With thanks to tiger who alerted me to this, I am linking two posts authored by Stephen Flott of Flott & Co. PC The Accidental US Citizen. It furthers discussion we have been having here on these very questions for “Accidental Americans.”
[If the following legal opinion is correct, finally I will have done something right (in the US realm) for my developmentally delayed adult son by not having registered his “US Birth Abroad.” And, if this is true, I’ve just ducked damage by a major flood in southern Alberta and nonsensical US tax and reporting compliance for my son for the rest of my life and his — my good KARMA vessel is getting low. Of course, this is just one subset of those deemed “Accidental Americans.” In my common-sense view, NONE of ‘supposed’ US Persons Abroad who are somehow classified as “Accidental Americans” who had no choice to whom they were born or where they were born should be caught up in the absurdity. The only way to solve that is a change by the US to Residence-Based Taxation. Let’s get real; let’s get fair.]
Accidental American – US Citizenship: Self-Executing or Not? (May 23, 2013)
Ms. X was born in the United States. She is a US citizen by birth. Her US citizenship is self-executing and non-consensual. Her birth certificate is all that is needed to establish her citizenship.
Let’s say she goes to Canada and enters as a landed immigrant. Her entry into Canada as a landed immigrant is not itself an expatriating act. Section 349(a)(1) and (2) of the Immigration and Nationality Act provide that swearing an oath of allegiance to a foreign sovereign is an expatriating act if taken with intent to set aside US citizenship. As soon as Ms. X swears the Canadian citizenship oath before a Canadian Citizenship Court, she will become a Canadian citizen. If she swears the oath with intent to set aside her US citizenship, she will then complete a Form DS-4079 and establish that she relinquished her US citizen upon becoming a Canadian citizen. Her oath of allegiance to Canada is sufficient when combined with her statement of intent to extinguish her US citizenship. However, the mere fact of becoming a landed immigrant is not sufficient as it does not involve the taking of an oath of allegiance and thus, by itself, is not sufficient to expatriate her.
Mr. Y was born in Canada to a Canadian father and a US citizen mother who resided in the US long enough to give her the right to pass on US citizenship to him. However, his mother takes no steps to register his birth abroad or otherwise assert US citizenship and he has not done so either. Mr. Y is not a US citizen automatically, that is, his citizenship is not self-executing. The language in the Section 301(a) states: “The following shall be nationals and citizens of the United States at birth:” [at which point the section lists seven subcategories, including subsection 7 dealing with children born outside the United States “of parents one of whom is an alien, and the other a citizen”]. Most people, including virtually all US lawyers interpret the “shall” to be mean Mr. Y automatically became a US citizen at birth.
However, I believe that “shall” in the context of subsection 7, where one of the child’s parents is not a US citizen and the child has obtained citizenship by birth or heritage of a country other than the United States, to mean that the child has the absolute right to US citizenship upon providing adequate proof of his heritage AND that his US citizen parent meets the residence requirements of the section.
However, Mr. Y’s citizenship is not “self-executing”. Someone must do something to establish his citizenship. His mother did not obtain a certificate of registration of birth abroad before Mr. Y turned 18 and cannot now do so. Mr. Y has not yet sought to assert US citizenship by obtaining proof of same which he would do by obtaining a US passport. That process would require him to present evidence of his US citizenship. He is, of course, free to do that at any time he wishes. However, until he takes some action, his US citizenship in an “inchoate right”, that is, something that he can assert and cannot be taken away from him by the US government. Clearly, he must be a “citizen” to obtain a passport. However, being “entitled” to citizenship is not the same as “being” a citizen. In other words, US citizenship in Mr. Y’s case is not self-executing.
In the absence of any action taken by Mr. Y, the question then turns to whether the US government could force him to obtain a US passport. Indeed, there is no case in which the US government has forced a person in Mr. Y’s position to obtain a US passport. Thus, the “automatic” citizenship position fails. The real question turns on whether US citizenship for those born outside the United States is mandatory. Clearly, it is not.
As a practical matter, Mr. Y has nothing in his official citizenship file in the United States. His Canadian passport indicates a place of birth in Canada. Thus, there is no outward evidence that he is a US citizen and, in the absence of obtaining a US passport, nothing to identify him as a US citizen. Both as a legal and practical matter, Mr. Y is not a US citizen and is not identifiable as a US citizen. He may, of course, choose to apply for a US passport and will undoubtedly obtain one should he do so.
and
Citizenship Article Series: US Birthright Citizenship (June 13, 2013)
Birthright Citizenship — The Absolutely Clear Case
All persons born within the borders of the United States are citizens. It does not matter if their mothers were in the U.S. legally (as tourists, for example) or illegally, or whether the children leave the United States the day they were born. It bears repeating: all persons born in the U.S. are automatically citizens. This is the absolute citizenship situation.
