October 1993
Page
1-7
the
CEN-TA PEDE
david
ingram's US/Canadian
Newsletter
DUAL CITIZENS - CANADA / UNITED STATES OF
AMERICA
This also
applies to a US citizen / landed immigrant in Canada or to a Canadian with a
US Green Card and maintaining Canadian ties or to a Status Indian (not on a
reserve) and working in Canada or living in Canada while working in the U.S.
Much of the
following is "word for word" from a pamphlet called DUAL
CITIZENSHIP published by Multiculturalism and Citizenship Canada. This
pamphlet is written from the Canadian perspective. I have added the American
perspective and my version is far more ominous than the rather tame Canadian
Version. Other parts are taken "word for word" from identified US
publications.
[Plain Paragraphs
without [square brackets] are from the Canadian pamphlet word for word. BOLD
FACED Paragraphs inside [square brackets] are my interpretation of the
problem for US / Canada Dual Citizens. Please note that my remarks would be
completely different for Australia, New Zealand, Great Britain / Canada
versions. This is because these countries and Canada do not tax their
citizens on their world income (but still tax income sourced within the
country) when they do not live in the country unless the citizen maintains
close and continuous economic ties with their parent country and then the
income usually needs to be earned active income in the form of wages or
business income rather than passive investment.]
Italic
items inside {Squiggly brackets} refer to items issued by the United States
Consulate General. These items are available directly from: the Consulate
General of the United States of America, American Citizenship Unit, 1095
West Pender Street, Vancouver, B. C., V6E 2M6, (604) 685-4311. The specific
US items used in this treatise (in no particular order) are: M-321 dated
6-84 and titled PASSPORT SERVICES; VAC 103 0001p-34 dated 03/91 and titled
INFORMATION ABOUT POSSIBLE LOSS OF US CITIZENSHIP; VAC 31 0001p-17 dated
04/91 and titled AMENDMENTS TO CITIZENSHIP REGULATIONS.
[I have kept
the topic headings and added my own interpretations with particular respect
as to the special problems that US/Canada dual citizens have. Please note
that an American does not suffer by acquiring Canadian Citizenship as a
rule. Canadians on the other hand sometimes fall into a tax horror show if
they acquire US residency while they continue to work in Canada. This is
because they only look at the difference between the two federal tax rates
and do not pay any attention to the heavier FICA taxes in the U.S., the gift
taxes in the U.S., the inheritance taxes in the US or even the heavier user
fees in the US. The US citizen does not consider it a tax horror show
because he or she has grown up with that system and sees it as normal].
INFORMATION
ABOUT POSSIBLE LOSS OF US CITIZENSHIP
The
Department of State is responsible for determining the citizenship status of
a person located outside the United States.
The United
States does not officially favour dual nationality as a matter of policy,
but does recognize its existence in individual cases.
Under US
law, acquisition of citizenship of a foreign country upon one's own
application after one's 18th birthday is potentially expatriating and can
result in the loss of US citizenship. However, in order to find a loss,
court decisions have determined that the action must be both voluntary and
with the "intent to lose" US citizenship.
The
standards used in adjudicating such cases are based on the premise that US
nationals intend to keep their US nationality when they obtain the
nationality of another country [Note - this also leaves the US able to
continue to tax US nationals who take out Canadian Citizenship], when they
make a pro forma declaration of allegiance to another country or when they
accept a non-policy level position in another country.
There are
no specific steps you can take in advance of naturalization as a Canadian
citizen to protect your US citizenship and a consular officer cannot provide
any assurance that you will be able to retain it. However, in all cases in
which Canadian citizenship was acquired without the intent of relinquishing
US citizenship, the Department of State has determined that an individual
may continue to be documented as a US citizen. Nevertheless, each case must
be adjudicated individually.
It should
be noted that it is still possible to lose US citizenship by holding a
policy level position in a foreign government, by acquiring foreign
citizenship with the intent of relinquishing US citizenship, or by formally
renouncing US citizenship before a US consular officer.
If you have
become a Canadian citizen and wish to have a determination made as to
whether you may continue to be documented as a US citizen, you should
contact this [the Vancouver] office telephonically, or in person during the
hours of 9:00 a.m. - 1:30 p.m., Monday to Friday, except US/Canadian
holidays, for further information. VAC 103, 0001p-34 03/91.
