahead.
– Kathleen de Carbuccia and Michael Adler
Citizenship Fact Sheet
INTRODUCTION
Each country has its own rules for determining citizenship. There is no such thing, for example, as a global “right” to dual citizenship nor does there exist “out there” a general prohibition against voting in more than one country. Such rights and prohibitions as well as how citizenship is acquired, retained and lost are all matters which each individual country determines for itself. Because citizenship law is, thus, so very country-specific, when we talk about it we must focus on the particular laws of a particular country and how these would apply in a given case.
This chapter addresses itself to the citizenship laws of the United States of America. It takes up the major U.S. citizenship rules in effect today which are relevant to American families who reside abroad, but it is necessarily an overview of the laws and may not cover, or provide sufficient detail for, the situation of certain individuals.
All of the laws discussed below are contained in the Immigration and Nationality Act (the INA), which is several hundreds of pages long and which is broken down into numerous provisions or “Sections.” The main Sections are noted by number in parentheses in the text which follows. For information on all citizenship matters the U.S. Embassy web site is www.france.usembassy.gov. In particular, it is wise to inquire about fees for passports and immigrant visas and related expenses in advance as they are significant.
Revised September 2008 © 2001, 2008 Michael Adler. This document was prepared by Michael Adler and Kathleen de Carbuccia for the Citizenship Committees of AARO and AAWE (34 avenue de New York, 75116 Paris) and for FAWCO. It is prohibited to reproduce this document in any medium, including electronic, in whole or in part except by written permission by the authors. All rights reserved.
Dual Citizenship
DUAL CITIZENSHIP
While the United States does not as a matter of policy officially favor the concept of dual nationality for Americans, it does accept its existence in individual cases. In addition to instances of voluntary naturalization accepted by the Department of State as non-expatriating (see “Current Policy Regarding Loss of Citizenship” below), dual nationality also exists when it results from the automatic operation of the laws of other countries. Two examples would be:
(1) the child who is a citizen of the U.S. and another country at birth due to the operation of the laws of each country;
(2) the U.S. citizen who marries a national of another country and, under the laws of that country, thereby automatically becomes a citizen without having to take any other action whatsoever.
You don’t need to choose.
As far as U.S. law is concerned, an American who is also a citizen of another country does not need to choose one nationality or the other—at any age.A dual national U.S. citizen must always use his/her American passport when entering and leaving the U.S. (Section 215).
CITIZENSHIP AT BIRTH FOR A CHILD BORN ABROAD TO AN AMERICAN PARENT MARRIED TO A NON-AMERICAN (Section 301(g))
CITIZENSHIP AT BIRTH FOR A CHILD BORN ABROAD TO AN AMERICAN PARENT MARRIED TO A NON-AMERICAN (Section 301(g))
For the child born abroad after November 14, 1986: A U.S. parent married to a non-American is eligible to transmit U.S. citizenship to his/her child born abroad only if such American parent had spent five years in the U.S. prior to the child’s birth, and two of those five years must have been after the parent was 14 years old. (This is the “5 year/2 year” requirement for transmission.)
For the child born abroad before November 14, 1986: The U.S. parent married to a non-American is eligible to transmit only if the U.S. parent had spent ten years in the U.S. prior to the child’s birth, and at least five of those ten years must have been after the parent was 14 years old (the “10 year/5 year” requirement).
This physical presence requirement for transmission of U.S. citizenship to children born abroad applies in all cases where a U.S. citizen is married to a non-U.S. citizen—even when the American parent was born in the U.S.
In either the “5 year/2 year” or the “10 year/5 year” requirement, the parent’s physical presence need not have been continuous; visits of any length to the U.S. count toward fulfillment of the requirement. Time spent abroad can also count if the parent was overseas for U.S. military duty, employed by the U.S. government or an international organization as defined in the International Organizations Immunities Act, or if the U.S. parent (when he/she was a child) was abroad as a dependent unmarried child of a person overseas for the above reasons.
Parents seeking to register their children as U.S. citizens at birth should contact their local U.S. Embassy or Consulate and be prepared to show they have fulfilled the physical presence requirement specified in Section 301(g). See “Proof of Physical Presence” below.
N.B. Parents who do not fulfill these requirements and parents of children adopted abroad have two “alternate routes” for having their children become U.S. citizens. Since March 1, 1995, under Section 322 of the INA these parents can have their children naturalized through a procedure administered by the United States Citizenship and Immigration Service (USCIS) for which they can apply from abroad. See “Naturalization for Children and Grandchildren Under 18 Years Old” and “U.S. Naturalization for Minor Children and Grandchildren of Americans Abroad (Section 322)”.
In addition, as of February 27, 2001, under the provisions of the “Child Citizenship Act of 2000”, children of American citizens who did not acquire citizenship at birth automatically acquire citizenship when they enter the US as immigrants. See “Automatic Citizenship for Children Coming to the U.S. on Immigrant Visas (Section 320)”.
TRANSMITTING U.S. CITIZENSHIP AT BIRTH TO A CHILD BORN ABROAD OUT OF WEDLOCK WHEN ONE PARENT IS A U.S. CITIZEN
TRANSMITTING U.S. CITIZENSHIP AT BIRTH TO A CHILD BORN ABROAD OUT OF WEDLOCK WHEN ONE PARENT IS A U.S. CITIZEN (Section 309)
A child born abroad out of wedlock to a U.S. citizen mother is a U.S. citizen at birth if the mother had been physically present in the U.S. or one of its outlying possessions for a continuous period of one year prior to the child’s birth. This must be an uninterrupted period of at least 365 days.
