October 1993 CEN-TAPEDE - Dual Citizens - Canada/US

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

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