WHAT
IS MEANT BY DUAL CITIZENSHIP? [or dual residency]
Every
independent nation makes its own decision as to who its citizens are. You
possess dual or multiple citizenship when more than one country recognizes
you as its citizen.
Unlike the
"Citizenship Act" in effect in Canada until 1977, the present Act
allows a Canadian citizen to acquire foreign nationality without
automatically losing Canadian citizenship. Since February 15, 1977, a
Canadian citizen may retain Canadian citizenship, unless he or she
voluntarily applies to renounce it, "and" the application is
"approved" by a citizenship judge. The present Act thus makes it
possible to have two or more citizenships and allegiances at the same time
for an indefinite period.
[The US
government also allows one to be a citizen of Canada and the US at the same
time. This privilege depends upon when you were born and the relationship
you have to the American who is giving you your claim. At one time, like
Canada, the US cancelled your US citizenship when you took out Canadian
citizenship. Then they gave it back retroactively. Therefore, many
individuals who thought they were no longer citizens of the US are now
finding that they are still citizens and possibly owe back tax to the U.S.]
[At a March,
1992 seminar held at the US Consulate in Vancouver, Mike Damasiewicz of the
IRS stated that the US could demand tax returns back to (are you sitting
down?) 1967 from the rediscovered American. However, as a practical gesture,
if the American was to file his, her or their 1987, 88, 89, 90 and 91
returns, and send them to:
IRS Attache
FAX (613) 230-1376
201-60 Queen
Street, (613) 238-5335
Ottawa,
Ontario, CANADA, K1P 5Y7
The IRS
Attache would recommend that the returns be accepted without penalty.
Unfortunately, that is not without interest. The late returns quite
regularly have taxes owing, either because of capital gains tax or
Alternative Minimum Tax. The IRS is NOT waiving interest on the outstanding
balance. Once the $70,000 earned income exemption is used up, the AMT kicks
in at limits of $20,000 for a married person filing separately, $30,000 for
a single person, and $40,000 for a couple. Alternative Minimum Tax works out
to approximately 10% of the tax which would have been owed on the amounts
over the limits above; e.g. if the income was $25,000 U.S., and the tax
would have been $750 on the $5,000 but is covered by a foreign tax credit
for the tax paid to Canada, the AMT would be $75.00 (10% of the $750).
Stockbrokers or investors in securities are particularly at risk. Two recent
cases have involved an American Stockbroker who lives in Canada and did not
file his US returns. The final result: over $150,000 more tax and interest
to the US than was paid to Canada at our supposedly higher tax rates. The
other was an American Stockbroker who spent so much time in Canada as a
visitor and did so much work with the Vancouver Stock Exchange, that Canada
went back for four years and got over $250,000.]
[The foregoing
paragraph applies to an American in Canada. However, if a Canadian retains
his or her citizenship and moves to the US, in 19 out of 20 cases, Canada
relinquishes the right to collect income tax on the Canadian's world income.
But, when an American is living in Canada or any other country, the US still
demands an annual tax return on the Canadian resident/US citizen's WORLD
income including tax on the family home if sold at a profit (Canada does not
usually tax the family home), tax on capital gains earned in Canada
(including the first $100,000 of capital gains which Canada allows tax free)
and estate and gift taxes which can run up to 55% of the gift or estate.]
{Consequently,
you may have the rights and the obligations of a citizen of each of
those countries. Whenever you are in a country which recognizes you as a
citizen, that country's laws take priority in relation to you over the laws
of any other country of which you are a citizen. International treaties may,
however, allow exceptions to this rule.}
[This is
definitely not true with regard to Income Tax. US tax law is as enforceable
in Canada as it is in the States if your dual status comes to their
attention. Article XXVII of the US / Canada Tax treaty and Section 3 of the
Tax Convention Act and Section 231.2 of the Canadian Income Tax Act require
Canada to give information to the US IRS if requested (and vice versa of
course). Negotiations are ongoing for collection procedures allowing the
collection of tax by one country from a resident of the other country.]
{A person
may have several citizenships at the same time. For example, a person who
was born in a country other than Canada, naturalized in Canada and then
naturalized in a third country may be a citizen of all three countries.