A child born abroad out of wedlock to a U.S. citizen father is an American at birth if the father, prior to the child’s birth, has met the U.S. physical presence requirements in effect for married couples under Section 301(g) (as detailed above). The father must also acknowledge paternity in writing under oath and declare that he will provide support until the child reaches age 18. Or he must legitimate the child while the child is under age 18.
OTHER WAYS FOR A CHILD TO BE A U.S. CITIZEN AT BIRTH
OTHER WAYS FOR A CHILD TO BE A U.S. CITIZEN AT BIRTH
A child born abroad to a couple in which both parents are American is a U.S. citizen at birth as long as one of the parents had a residence—even for a short time—in the U.S. or one of its outlying possessions at some point prior to the birth of the child.
Any child born on U.S. soil is American regardless of its parents’ nationalities (with exceptions, e.g., a child of a foreign diplomat). Such child is an American for life with no need to spend any time in the U.S.
PROOF OF PHYSICAL PRESENCE FOR U.S. CITIZENSHIP AT BIRTH
PROOF OF PHYSICAL PRESENCE FOR U.S. CITIZENSHIP AT BIRTH
Physical presence is counted as the time the parent was actually in the United States. The U.S. citizen parent’s physical presence need not have been continuous (except in the case of an unwed U.S. citizen mother).
Parents not having spent large blocks of time in the U.S. which clearly and unquestionably show fulfillment of the physical presence requirement would do well to produce documents or other evidence showing when and for how long they were actually present there. Airline ticket stubs, passport stamps and high school transcripts, for example, provide objective proof to the Consular officers who are required by law to ascertain that an individual has fulfilled the time specified in the law. Military, employment and tax records also are useful in this regard. The more completely the parent can show that he/she has fulfilled the physical presence requirement, the easier it will be for the Consular officer to document the child as a U.S. citizen.
Collecting such documentation in the course of an individual’s growing-up years is a very good way to be sure one has this “evidence” should the individual eventually marry a non-American and should the individual’s child be born abroad.
Reports of Birth and Children’s Passports
REPORTS OF BIRTH
The U.S. State Department strongly recommends that U.S. citizen children born overseas be documented as such through the completion of a Consular Report of Birth Abroad of a Citizen of the United States as soon after the birth as is convenient. This report records data on the citizenship of the parents, their residence in the U.S., and the time and place of birth of the child. Reports of Birth Abroad can be issued to any U.S. citizen child up to his/her l8th birthday.
The Department notes that a foreign birth certificate, even one that mentions the parents’ nationalities, does not serve as evidence of the child’s U.S. citizenship, but that a Report of Birth will always serve as proof of this fact.
CHILDREN’S PASSPORTS
Children under 16 must appear in person to apply for or renew a passport. Children 14 or over may apply for or renew a passport without parental consent, but the signature of both parents on the U.S. passport application and any renewals of a child under 14 years old is required. One parent must be present to sign the application form, but regulations allow the use of a notarized form (“Statement of Consent: Issuance of a Passport to a Minor Under Age 14”) from the parent who is not present when the passport is issued.
REINSTATEMENT AS U.S. CITIZENS FOR THOSE BORN BEFORE 1952 WHO MAY HAVE LOST THIS STATUS
REINSTATEMENT AS U.S. CITIZENS FOR THOSE BORN BEFORE 1952 WHO MAY HAVE LOST THIS STATUS (Section 324)
Individuals who were born overseas between May 24, 1934 and October 9, 1952 who lost their U.S. citizenship for failure to reside for certain periods of time in the United States when they were in their teens and twenties may regain U.S. citizenship. As of March 1, 1995, such persons may take an oath of allegiance and renunciation at a U.S. Consulate and thereby be reinstated as American citizens and receive a U.S. passport. The citizenship attaches as of the day this oath is taken and is not retroactive to the time the original U.S. citizenship was lost.
“AUTOMATIC” CITIZENSHIP FOR CHILDREN UNDER 18 COMING TO THE U.S. ON IMMIGRANT VISAS
“AUTOMATIC” CITIZENSHIP FOR CHILDREN UNDER 18 COMING TO THE U.S. ON IMMIGRANT VISAS (Section 320)
As of February 27, 2001, the minor child of an American who is coming to the U.S. to live, automatically becomes a citizen upon lawful admission as an immigrant to the U.S. This procedure is under the jurisdiction of the State Department and the visa application is processed by your nearest U.S. consulate.
To qualify for automatic citizenship, children must meet all of the following three conditions:
One parent is a U.S. citizen, by birth or through naturalization;
The child is under the age of eighteen (18);
The child is residing in the U.S. pursuant to a lawful admission as a permanent resident alien in the legal and physical custody of the American citizen parent.
Adopted children qualify if they satisfy the requirements applicable to adopted children under Section 101(b)(1) of the INA, i.e. they have been in the legal custody of and residing with the American citizen parent for at least two years.
The Citizenship Committee understands that to obtain the child’s immigrant visa an affidavit of support will generally not be required except in the case of certain adoption procedures.
For those children qualifying, citizenship becomes effective on the day all the foregoing conditions have been met, that is, upon arrival in the U.S. There is no U.S. residency requirement. Those who acquire citizenship under the Child Citizenship Act may immediately apply for a US passport, either in the US or abroad at US Embassies and Consulates. Acceptable proof of acquisition of citizenship under this new provision includes an alien registration card (“green card”) or the foreign passport containing the USCIS endorsement stamp (I-551) made at the time of the child’s admission into the US as an immigrant.