I left this comment, which is awaiting moderation:
calgary411 | June 29, 2013
Your comment is awaiting moderation.Thank you for this blog entry. We are discussing the very same at Comments. I will post as a new thread your above article. I am awaiting confirmation from Sylvia D. Johnson, General Consul, US Embassy in Ottawa, Canada that advice given in three instances as reported at Isaac Brock is indeed correct — that they do not have to go through the process to obtain US citizenship if they were not registered as births abroad to US parents to then be able to renounce that US citizenship.
We all (especially “Accidental Americans” born in a country abroad to US parent(s) but not registered as US births abroad) need absolute clarification on if there is an OPTION of US citizenship, to not be blindsided by the US further down the line (worst-case scenario). I want to know:
Is a person born abroad to US parents (with all the time definitions) automatically a citizen from the time of birth?
OR
Does that person have to a claim to US citizenship if he/she so chooses upon becoming an adult?I know that many don’t think this necessary, but I’d rather go forward with an absolute answer. I just think a big segment of US Persons Abroad should not have to find work-around’s to live normal lives in other countries. Why don’t we absolutely know?
@YogaGirl
I believe the government is admiting it has no right in that letter…..
Just like the decision to renounce your citizenship, the decision to reclaim it is yours alone. No one, including the U.S. Government, any other government, or even your own family can make the decision for you. Please keep this in mind as you consider whether you may want to make a claim of citizenship once you become 18.
The U.S. Government and the Department of State do not wish to influence your decision. We just want to make sure that you know that you have the right to reconsider and “take back” this decision upon reaching the age of 18.
It’s never occurred to many that someone might not want US citizenship, that it is considered a liability. Canada does the same, transmits citizenship through descent, yet who wouldn’t want to be Canadian, eh?
Roger, re “A child is AUTOMATICALLY granted citizenship if…”. I don’t trust that someone making a submission to Wikipedia wouldn’t omit a subtle yet important piece of information, like “A child is AUTOMATICALLY entitled to citizenship if…”
This is a very interesting and important thread which has caused me to think carefully about this. My belief is that children born outside the U.S. to U.S. parent(s) are NOT automatically U.S. citizens.
The main reason for this:
To deem a person born outside the U.S. to U.S. parents is an improper extra-territorial application of U.S. law. Why not let Russia deem people born in the U.S. to be Russian citizens?
There are additional arguments. See here:
http://renounceuscitizenship.wordpress.com/2013/07/02/cook-v-tait-10-those-born-outside-the-us-are-not-automatically-us-citizens/
“As a general principle, the U.S. has no right to deem persons born outside the U.S. to be U.S. citizens. On the other hand, the U.S. is free to invite those born outside the U.S. to become U.S. citizens.
Does it make a difference if the child is born to a U.S. citizen parent?
The short answer is: No it does not. Why would it?
Regardless of parentage, the person was born outside the U.S. and therefore outside its jurisdiction. The citizenship of the parent does not change the fact of being born outside the U.S. How can the fact that the parent is a U.S. citizen be used to deem the child to be a U.S. citizen? Shouldn’t citizenship be a matter of choice? One would think so.
…
I believe that Mr. Flott’s interpretation is correct. S. 301 of the INA is simply stating the conditions under which the U.S. will grant U.S. citizenship to those born abroad of U.S. citizens. S. 301 is simply stating the conditions under which the U.S. grants an option of U.S. citizenship to a certain group of people. It is an option available to the groups described in S. 301. The option need not be exercised.
Here are my reasons:
1. S. 301 appears as part of the Immigration and Nationality Act. The act as a whole assumes that everybody in the world wants to either be a U.S. citizen or have a Green Card. The INA confirms the assumption that any person entering the United States does so with the intent to immigrate. In other words, the INA:
– adopts an operating presumption of keeping people out of the United States; and
– specifies the narrow terms under which the presumption will be rebutted and the people will be allowed either a Green Card or U.S. citizenship.
Congress cannot refuse those born in the United States. Congress can set the rules for everyone else.
Therefore, S. 301 should be understood to mean:
“In a world where we assume that everybody wants to to a U.S. citizen, these are the conditions under which we will ALLOW you to have U.S. citizenship, if you want it”.
2. The general assumptions with regard to citizenship are that citizenship is a status that belongs to the person and NOT to the government.
Examples Include:
A. Even for those born in the U.S., the Supreme Court has confirmed in Afroym v. Rusk that U.S. citizens born or naturalized in the U.S. have the right to relinquish their citizenship.
B. S. 15 of the Universal Declaration of Human Rights confirms the right to change nationality. Nobody should be forced to be a citizen of a country.