Cases of dual citizenship are more common. Although this pamphlet deals
primarily with dual citizenship, the information in it applies equally to
persons holding the citizenship of more than two countries. The terms
"dual" citizenship/nationality" are now used
interchangeably.}
HOW
DOES DUAL CITIZENSHIP OCCUR?
If you, your
parents, your grandparents and your spouse, if you are married are all born
in Canada, and you have not become the citizen of any other country, then
you most likely possess only one citizenship -- Canadian. It is quite
possible, however, that one or more of those persons were born outside
Canada. This might result in your having dual citizenship, depending on the
laws of both countries concerned. For example, if you were born in Canada
and one of your parents or your spouse was born outside Canada, you might be
considered a citizen by your parent's or spouse's former homeland, even if
you never asked to be one. Dual citizenship occurs because citizenship can
be obtained in more than one way; through country of birth, naturalization,
parents, grandparents, or in rare cases, marriage. [A recent client was
born in the US. His mother was born in Germany and was a naturalized
Canadian. His father was born in England and also a naturalized Canadian.
That's right, he was an American, Brit, Canadian and German citizen at the
same time. All the rights AND all the obligations. QUAD-Citizenship!]
Citizenship is a
complex matter because of the great variety of citizenship laws throughout
the world. Some countries allow dual citizenship. Some take away the
citizenship of a person who acquires another citizenship. Some do not
recognize that person's new citizenship. Some allow a wife to retain her
citizenship and acquire that of her husband, while others give her the
husband's citizenship and no longer recognize the citizenship she had before
her marriage. Some countries give a child the citizenship of the father, or
of the mother, or of either, or of both, and so on. The laws that apply to
your case are generally the ones that are in force at the time of the events
which have an effect on your citizenship (your birth or marriage, or your
parent's birth or marriage, etc.). This is why determining your present
citizenship status can be a difficult and lengthy process.
Before the
Citizenship Act of February 15, 1977, Canadian law limited dual citizenship.
It also provided more ways to gain or lose citizenship than does our present
law. Canadians who became citizens of another country before that
date should check to see if they are still Canadians. Since that date
Canadian law, like the law of several other countries, has allowed dual
citizenship.
[The US
Citizenship Act does and did the same thing with the same type of arbitrary
dates.]
AMENDMENTS TO CITIZENSHIP REGULATIONS
Several
significant changes to the US Immigration and Nationality Act offering
acquisition, retention, and loss of United States citizenship were approved
under P.L. 99-653 signed by President Reagan on November 14, 1986.
Subsequently, under P.L. 100-525 President Reagan signed the Immigration
Technical Corrections Act which became law on October 24, 1988. Some of the
changes are prospective in effect, and some are retroactive.
ACQUISITION
The period of
physical presence in the US required for transmission of citizenship to a
child born abroad of one US citizen parent and one alien parent has been
reduced. Specifically, the citizen parent must have been in the US for five
years, at least two of which were after the age of fourteen and prior to the
child's birth, in order to transmit citizenship. This change applies only to
children born on or after November 14, 1986.
RETENTION
Persons born
in the United states and naturalized in a foreign country while a minor
(under age 18) are no longer required to establish permanent residence in
the US prior to age 25 in order to retain their US citizenship.
LOSS
The age at
which a person is subject to loss of nationality by obtaining naturalization
in a foreign country on his or her own behalf has been changed from age
twenty-one to age eighteen, for persons becoming naturalized in a foreign
state on or after December 24, 1952.
Foreign
military service may be potentially expatriating only when such service is
with foreign armed services engaged in hostilities against the U.S., Or when
a person serves as a commissioned or non-commissioned officer, when such
service is on or after November 14, 1986.
Loss of
nationality as a result of foreign government employment is limited to
persons 18 years of age and older. The establishment of a permanent
residence abroad by a naturalized citizen within one year (previously five
years) of naturalization shall be considered as prima facie grounds for the
revocation of citizenship, only when such residence is established
abroad on or after Nov 14, 1986.