NATURALIZATION FOR CHILDREN AND GRANDCHILDREN UNDER 18 YEARS OLD (INCLUDING ADOPTED CHILDREN
NATURALIZATION FOR CHILDREN AND GRANDCHILDREN UNDER 18 YEARS OLD (INCLUDING ADOPTED CHILDREN) (Section 322)
Since 1995, a child whose U.S. parent could not fulfill the physical presence requirement of Section 301 (g) of the INA (per above discussion) and children who have been adopted by Americans abroad can become naturalized U.S. citizens even if they reside outside the U.S. Prior to this time families had to reside or intend to reside in the U.S. to obtain Certificates of Citizenship for their minor children.
This is an administrative procedure which is entirely under the jurisdiction of the USCIS in the U.S. It is not administered by the State Department through its consular offices abroad. Once the application is approved by the USCIS, the Certificate is obtained in a single visit by the parent and child to one of the USCIS district offices in the U.S.
ELIGIBILITY REQUIREMENTS
A child living abroad is eligible to become a U.S. citizen under Section 322 if the following requirements are fulfilled:
At least one parent is a U.S. citizen (by birth or naturalization);
The child is present in the U.S. pursuant to a lawful admission;
The child is under age 18 and in the legal and physical custody of the citizen parent;
If the citizen parent is an adoptive parent of the child, the child was 1. adopted before age 16 and has been in the legal custody of such parent(s) for at least two years (however, if the child is a beneficiary of an orphan petition (I-600) through U.S. immigration, this two year custody requirement does not apply);
If the child is not entering the U.S. to reside there permanently, the 2. child must have an American parent or grandparent who was physically present in the U.S. for a total of five years (with two after the age of 14). The parent’s or grandparent’s fulfillment of this physical presence requirement can have taken place before or after the birth of the child.
APPLICATION PROCEDURE
The American parent fills out USCIS application forms and must include documents proving that either the parent or grandparent spent the requisite time in the U.S. The forms and supporting documents are mailed to an USCIS District Office in the U.S. for review. See below regarding the need to choose the District Office carefully.
Applicants abroad are notified of preliminary approval, and an appointment is set up for the American parent and child/children to appear at the chosen USCIS District Office.
There, in a short interview, the child takes an oath of renunciation and allegiance and is granted the Certificate of Citizenship. With the Certificate in hand, the child can obtain a U.S. passport, through a local U.S. Passport Office.
THE 18TH BIRTHDAY CUT-OFF
Children who reach their 18th birthdays without having already completed the USCIS naturalization procedure lose their eligibility to become U.S. citizens under Section 322—even if the application has been submitted but has not been fully adjudicated and even if the delay is the fault of the USCIS! Parents of children who are eligible and who will turn 18 in the next 12 months should act immediately.
OBTAINING APPLICATION FORMS
State the number of children to be naturalized, their ages, and whether or not they are adopted. Address application requests to:
Branch Chief, Consumer Service
Citizenship & Immigration Services
425 I Street, N.W., Room 3214
Washington, D.C. 20536 U.S.A.
Tel: (202) 307-3587 and Fax: (202) 514-8661
THE USCIS’ LESS THAN STERLING TRACK RECORD SO FAR
THE USCIS’ LESS THAN STERLING TRACK RECORD SO FAR
The USCIS in general has not been “user friendly” in implementing this procedure. A number of applicants are successful. Others are meeting with errors or long delays. The ability to process applications efficiently and correctly varies greatly from one District Office to another. All offices are currently facing huge backlogs of work, and processing can take up to a year or more.
EXPERIENCE SHOWS THAT MANY OF THOSE WHO HAVE BEEN SUCCESSFUL USING SECTION 322 HAVE:
1) Carefully chosen the USCIS District Office with which they will work. It is best to avoid USCIS offices in big cities such as Miami, New York, and Los Angeles, and seek out smaller offices such as St. Paul, Buffalo, Albany, Providence, Norfolk VA, Portland OR, Portland, ME, Hartford CT, Helena, MT, Honolulu, HI. The rate of success at the smaller offices is such that filing there is recommended, even if it involves making a special trip to that office from the U.S. city where one has family or other ties.
2) Enlisted the help of their Congressional representatives or Senators to make sure the applications are processed through. Alternatively, some individuals have hired an attorney—a step which is not necessary legally, but one which can be useful in helping to keep a given application from “falling to the bottom of the pile” at the USCIS.
Part of finalizing the naturalization process involves taking an oath of renunciation (of previous nationality) and allegiance (to the U.S.) by children who are judged to be able to understand its meaning. The consequences, if any, to the nationality of a minor child who may take this oath should be evaluated in light of the laws of the country of which he or she is currently a citizen. For example, it is the Citizenship Committee’s understanding that under French law taking an oath, even a renunciatory one, does not endanger French nationality. Similarly, under British law, the Committee understands, a renunciatory oath taken by a person under 18 years of age does not jeopardize that person’s British citizenship. Parents are advised to verify this issue for themselves regarding the laws of the country of which the child is a citizen. It appears that children who do not speak English or are too young to understand will not be asked to take the oath.