3. The general presumption that laws are presumed to not have extra-territorial effect and that Congress would intend to legislate within its jurisdiction
The ambiguous position of the State Department
The State Department has jurisdiction over and administers citizenship, passports, etc. The State Department is subject to S. 301 of the INA Act. Therefore, their conduct reflects their understanding of the meaning of S. 301. That does not make them correct. The way the State Department administers and interprets the law is important. It is NOT binding. How does the State Department interpret the words:
“The following shall be nationals and citizens of the United States at birth:”?
Practice as evidence of the position of the State Department
The position of various consulates does NOT appear to be consistent. For example, the experience at the Toronto, Consulate suggests that citizenship is a right but is not mandatory. American Citizens Abroad has reported instances where people after seeking a U.S. work permit were told they WERE U.S. citizens and were advised to seek a U.S. passport (suggesting that some Consulates are understanding citizenship to be mandatory). Interestingly the U.S. Embassy in London has a presentation titled “Reporting The Birth Abroad of a U.S. Citizen“.
Written evidence of the position of the State Department
Written clues of their position include:
1. The U.S. Citizenship and Immigration Site (Official Government site which is a “Gold Mine” of information) says:
“There are two general ways to obtain citizenship one at birth and one after birth …
If one is to “obtain” citizenship, one must start without it.
A relevant section of the Policy Manual of the USCIS (“United States Citizenship and Immigration Service”) Policy Manual includes:
– language in reference to those born in the U.S. that says a person born in the U.S. “is a citizen at birth”; and
– language in reference to those born outside the U.S., to a least one U.S. citizen parent that says “may acquire citizenship at birth”.
There is a clear distinction between the status of “is a citizen at birth” (born in the U.S.) and “may acquire citizenship at birth” (born outside the U.S).
2. The State Department uses the language ”acquires” or “may acquire”
Isn’t “acquire” a synonym for the word “obtain”. To “acquire” or “obtain” citizenship one must start without it. Hence, I interpret the written guidelines from the State Department to suggest that U.S. citizenship is NOT automatic for those born outside the United States.
Although it is NOT a model of clarity, the State Department does NOT appear to use language suggesting that one is automatically a citizen.
Conclusion …
Given the inconsistency in practice coupled with the ambiguous language in written directives from the State Department, and the USCIS policy manual, one can credibly argue that:
For those born outside the United States, citizenship is NOT automatic but must be claimed. At the present time, there is no acknowledgement from the State Department which specifically confirms this position.
The only certainty is the uncertainty of the situation.
Practical options for those born outside the U.S. who have never claimed U.S. citizenship
1. Simply take the position that – regardless of U.S. law – you are NOT a U.S. citizen. This requires committing to the position that the U.S. cannot in an extra-territorial manner deem you to be a U.S. citizen.
2. If you accept that the U.S. has jurisdiction over people born abroad to U.S. citizens (you believe that U.S. extraterritorial laws are valid) then you need to decide whether S. 301 means that the U.S. has claimed you as their citizen or whether you have an option but not an obligation to become a U.S. citizen. This means that you must choose one of the following courses of action.
Options available if you interpret S. 301 to be an offer of citizenship
– take the position that you don’t accept their offer of citizenship no matter what;
– investigate whether you have met the legislative requirements (example parental residency, marital status or citizenship of parent(s)) to accept U.S. citizenship. If not then you can’t accept their offer of citizenship anyway.
– if you have met the legislative requirements then you can either accept their offer of citizenship or refuse their offer of citizenship;
Consequence of believing that persons born abroad to U.S. citizens are automatically U.S. citizens
– if you accept their jurisdiction over you and that you have met the factual prerequisites for U.S. citizenship then you accept that you are a U.S. citizen. You must then settle in for a life of tax servitude, threats of penalties, life restrictions and inconvenience. The truth is that you will not have a life.
Practical option for those who are definitely a U.S. citizen
If at the end of the day you decide you are a U.S. citizen and they know you are a U.S. citizen (you have been filing taxes, etc.) then you can consider the relinquishments provisions in S. 349 of the INA. If you are a U.S. citizen, remember the advice of one lawyer:
“Get out while the getting out is semi-good.”
So ….
If you were born outside the U.S. and have never considered yourself to be a U.S. citizen, you should take no affirmative steps to confirm (or not) U.S. citizenship until this issue has been resolved with certainty.
You should NOT apply for a U.S. passport, file U.S. taxes, obtain a U.S. Social Security Number, or do anything that could be construed as evidence that you believed you are a U.S. citizen.
Lie low!
@USCitizenAbroad, the bank may insist on clarification however, if it’s indicated you may be a US citizen. Be prepared to having to obtain a document saying you aren’t!
What about the fact these Canadians at birth would have inherently divided loyalties forced upon them by US tax policies, making them liabilities to Canada?