Anyone who
considers that one of the above provisions of the law might affect his or
her citizenship should contact the US Consulate General for additional
information and advice. VAC 31 0001p-17 04/91}
[Specific
information and new details are available from the closest US Embassy. In
Vancouver that is at:
U S Consulate
General, 1095 West Pender, Vancouver, BC, V6E 2M6, (604) 685-4311 - Fax to
(604) 685-5285]
ARE
YOU A CITIZEN OF MORE THAN ONE COUNTRY?
[To find out
whether you are or might become a dual citizen, you must ask the officials
of each country that could be involved in your case. You will have to
provide some information about yourself, such as place and date of birth,
citizenship of your parents, immigration details, etc. You may also have to
provide similar information about your parents, and possibly your spouse and
grandparents.]
If you are in
Canada and want to find out if you are a citizen of any other country, you
should communicate with the embassy or consulate of that country. (If it has
no representatives in Canada, the Protocol Service, Department of External
Affairs, Ottawa, K1A 0G2 will direct you to its nearest representatives.) If
you have questions concerning Canadian citizenship, you should communicate
with any Court of Canadian Citizenship (in Canada) or with any Canadian
diplomatic or consular post abroad. You may also write to the Registrar of
Canadian Citizenship, Multiculturalism and Citizenship Canada, Ottawa, K1A
0M5.
DUAL
CITIZENSHIP IS AN IMPORTANT ISSUE
Dual citizenship
may carry with it certain benefits, but it may involve you in unexpected
difficulties -- legal proceedings, taxation and financial responsibilities,
military service, denial of emigration, even "imprisonment" for
failure to comply with obligations in one of your countries of citizenship.
Accordingly, you should ask yourself these vital questions:
Am
I now a dual citizen?
Can I acquire
dual citizenship, either by marriage or by naturalization in Canada or in
another country? Is dual citizenship an advantage or disadvantage for me?
[Dual
citizenship with the US (if you stay in Canada) is a major tax DISADVANTAGE.
But, if the US citizenship allows you to keep working or gets you a job
working on both sides of the border or some other benefit of an income
nature, it may be worth it. Simply taking out dual citizenship so that one
of your children can go and live in the US can be extremely costly.
If
dual citizenship is a disadvantage, what can I do about it?
To CANCEL US
citizenship, you have to fill in a 4 page form and give it to the embassy OR
CONSULATE. Similar rules apply to Canadians wishing to cease being
Canadians.
It is strange
to think that people would give up citizenship in either Canada or the US
when two thirds or more of the world's population would give up their right
arm to live in either country. However, those that have money want to keep
it. Being a dual citizen of these two countries can be very taxing. Persons
with large earned incomes are usually slightly better off in the US during
their earning years and much worse off with regard to estate taxes. However,
this is only true when there is a large mortgage in place. If there is not a
large mortgage, when FICA taxes of 15.3% on the first $53,000 are thrown in
and you live in one of the 43 states with a state income tax, the day to day
tax rates in the US are now usually higher than Canada. When medical costs
are thrown in, particularly for young families with children, it is my
experience that Canada is far better. To be fair, President Clinton's new
medical plan may change that position (as of Oct, 93).]
Most Canadians
think that the mortgage interest deduction in the US would make all the
difference in their lives. The Canadian has to realize that the American
couple gives up a standard deduction of $5,700 to claim mortgage interest as
a deduction. Therefore, at 8% interest rates, you have to have a mortgage of
over $60,000 US for interest and property taxes to be worth anything by
themselves. I understand that 85% of residential mortgages in North America
are under $50,000. Tenants do not get a deduction. Being self-employed in
San Francisco with a $87,270 income and rent of $1,700 a month will likely
cost you $7,000 more in total taxes than earning $100,000 in Vancouver and
paying $2,000 a month in rent. A recent article in the February 12th edition
of the Financial Post in Canada did the same comparison between Denver,
Colorado and Calgary, Alberta for a homeowner. The overall tax rate
(including property tax, sales tax, state and provincial taxes, social
security and Canada pension plan was (are you ready for this) some $13,000
HIGHER in Denver than Calgary.]
DUAL
CITIZENSHIP -- ADVANTAGE OR DISADVANTAGE?
Suppose you learn
that you (or a member of your family) have dual citizenship or might acquire
it. Would dual citizenship be good for you? Would it have more advantages
than disadvantages? For some people, dual citizenship offers practical
advantages, e.g. in social security or employment. It may also enhance their
feeling of belonging, because they have strong personal ties to more than
one country.