NATURALIZATION OF SPOUSES OF U.S. CITIZENS
NATURALIZATION OF SPOUSES OF U.S. CITIZENS
The naturalization of an alien spouse can be obtained by the spouse’s entering the U.S. as an Immediate Relative on an Immigrant Visa and residing there for three years. Spouses of U.S citizens may submit an application for citizenship at the end of three years continuous residence. U.S. citizens contemplating petitioning for Immigrant Visas (green cards) for an immediate relative are urged to contact the Visa Section of their local U.S. Embassy or Consulate as procedures on this have become tighter, particularly regarding the need to provide a legally binding Affidavit of Support.
MILITARY SERVICE FOR DUAL NATIONALS
MILITARY SERVICE FOR DUAL NATIONALS
U.S. law requires young men to register with the U.S. Selective Service within 30 days of their eighteenth birthdays. This may be done at any U.S. Consular office and involves showing proof of U.S. citizenship and filling out a short form. As of this writing there is no draft in the U.S.
Under current law, dual national young persons do not risk losing their U.S. citizenship by fulfilling their “other” country’s compulsory military service. In the event a person chooses to pursue service as a military officer, it is advisable to write a letter to U.S. consular authorities in advance stating the reasons and the person’s intention to retain U.S. citizenship so these will be “on the record” for possible future reference. Normally, however, no such letter is necessary in the case of draftees or those who serve as non-officers in a foreign military not hostile to the U.S.
RETENTION OF U.S. CITIZENSHIP GENERALLY
RETENTION OF U.S. CITIZENSHIP GENERALLY
Individuals who are Americans at birth—including those born abroad—are not required to live in the U.S. for any period of time whatsoever in order to retain their citizenship. Since 1994, naturalized citizens may leave the U.S. after naturalization without raising the presumption that they did not intend to reside in the U.S. (Section 104(b) repealing Section 340(d), INA).
LOSS OF U.S. CITIZENSHIP GENERALLY
LOSS OF U.S. CITIZENSHIP GENERALLY
Section 349 (a) of the INA lists the voluntary acts which, if performed with the intention to relinquish U.S. citizenship, could result in the loss of U.S. citizenship. Among these are:
– Obtaining a foreign nationality upon one’s own application,
– Taking an oath of allegiance to a foreign state,
– Serving as an officer in a foreign army or serving in an army hostile to the U.S.,
– Serving as a high official in a foreign government,
– Making a formal renunciation of U.S. citizenship,
– Working to overthrow the U.S. government.
(N.B. Voting in a foreign election is not grounds for loss of U.S. citizenship. That provision of law was struck down by the U.S. Supreme Court in l967.)
CURRENT POLICY REGARDING LOSS OF CITIZENSHIP Title
CURRENT POLICY REGARDING LOSS OF CITIZENSHIP
In the fall of l990 the U.S. State Department issued guidelines concerning loss of U.S. citizenship under Section 349. Particularly given past problems and uncertainties Americans have had regarding taking on a foreign nationality, these guidelines were and continue to be a revolutionary improvement.
Under this changed policy Americans who obtain naturalization in a foreign country will not lose U.S. citizenship unless they want to. The State Department will no longer judge each case on an individual basis regarding the individual’s intent to remain a U.S. citizen. Rather, the Department now assumes—as a basic administrative premise—that U.S. citizens who obtain naturalization in a foreign state intend to retain U.S. citizenship. The Department now will only revoke U.S. citizenship if individuals actually state that this is their desire.
The following is quoted directly from a circular entitled “Advice About Possible Loss of U.S. Citizenship and Dual Nationality” dated January 22, 1991, from Overseas Citizens Services, Office of Citizens Consular Services, U.S. Department of State, Washington, D.C.:
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.
In light of [this], 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.
The circular notes also that the premise that a person intends to retain U.S. citizenship is not applicable when: the individual takes a policy level position in a foreign state; is convicted of treason; performs an act made potentially expatriating by statute accompanied by conduct which is so completely inconsistent with retention of U.S. citizenship that it compels a conclusion that the person intended to relinquish U.S. citizenship; or when an individual formally renounces U.S. citizenship before a consular officer.
It should also be noted that whether or not the current policy is actually useful in a given case also depends upon the laws of the country of which the second nationality is sought. The new policy works very well in countries such as France which do not require renunciation of one’s previous citizenship. However, it does not remedy the situation for Americans seeking a second nationality in countries such as Germany which require actual and formal renunciation of one’s previous citizenship before granting the new nationality.
Individuals who have lost U.S. citizenship in the past under Section 349 and wish to have their cases reconsidered in light of the current standard may so request through their nearest U.S. consular office. Or they may write directly to:
Director, Office of Overseas Citizens Services
(CA/OCS), Room 4811 NS
U.S.Department of State Washington, D.C. 20520-4818
Tax Issues
AAWE TAX AND FATCA SURVEY
This survey was undertaken by AAWE, the Association of American Women in Europe, in order to better understand the issues and challenges that overseas Americans face with respect to US taxation and FATCA. A report on the survey findings will be presented and actions will be undertaken to address the issues reported by participants.
This survey was a non-commercial undertaking and results will not be used for any commercial purpose. Responses were entirely anonymous and no records identifying those who complete this survey were kept.
For any further information or to discuss survey findings and further action, please contact taxsurvey@aaweparis.org.
Read the key results of the survey here AAWE 2018 Tax Survey
Read a summary of key results of the survey
Some of the most salient information collected in the survey is as follows:
Reasons for leaving the United States: The large majority of the participants (67%) left the United States to live overseas “for love” (in order to join a romantic partner) or for professional opportunities. Others left “for adventure,” to fulfill family obligations, or for studies, and many left with their families when they were small children. Just one participant reported leaving the United States for the purpose of avoiding US taxation. (Appendix 2 Figure 8).