However, it is
important to realize that there can be hazards and disadvantages as well.
The following paragraphs suggest some consequences of having dual
citizenship. In general, the laws that apply to you at any time are the laws
of the country in which you are physically present at that time. The laws of
a country may provide, for example, that persons residing in the country of
their second citizenship may travel only on the country of their residence.
Possession of a second passport could result in its being confiscated, or
even result in a fine. [This is not true for US / Canada dual citizens].
If a Canadian has
any legal or other difficulties outside the country, Canadian diplomatic and
consular officials in that country can try to help. However, if the Canadian
in difficulty in another country is also a citizen of that country, Canadian
officials may be entirely unable to help. That country will be dealing with
one of its own citizens, and probably will not welcome "outside
interference". Indeed, foreign authorities will definitely consider you
one of their citizens, especially if you choose to travel under their
passport. Travelling with a Canadian passport and another country's passport
simultaneously might also lead to difficulties in a third country [for
instance between Israel and some Arab countries].
There may be laws
in a country to which a foreign traveller is not subject, but which apply to
you as a citizen of that country - for example, restrictions on exit,
compulsory military service, special taxes or financial compensation for
past services received, including educational costs. There might even be
special circumstances relating to you in particular - for example, friends
or relatives may be affected by your visiting that country, or there may be
legal proceedings against you that could begin again if you return.
You might be
affected if countries of which you are a citizen are involved in political
upheaval or military conflict.
Even while in
Canada, you might be approached with demands that you fulfill certain
obligations to another country of which you are a citizen. [The US IRS is
becoming very efficient at tracking down US citizens living in Canada and
demanding the past due returns. If this happens to you, the penalties can be
extreme. Better to catch up (see article from Financial Post on page 8).]
These are some
of the possible drawbacks to dual or multiple citizenship. They might not
apply to your case, but it is important to realize that serious difficulties
can arise.
AVOID
THE HAZARDS OF DUAL CITIZENSHIP
Suppose you are,
or might become a dual citizen and you feel that this could present problems
for you, your spouse or children, or others. You can do a number of things
about it.
BEFORE
applying for Canadian citizenship, you are advised to find out if you would
"retain" your present citizenship, and if this might cause
problems for you or others.
Next,
find out if you can renounce the citizenship that you do not want to retain,
and whether renouncing that citizenship removes the possible hazards.
Citizenship cannot be renounced merely by making a personal declaration to
this effect. You need to apply to the appropriate authorities of the country
concerned and obtain formal approval.
If you are or
will become a citizen of another country and are living outside Canada, you
may apply to renounce Canadian citizenship through any Canadian diplomatic
or consular post. Once you are no longer a Canadian citizen, however, you
cannot travel on a Canadian passport or benefit from Canadian assistance
outside Canada. Moreover, you cannot return to Canada as a permanent
resident without going through immigration procedures.
Above all,
avoid travelling to a country of which you are a citizen if it is likely to
cause you difficulty. [For instance, most of us know of a young American
who left the US to come to Canada because of the draft and was arrested when
going south for a funeral or just a day trip].
CONFIRM
YOUR CITIZENSHIP STATUS
Citizenship laws
are complicated. Do not assume that what applies to your friends and
relatives will apply to you as well, even though your circumstances may be
similar. Be certain about your own citizenship status. Seek information from
the officials of every country of which you may be a citizen. Start with a
Court of Canadian Citizenship in Canada or a Canadian diplomatic or consular
post abroad: advice and guidance are free, and Canadian officials will be
glad to give you information or tell you where it may be obtained. Canadian
Government pamphlet dated October, 1991
[With respect
to the Canadian Government office in Seattle, Washington, I once attended at
that office with a client when doing some research for my BORDER BOOK. I
have rarely seen such initial rude treatment in any office. Trying to phone
ahead for two days had been a futile exercise and very expensive while
trying to work my way through their electronic voice mail system. The
anonymous official said "You are here on the wrong day - read the
sign". I have heard the same statements from others about the Seattle
office which is definitely understaffed with the demands on it. I did
receive a courteous interview and obtained my information after standing my
ground.
On the other
hand, two recent trips to the US Consulate in Vancouver were handled
courteously and quickly (after waiting in a long line). The US Consulate
staff seemed to be more interested in giving out the information and the
lineup was three or four times as long. Both places are intimidating with
locked doors, bulletproof glass and even metal detectors to get into the US
Consulate inner sanctum. (However, there is also a metal detector to get
through to the office of one of Canada's Chartered banks.)]
[The
following 2 pages contain the full text of pamphlet, M-321 issued 6-84 by
the BUREAU OF CONSULAR AFFAIRS, US DEPARTMENT OF STATE, WASHINGTON, D.C.,
20524]
{PASSPORT
SERVICES
LOSS OF UNITED STATES CITIZENSHIP
RELINQUISHMENT OF CITIZENSHIP
It is the
right of every US citizen to remain a citizen until he or she intends to
give up citizenship. It is also the right of each US citizen to relinquish
US citizenship. Thus a person can lose US citizenship only if he or she
voluntarily performs an expatriating act with the with the intent to
relinquish. Expatriation is irrevocable and means that the person has
relinquished all of the rights and duties of a citizen of the United states.
Since the US Government has an interest in knowing with certainty who is a
US citizen, it has established by law the procedures for determining when a
person has relinquished his or her citizenship.
EXPATRIATING
ACTS
You cannot
lose your citizenship unless you voluntarily perform an expatriating act.
Expatriating acts are designated by law. The text of the statute containing
them is reprinted below.
INTENT
TO RELINQUISH
If you have
voluntarily performed one of the seven expatriating acts, the Government
must determine whether you did so intending to relinquish your US
citizenship. This determination is made under guidelines based upon Supreme
Court cases. The two most important cases are Afroyim vs Rusk and Vance vs
Terrazas. The essential holding of each of these cases is set out below.
The time for
the determination of the person's intent with regard to retention or
relinquishment of citizenship is the time of the performance of the
designated act. An intent formulated at any time before or after the person
performs the expatriating act may not be directly relevant to the question
of relinquishment of citizenship.
STATUTES
IMMIGRATION AND NATIONALITY ACT
(Enacted June 27, 1952, 82nd Congress, 2nd Session;
effective December 24, 1952, as amended.)
LOSS OF NATIONALITY BY NATIVE-BORN OR
NATURALIZED CITIZEN
Sec. 349.
(a) From and after the effective date of this Act a person who is a national
of the United States whether by birth or naturalization, shall lose his
nationality by ---
(1)
obtaining naturalization in a foreign state upon his own application, upon
an application filed in his behalf by a parent, guardian, or duly authorized
agent, or through the naturalization of a parent having legal custody of
such person: Provided, that nationality shall not be lost by any person
under this section as a result of the naturalization of a parent or parents
while such person is under the age of twenty-one [18 years as of October 24,
1988 or November 14, 1986 - check details] years, or as the result of the
naturalization obtained on behalf of a person under twenty-one [18] years of
age by a parent, guardian or duly authorized agent, unless such person shall
fail to enter the United States to establish a permanent residence prior to
his twenty-fifth birthday [abolished November 14, 1986]: And provided
further, that a person who shall have lost nationality prior to January 1,
1948, through the naturalization in a foreign state of a parent or parents,
may, within one year from the effective date of this Act, apply for a visa
and for admission to the United States as a non quota immigrant under the
provisions of section 101(a)(27)(E); or
(2) taking
an oath or making an affirmation or other formal declaration of allegiance
to a foreign state or political subdivision thereof; or
(3)
entering, or serving in, the armed forces of a foreign state unless, prior
to such entry or service, such entry or service is specifically authorized
in writing by the Secretary of State and the Secretary of Defense: Provided,
That the entry into such service by a person prior to the attainment of his
eighteenth birthday shall serve to expatriate such person only if there
exists an option to secure a release from such service and such person fails
to exercise such option at the attainment of his eighteenth birthday; or
(4) (A)
accepting, serving in, or performing the duties of any office, post, or
employment under the government of a foreign state or a political
subdivision thereof, if he has or acquires the nationality of such foreign
state; or (B) accepting, serving in, or performing the duties of any office,
post, or employment under the government of a foreign state or a political
subdivision thereof, for which office, post, or employment, an oath,
affirmation, or declaration of allegiance is required; or
(5) making
a formal renunciation of nationality before a diplomatic or consular officer
of the United States in a foreign state, in such form as may be prescribed
by the Secretary of State; or
(6) making
in the United States a formal written renunciation of nationality in such
form as may be prescribed by, and before such officer as may be designated
by, the Attorney general, whenever the United States shall be in a state of
war and the Attorney general shall approve such renunciation as not contrary
to the interests of national defense; or
(7)
committing any act of treason against, or attempting by force to overthrow,
or bearing arms against, the United States, violating or conspiring to
violate any of the provisions of section 2383 of title 18, United States
Code, or willfully performing any act in violation of section 2385 of title
18, United states code, or violating section 2384 of said title by engaging
in a conspiracy to overthrow, put down, or to destroy by force the
Government of the United States, or to levy war against them, if and when he
is convicted thereof by a court martial or by a court of competent
jurisdiction.