Incomes of US citizens living outside the United States: The large majority of the survey participants are not wealthy: 67% of the participants report individual annual income of $70,000 or less, with 44% reporting individual income of $40,000 or less. With respect to household annual income, 39% report $70,000 or less with 20% reporting $40,000 or less. Just 1% report individual annual income over $300,000 and just 6% report household annual income over $300,000. (Appendix 2 Figures 10-11).
Experiences with US non-resident taxation: Just 11.6% of the participants report not having any problems with respect to US non-resident taxation. In contrast, 41.8% report that they pay significant fees to a professional tax preparer in spite of owing no US taxes, and 38.7% report that they have trouble planning their finances in a manner that makes sense under two different tax systems and thus are penalized financially. Entrepreneurs and owners of small businesses report additional difficulties: 37% report being subject to additional (expensive) filing obligations and 41% report being subject to financial hardship under the 2017 Tax Cuts and Jobs Act, in particular as a result of the Repatriation Tax and GILTI. (Analysis Parts IA-IC; Appendix 2 Figures 13-15, 19, 21, 24).
Experiences with FATCA: Just 14.7% of the participants report not having any problems as a result of FATCA. In contrast, 32.4% report that they have been barred from investments, 30.8% report that they have been unable to open one or more bank accounts, 14.7% report the closure of one or more existing accounts, and 13.4% report that they have been removed as a joint holder from one or more accounts. (Analysis Parts ID-IF; Appendix 2 Figures 25, 27-29, 31, 37).
Who is most affected: No one type of person is spared, but certain types of persons are affected differently or more severely than others: The residents of Switzerland and Australia experience the most hardships at considerably higher rates than the residents of most other countries. As examples: (i) 66% of Swiss residents and 62% of Australian residents suffer from the incompatibly of tax systems making investing and planning for retirement difficult and resulting in financial penalization, and (ii) 72% of Swiss residents and 31% of Australian residents have been unable to open one or more bank accounts. (Analysis Part IIB; Appendix 2 Figures 14-24, 26-37).
Men suffer a number of hardships at greater rates than women, such as the incompatibility of the tax systems resulting in financial penalization (53% vs. 36%) and being barred from certain investments (49% vs. 30%). But certain other hardships women suffer at greater rates than men, such as being removed from joint accounts (14% vs. 13%). (Analysis Part IIA; Appendix 2 Figures 15, 27, 31).
Given the underlying issues pertain to income and investments, it should not come as a surprise that those with higher incomes and more money to invest suffer more hardships at greater rates. For example, 25% of those with individual income over $300,000 have not been able to accept or remain in a position of employment because of their US citizenship; just 3% of those with individual income of $1 to $20,000 have experienced this hardship. (Analysis Part IIC; Appendix 2 Figure 35). This does not mean, however, that those with lower incomes and/or less money to invest do not suffer other hardships at high rates. Here are just two examples:
– 24% of those with individual income of $0 and 38% of those with individual income of $1 to $20,000 pay significant fees to a professional tax preparer in spite of owing no US taxes; and
– 14% of those with individual income of $0 and 19% of those with individual income of $1 to $20,000 have been removed from one or more joint accounts. In contrast, not a single participant reporting annual individual income of over $300,000 has been removed from any joint account. (Analysis PartIIC; Appendix 2 Figures 14, 31).
The participants submitted a number of comments more specifically describing the hardships that they are facing and their most preoccupying fears and concerns (Appendix 3). A common emotional theme runs through the comments in their frequent usage of words like “afraid,” horrified,” “nightmare,” “danger,” “betrayed,” “vulnerable,” “anxiety,” and “desperate.” (Analysis Part IIIA). Of all these comments, perhaps this one best sums up the situation of US citizens living overseas: “I feel threatened by my very identity.” (Appendix 3 Comment 9).
The Case for Fairer Taxation on Non-Resident US Citizens
Article by Laura Snyder
Read the full article here.
THE CASE FOR FAIRER TAXATION OF NON-RESIDENT US CITIZENS
By Laura Snyder
For over 150 years, US citizens residing outside the United States have lived subject to two different tax systems: that of their countries of residence as well as that of the United States. While many countries tax their residents (citizens or not) on the basis of their worldwide income, the United States is just one of two countries in the world that taxes the foreign (non-US) income of their non-resident citizens (and green card holders). The United States adopted this policy during the Civil War, when lawmakers justified the action by typecasting US citizens living overseas as wealthy draft and tax dodgers seeking to avoid their military and financial obligations to the United States.
Living subject to the tax systems of two different countries is difficult. While the potential for double taxation can be a problem, an even bigger problem is that the two systems cannot be reconciled, such that financial steps—notably investments and retirement plans—that are favored in the US citizen’s country of residence are financially penalized under US tax laws. Further, the US tax returns of US citizens living overseas are complicated and many are unable to complete them correctly without professional assistance.
Brochure AAWE Tax SurveyThis problematic situation was further complicated with the 1970 adoption of the Bank Secrecy Act, requiring US citizens to report to the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) all bank and other financial accounts meeting a minimum threshold value and held in financial institutions outside the United States, in a form referred to as “Report of Foreign Bank and Financial Accounts” (FBAR). This meant that US citizens living outside the United States became required to report to an agency responsible for the investigation of crimes what for those US citizens are local bank accounts needed in order to live ordinary lives in the places where they live.