Sec. 349
(b) Any person who commits or performs any act specified in subsection (a)
shall be conclusively presumed to have done so voluntarily and without
having been subjected to duress of any kind, if such person at the time of
the act was a national of the state in which the act was performed and had
been physically present in such state for a period or periods totalling ten
years or more immediately prior to such act.
(c)
Whenever the loss of United States nationality is put in issue in any action
or proceeding commenced on or after the enactment of this subsection under,
or by virtue of, the provisions of this or any other Act, the burden shall
be upon the person or party claiming that such loss occurred, to establish
such claim by a preponderance of the evidence. Except as otherwise provided
in subsection (b), any person who commits or performs, or who has provisions
of this or any other Act shall be presumed to have done so voluntarily, but
such presumption may be rebutted upon a showing, by a preponderance of the
evidence, that the act or acts committed or performed were not done so
voluntarily. (subsection (c) was added be sec 19 of the Act of Sept 26, 61
(75 Stat 656).
RESTRICTIONS
ON EXPATRIATION
Sec 351 (a)
Except as provided in paragraphs [(6)], [(7)] of section 349 (a) of this
title, no national of the United States can expatriate himself, or be
expatriated under this Act while within the United States or any of its
outlying possessions, but expatriation shall result from the performance
within the United States or any of its possessions of any of the acts or the
fulfillment of any of the conditions specified in this chapter if and when
the national thereafter takes up residence outside the United States and its
outlying possessions.
(b) A
national who within six months after attaining the age of eighteen years
asserts his claim to United States nationality, in such manner as the
Secretary of State shall by regulation prescribe, shall not be deemed to
have expatriated himself by the commission, prior to his eighteenth
birthday, of any of the acts specified in paragraphs (2), (4) and (5) of
sec. 349 (a) of this title.
REVOCATION
OF NATURALIZATION: FOREIGN RESIDENCE
Sec 340
(d). If a person who shall have been naturalized shall, within five [now one
year] years after such naturalization, return to the country of his
nativity, or go to any other foreign country, and take permanent residence
therein, it shall be considered prima facie evidence of a lack of intention
on the part of such person to reside permanently in the United States at the
time filing his petition for naturalization, and, in the absence of
countervailing evidence, it shall be sufficient in the proper proceeding to
authorize the revocation and setting aside of the order admitting such
person to citizenship and the cancellation of the certificate of
naturalization as having being obtained by concealment of a material fact or
by willful misrepresentation, and such revocation and setting aside of the
order admitting such person to citizenship and such cancelling of
certification of naturalization shall be effective as of the original date
of the order and certificate respectively. The diplomatic and consular
officers of the United States in foreign countries shall from time to time,
through the Department of State, furnish the Department of Justice with
statements of the names of those persons within their respective
jurisdictions who have been so naturalized and who have taken permanent
residence in the country of their nativity, or in any other foreign country,
and such statements, duly certified, shall be admissible in evidence in all
courts in proceedings to revoke and set aside the order admitting to
citizenship and to cancel the certificate of naturalization.
APPLICATION
OF TREATIES; EXCEPTIONS
Sec. 357.