The aberrational nature of the taxation of non-residents combined with the difficulty of compliance and the initial lack of enforcement of the FBAR meant that for those 150 years compliance rates were low. This was especially the case among those who did not even realize they were US citizens (they were born in the United State but left as small children and have spent nearly all their lives outside the country). Those US citizens who had some level of awareness of their obligations had little incentive to openly challenge them for so long as the United States did not attempt to enforce compliance, leaving US citizens in peace —albeit an awkward one—to live ordinary lives in their countries of residence—and notably leaving them in peace to plan for retirement, invest, and bank in the same manner as the other residents of the countries where they live.
All this changed first in 2001 with the Patriot Act which directed the Treasury Department to enforce FBAR. This direction was reinforced under the 2004 American Jobs Creation Act, which increased the penalties for failure to comply with FBAR to as much as the greater of $100,000 or 50% of the account balance.
The 2010 HIRE Act had an even more significant impact: in order to meet the requirements of the recently adopted Pay-As-You-Go Act (PAYGO), the HIRE act sought to compensate for the tax breaks and incentives it granted to businesses to hire unemployed workers by looking outside the United States for tax revenue. However, it did this not by creating any additional tax or by organizing for the collection of any tax. Instead, under the section known as FATCA, the HIRE Act obliges foreign financial institutions to report to the IRS detailed information about all accounts held by “US persons.” Foreign financial institutions that fail to comply are subject to severe penalties—a withholding tax of 30% on all payments of the institution’s US-sourced income. FATCA also imposes complex reporting requirements upon US taxpayers: these requirements are in addition to but mostly duplicative of those required for FBAR.
FATCA places enormous burdens upon foreign financial institutions. As result, many of them are (i) refusing to open new and closing existing accounts for “suspected US persons,” (ii) pressuring non-US persons holding joint accounts with “suspected US persons” to remove the US person as account holder, and (iii) refusing to grant mortgages to “suspected US persons,” or imposing higher rates.
US citizens and green card holders are also being refused (i) employment opportunities that entail signature authority for the employer’s accounts, (ii) investment and entrepreneurial opportunities with non-US investors and partners, and (iii) opportunities to serve a not-for-profit in any position entailing account signature authority. Americans living overseas have become persons to be avoided because their involvement will result in the need to report to US tax authorities and to a US crime investigative agency accounts that have nothing to do with the United States.
Additional Burdens Placed Upon Small Business Owners
The international provisions in the Tax Cuts and Jobs Act adopted in December 2017 were intended to target large multinational companies like Google and Apple. However, those provisions are having effect upon US citizens who live outside the US and who own small or medium-sized businesses in their countries of residence. These provisions are referred to as the “Repatriation Tax” or “Transition Tax,” on one hand and “GILTI,” on the other.
The Repatriation Tax requires the US-citizen shareholders of a non-US company to pay a one-time tax of at least 15.5% of the post-1986 retained earnings of the company. The tax is due in the absence of any distribution by the company or any other realization event. This tax imposes an especially serious burden on small and medium-sized business owners who live in countries where such companies are used as retirement vehicles: the tax means that they will lose a large percentage of the funds they had counted on for retirement. Furthermore, the distribution of these retained earnings to the shareholder enabling him/her to pay the Repatriation Tax will trigger distribution and income taxes in their country of residence and limited credit for these taxes will be allowed.
Global Intangible Low Taxed Income (“GILTI”) requires that, on an ongoing basis, US-citizen shareholders of foreign companies include in their personal tax base a share of certain types of the company’s earnings. In a manner similar to the Repatriation Tax, this tax must be paid regardless of whether or not the company actually pays out such amounts to the shareholder in dividends. And, if the company does indeed pay out any amounts in order to enable the US citizen to pay the GILTI tax, those dividends will also be subject to local taxes for which only limited US tax credits will be allowed.
Understanding the Non-Resident US Citizen
When US citizens living overseas object to US non-resident taxation and banking policies they are often told that any problems are eliminated by the foreign-earned income exclusion and tax credits, that they should “pay their fair share,” that (echoing the Civil War lawmakers) if they live overseas it can only be because they are wealthy and are seeking to avoid US taxation, that if they are so unhappy then they should just move back to the United States or renounce US citizenship.
These responses show, at best, lack of knowledge regarding Americans who live outside the borders of the United States.
To begin, the foreign-earned income exclusion ($104,100 for 2018) applies only to earned income. It does not apply to unearned income such as unemployment compensation, retirement benefits, capital gains, or insurance proceeds. To the extent the income in question is not earned income, a US citizen living overseas cannot benefit from the foreign-earned income exclusion.
Foreign tax credits offer limited relief at best: The formulas applied to calculate them are highly complex, and they often fail to produce an amount that is actual dollar-per-dollar of the tax paid. Further, a foreign tax credit applies only to the extent that the foreign tax paid is equal to or greater than the taxes otherwise owed to the United States with respect to the same income. For example some countries either do not tax retirement benefits or tax them at a very low rate. If the non-US resident taxpayer lives in a country that applies lower rates of taxation to retirement benefits than the United States the non-US resident will end up paying in tax not the amount owed by other retirees who live in the same country, but instead a higher amount: the amount owed under US tax rules. And the taxpayer will pay that tax in part or in whole not in the country where he/she accrued that retirement benefit and lives but instead will pay it to an entirely different country: the United States.
With respect to the claim that US citizens living overseas should “pay their fair share:” it’s not clear just what those US citizens are paying for: US citizens pay taxes in the countries where they live and in doing so they fund public services such as police and fire fighting, schools, roads, and other infrastructure. So calling upon those who do not live in the United States to “pay their fair share is essentially asking them to pay their fair share twice: once to the country where they live and then again to the United States. This is a burden unique to US citizens living outside the United States: Neither the citizens of other countries living outside the United States nor persons living inside the United States (citizens or not) are called upon to “pay their fair share” twice.
Most of the returns filed by US citizens living overseas show they owe no tax and, accordingly, no tax is paid. On the other hand, those same US citizens living overseas often pay hundreds if not thousands of dollars each year for the preparation of their lengthy and highly complex US tax returns. In fact, the principal beneficiary of the claim that non-resident US citizens should “pay their fair share” is not the US Treasury—it is the professional tax compliance industry.
There is nothing in the available data to support the preconception that Americans living overseas are wealthy or that they moved overseas in order to avoid US taxation. To the contrary, one-fifth of the participants in one study were freelance English teachers and one-fifth worked in IT or communications. Of the remainder, many were veterans of the US armed forces who remained overseas after retirement or the end of a tour of duty, and many were retirees, often living in low-cost locations like Mexico or rural Portugal. Further, while US citizens live in at least 100 countries, the large majority of them live in high-tax countries such as the United Kingdom, Canada, Germany, Australia and France. Indeed, of the top ten countries hosting US citizens, only one—Mexico—has a lower total tax burden as a percentage of GDP as compared to the United States.
Especially troublesome is the response that if US citizens living overseas are so unhappy then they should just move back to the United States or renounce US citizenship. Contained in this response is the implicit acknowledgement of the burdens that US banking and taxation policies impose upon US citizens.
Americans live overseas for valid and enduring reasons, such as in order to share their life with a spouse or partner and other family members or in order to pursue professional opportunities. These reasons have led them to build lives in their countries of residence: raising families, pursuing careers, creating businesses, etc. The suggestion that they simply “move back to the United States” is a suggestion that they break up their families and turn their backs on their livelihoods. Further, many US citizens either have never lived in the United States or they left when they were very young.
Renunciation of US citizenship is equally problematic. The renunciation fee alone is $2,350 – the highest in the world. Add to this the expense of ensuring tax compliance for previous years and of preparing a complex form detailing income and assets in order to determine if the individual is a “covered expatriate, together with the payment of the exit tax due in the event the individual is a “covered expatriate.” In sum, renunciation of US citizenship costs at a minimum several thousands of dollars and potentially much more. (Since the implementation of FATCA renunciations have increased: in 2012 fewer than 1000 people renounced US citizenship; in each of 2016 and 2017 more than 5000 people did). (Appendix 1, Part IVD).
Even more significant, renunciation of citizenship means that US citizens who are not citizens of another country would be left stateless. Stateless persons are highly vulnerable: considered a foreigner by every country in the world, they may lose the right to work, to vote, to hold public office, or even to live in any country. Statelessness may also mean losing rights to attend school, to have a bank account, to own real estate, to access healthcare, to get married. Statelessness is such a serious condition that it is considered to be a human rights violation; the right to a nationality is a fundamental human right.
As for those who are citizens of one or more other countries, citizenship is an integral part of their identity. Suggesting they give it up is akin to suggesting they give up a limb. Those who have renounced, in many cases because they felt they had no choice, describe the experience as “gut-wrenching,” and “it hurts my heart.” Further, many US citizens overseas have close family members living in the United States. Those family members often include aging parents and/or others who are unable to undertake international travel. Renunciation of US citizenship incurs the risk of not being able to enter the United States even on a temporary visit let alone on a long-term basis in order to visit or care for a family member, because only current US citizens have the right to enter the United States. Placing US citizens living overseas in the position where they must choose between either moving (back) to the United States or renouncing their US citizenship violates Article 13 of the Universal Declaration of Human Rights which provides: “Everyone has the right to leave any country, including his own, and to return to his country.”
In sum, for most US citizens living overseas, there are huge if not insurmountable barriers to moving “back” to the United States as well as to renouncing US citizenship. Suggesting these highly consequential actions as solutions to the problems created by FATCA and non-resident taxation both: (1) acknowledges the severe hardships these policies create, and (2) exposes the fundamental injustice of the policies.
AAWE member Laura Snyder was born and raised in the United States. She holds a JD from the University of Illinois College of Law, a DEA in droit privé from the University of Paris 1 (Panthéon-Sorbonne), and she completed the TRIUM Executive MBA program. Laura currently practices law in France, is a member of the bars of Illinois, New York, and Paris, and is the international representative on the Taxpayer Advisory Panel (TAP), a Federal Advisory Committee to Internal Revenue Service.
Additional Tax Resources
Before June 30, file the FinCEN Form 114, the FBAR, electronically from your computer with the US Treasury. Required if in the previous calendar year you had more than $10,000 total in foreign financial accounts, as defined in the FBAR section here. https://fr.usembassy.gov/u-s-citizen-services/internal-revenue-service-u-s-taxes/
The IRS website has greatly improved when it comes to foreign issues:http://www.irs.gov/Individuals/International-Taxpayers/Taxpayers-Living-Abroad (for US citizens living abroad), and http://www.irs.gov/Individuals/International-Taxpayers (for international taxpayers in general)
Get information about US Tax and Banking Issues through FAWCO at http://www.fawco.org/index.php?option=com_content&view=category&id=182&Itemid=200061
(As an AAWE member you are automatically a member of FAWCO, the Federation of American Women’s Clubs Overseas.)