Nothing in this title shall be applied in contravention of the provisions of
any treaty or convention to which the United States is a party and which has
been ratified by the Senate upon the effective date of this title: Provided,
however, That no woman who was a national of the United States shall be
deemed to have lost her nationality solely by reason of her marriage to an
alien on or after September 22, 1922, or to an alien racially ineligible to
citizenship on or after March 3, 1931, or in the case of a woman who was a
United States citizen at birth, through residence abroad following such
marriage, notwithstanding the provisions of any existing treaty or
convention.
DEFINITIONS
Sec. 101
(a) of the Immigration and Nationality Act reads in part:
(21) The
term `national' means a person owing permanent allegiance to a state.
(22) The
term `national of the United States' means (A) a citizen of the United
states, or (B) a person who, though not a citizen of the United States, owes
permanent allegiance to the United States.
(23) The
term `residence' means the place of general abode of a person means his
principal, actual dwelling place in fact, without regard to intent.
CASES
Afroyim v.
Rusk, 387 US253 (1967)
The Supreme
Court held that Congress does not have the power under the Constitution to take away a
citizen's citizenship without his or her assent.
Vance v.
Terrazas, 444 US252 (1980)
The Supreme
Court held that to establish loss of citizenship, the Government must prove
the person not only voluntarily performed the expatriating act but intended
to relinquish citizenship. It added that the intent may be shown by the
person's words or proven conduct.
PRESERVING
UNITED STATES CITIZENSHIP
If you have
performed or intend to perform an expatriating act, or if you have any
questions concerning the rights or duties of citizenship, the nature of the
statutory expatriating acts, or the question of intent to relinquish
citizenship, you are urged to contact any of the following offices:
If abroad,
the nearest US Embassy or Consulate;
If in the
United States, one of the following divisions of the Office of Citizens
Consular Services, Department of State,
Washington,
D.C. 20520:
African
Services Division (202) 632-4994
Inter-American
Services Divisions (202) 632-3712
East
Asian/Pacific Services Division (202) 632-3675
European
Services Division (202) 632-3444
Near
Eastern & South Asian Services Division (202) 632-6680
Or one of
the US Passport Agencies following:
US
PASSPORT AGENCIES
Boston
Passport Agency Suite E123 John F. Kennedy Building Government Center
Boston, Massachusetts, 02203
Chicago
Suite 380 Kluczynski Federal Building 230 South Dearborn Street Chicago,
Illinois, 60604
Honolulu
Room C-106 New Federal Building 300 Ala Moana Boulevard Honolulu, Hawaii,
96850
Houston One
Allen Center 500 Dallas Street Houston, Texas, 77002
Los Angeles
Suite 13100 Federal Building 11000 Wilshire Boulevard Los Angeles,
California, 90024
Miami
Passport Agency Room 1616 Federal Office Building 51 Southwest First Avenue
Miami, Florida, 33130
New Orleans
Room 400 International Trade Mart 2 Canal Street New Orleans, Louisiana,
70130
New York
Passport Agency Suite 270, Rockefeller Center 630 Fifth Avenue New York, New
York, 10111
Philadelphia
Room 4426, Federal Office Building 600 Arch Street Philadelphia,
Pennsylvania, 19106
San
Francisco Suite 200 525 Market Street San Francisco, California, 94105
Seattle
Passport Agency Room 992 Federal Building 915 Second Avenue Seattle,
Washington, 98174
Stamford
Passport Agency One Landmark Square Broad and Atlantic Street Stamford,
Connecticut, 06901
Washington
1425 K Street N.W. Washington, D.C., 20524}
Parts of this
are copyrite of either the US or the Canadian Government.
[Opinion and
comment text copyright David Ingram. If you have any comments, additions,
corrections, deletions or other suggestions that your own personal
experience has shown should be a part of this, please communicate those
changes to me at the address at the bottom of this page.
NOTES
August 31,
1992 - The US Consul in Vancouver has left it up to the IRS to comment on
any tax matters in this pamphlet and only commented that the immigration /
dual citizenship is handled on an individual basis.
October 8,
1993 We have not had an official comment from the IRS. Various individuals
including high ranking officials have thanked me for the copy as it has
helped them understand the rules.
If you do not
wish to receive this, please inform us at your earliest convenience. Refunds
will be given on a pro-rata basis.]
On the other
hand, if YOU have a situation you would like included, I welcome all
submissions and will give editorial credit.
the CEN-TA
GROUP