The US Embassy in Paris provides information at https://fr.usembassy.gov/u-s-citizen-services/local-resources-of-u-s-citizens/
US Taxes: Reporting International Income and Assets
By Beth Paul Saunier, 2012
AAWE member Beth Paul Saunier owns BPS Tax Services, a consulting firm specializing in US taxes for an international clientele, and in the interaction between the US and French tax systems.
US Taxes: Reporting International Income and Assets
As we all know (or should know!), Americans living abroad generally need to continue filing US tax returns even when they live overseas. The reason why is because America, unlike most countries, levies taxes based on citizenship and thus US tax obligations follow American citizens no matter where they go.
Reporting of Income
The general premise is that Americans have to report their worldwide income on their US tax return. Income tax treaties between the United States and certain foreign countries provide for occasional exceptions to this rule, but those exceptions are rather rare. One of the notable exceptions is for US citizens living in France who receive French social security benefits, such as pensions, family allowances, etc., as those amounts now do not have to be reported on a US return.
So you may ask – Unemployment? Indemnities received because I lost my job? Damages received from my employer or my landlord because of a legal issue that I pursued or agreed not to pursue? Interest from my Livret A which is not taxable in France? The answer to all of these questions will almost always be yes, put the income on your US return and be subject to US tax on it. Remember that tax favorable treatment in one country does not necessarily mean tax favorable treatment on the income in another.
Foreign income is most often broken into two categories – earned vs. unearned for foreign-earned income exclusion purposes, and passive vs. general category for foreign tax credit purposes.
Earned vs. Unearned
Earned income, that is to say income received for your active work either as an employee or a self-employed individual, of up to $92,900 is often subject to exclusion on Form 2555. This means that if your foreign wages are under this amount, you will not actually pay US tax on your foreign wages, though they will still be “stacked” against your other taxable income which will result in more tax being owed on such other income. Earned income above the $92,900 limit may also be subject to a foreign housing exclusion or deduction.
Unearned income which, essentially, is any income that is not considered earned and specifically includes pensions, is not subject to exclusion and thus cannot be put on Form 2555.
Passive vs. General Category
Passive income includes investment income from financial products such as savings accounts and brokerage accounts. It also includes annuities, royalties, and most rental income.
General category (GC) income is salaries, most overseas allowances received as an employee, self-employed earnings, income earned from active involvement in a trade or business, pensions, and unemployment.
The distinction between passive and general category is important in calculating foreign tax credits on Form 1116. Foreign income taxes paid on passive income can be claimed to offset US tax on such foreign passive income. Likewise, foreign income taxes paid on general category income can be used against US tax owing on foreign general category income.
What does this all mean?
Let’s take an example of a Franco-American couple who pays high French income taxes on their salaries and just sold their jointly-held maison secondaire, the profit from which is exempt from French (income) capital gains tax because they held it for the necessary (French) tax-free holding period. The American must report at least 50% of the capital gain on her US return. Even though she pays a significant amount of French income tax, such income tax is on general category income (wages) and thus cannot be used to offset the US tax owing on the (passive) gain. Thus the American will be fully liable for US income tax on the gain unless she has a carryover of passive foreign tax credits from previous years. Ouch! Obviously tax planning should be done before the sale as there are various things one can do to try to minimize the US tax bite.
Reporting of Assets
American citizens with foreign assets are subject to increasingly burdensome reporting requirements. Foremost, most Americans living overseas file a TD F 90-22.1 by June 30th of every year to report their interests in foreign bank and financial accounts which exceeded $10,000 during the preceding year.
Additionally, due to recent changes to the US tax code, US citizens will need to file a new form, Form 8938 with their 2011 tax return which reports their non-US accounts, non-US stocks and securities, non-US financial instruments and contracts, and interests in non-US entities, if the total aggregate value of such assets exceeds certain threshold levels which vary based on filing status and country of residency. This new form will be in addition to other similar foreign reports, including the TD F 90-22.1 concerning non-US accounts.
If you are an American married to a non-American, it is key that you know and understand your marital property regime, as these forms should reflect assets owned separately as well as your share of any joint assets you own, or are legally deemed to own, by virtue of your marital property regime. This reality can come as a surprise to many international couples who thought that simply registering their American accounts under the American’s name and the French accounts under the French partner’s name was enough to keep their property “separate”. In reality, a marital property regime may completely defeat such attempts at separating property and impute partial ownership to the non-title owner, which thus may result in many international couples revisiting and possibly changing their marital property regime.
Finally, Americans should also be aware that certain foreign income and interests can carry additional reporting requirements, namely receiving an inheritance or gift from a non-American, owning or having an interest in a foreign entity, such as an SCI or an SARL, or having an interest in a foreign trust (noting that a US trust can rather easily be construed as a foreign trust if the trustee or decision-making authority rests with a foreign person).
So what will happen if I do not file these reports? Steep civil penalties and possible criminal prosecution is the answer. Historically the IRS has not pursued harsh penalties against Americans who did not file many of these reports because they simply did not know better. The IRS is now pursuing international non-compliance issues much more aggressively than in the past, so it is likely that the IRS will not be as forgiving as previously.
Circular 230 warnings/disclaimers apply to the foregoing text. Always contact your own professional for personally-tailored tax advice.
By Beth Paul Saunier, 2012
AAWE member Beth Paul Saunier owns BPS Tax Services, a consulting firm specializing in US taxes for an international clientele, and in the interaction between the US and French tax systems.