Here’s the official US State Department website information with regard to the child born to a US citizen outside of the US. It uses the language “acquires US citizenship at birth.” Unlike Wikipedia, it does not use the word “Automatically” but except for the few exceptions listed the use of the words “acquires US citizenship at birth” is intended to mean just that. You don’t have to claim it in order to acquire it, and the fact that you do not claim it does not mean that you don’t have it. The fact that you were “born” means that you have acquired it. The “may” exceptions when the child does not acquire citizenship are described quite clearly on this State Department website. One of these exceptions in NOT failure to register the child at a US consulate.
http://travel.state.gov/law/citizenship/citizenship_5199.html
To those who have contacted a US consulate in writing asking for a clarification in writing, my recommendation is that you keep up the pressure for an answer. An answer that reveals anything different than what is on this website would be worth its weight in gold.
Quite obviously this legislation was written by legislators who believed that US citizenship was something nobody with a sane mind would ever turn down. Little did they realize that that what they considered to be a blessing could turn out to be a curse, because of US tax laws which are unmerciful on those born abroad who have absolutely no connection with or any desire to live in the United States.
How then can the child of US citizen abroad not let anybody know that he has US citizenship? About the only way is to lie low. Never tell anybody. I don’t know about birth certificates issued in Canada as to whether they indicate the nationality of the parents. In come countries they do and in those cases your cover could be blown if you show your birth certificate to someone who wants to know the nationality of your parent or parents. And conceivably a person could be born abroad to a US citizen who, as described on this website, is one of the few exceptions who cannot transmit US citizenship to a child born abroad.
I recall one case several months back on IBS of a US-born Canadian citizen presenting his Canadian passport at the border, along with his son who was born in Canada. The border officer told him that born in the US he was a US citizen unless he had a CLN to prove that he no longer was. He then ask him, pointing to his son, “is he your son? ” Upon receiving an affirmative answer the officer then informed him that his son was a US citizen also. He would never have known if this question had not been asked and answered truthfully. This truthful answer blew the cover of the son.
It is indeed a Can of Worms.
@Bubblebustin
Okay, so you give them a letter saying that you:
1. Were not born in the U.S.
2. You never claimed U.S. citizenship
3. You have never applied for a U.S. passport.
I think your second point is useful in arguing for the correct interpretation of S. 301
But, I really think the best argument is that for the U.S. to deem somebody born outside the U.S. as a citizen is an wrongful extra-territorial application of U.S. law.
Finally, I think this is an issue that needs to be part of the FATCA IGA negotiations.
In the meantime, check out latest news: http://isaacbrocksociety.ca/2013/07/03/breaking-news-for-your-4th-of-july-celebrations/
Additional, somewhat tongue-in-cheek options to those born outside US of US parent(s).
– Say the Canadian milk man knocked up Canadian mom, not your US “dad”. Tell US to prove otherwise.
– Say Canadian mom used 100% Canadian donor sperm, rather that US “dad’s”. Tell US to prove otherwise.
– Say US mom used 100% Canadian donor eggs, rather that her own. Tell US to prove otherwise.
See http://travel.state.gov/law/citizenship/citizenship_5177.html – “Important Information for U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad”.
@Roger
As you point the legislation is written from the perspective of providing conditions to accept all those people as citizens who are simply dying to be citizens. The legislation simply does not contemplate any other situation. The question is how to interpret S. 301 when someone does not want to be a citizen.
Afroym lends support to the principle that people can’t be forced to be a citizen.
But, leaving all that aside, citizenship is a collection of obligations and benefits. To deem someone born outside the U.S. as a citizen is:
– imposing U.S. in an extra-territorial manner; and
– imposing responsibilities/liabilities on them.
Clearly the U.S. could not do this to somebody born in Russia to non-U.S. parents. How does the fact that the parents are U.S. change this?
@USCitizenAbroad, you state that for the US to consider that the person born abroad to a US citizen parent is a US citizen is basically wrong. The US is not alone in taking this positon. I believe children born abroad to Canadian parents are also Canadian citizens, are they not? Or do they have to appliy for Candian citizenship.
Many countries, including most of the countries in Europe do not grant citizenship to persons born within their borders unless one of the parents is a citizen of that country. In switcerland, for example, it is my understanding that a person born there for example to US citizen parents is considered to be a US citizen.
If the country of citizenship of the parents does not allow them to transmit citizenship to children born outside of the country and the child is born in a country which does not grant citizenship simply because they were born there, then such persons are without citizenship in any country And this happens to more than a few. I have personally known one person who fell into this category a child born to Russian Parents who had fled the Soviet Union for Shanghai after the 1917 revolution. He was born in Shanghai at a time when Chinese citizenship was dependent, not on place of birth but exclusively on both of the parents being Chinese without respect to where they were born. The USSR no longer recognized his parents as citizens of that country. At the time of the Communist revolution in China they somehow managed to leave and get to Brazil as refugees without a country – citizens of no country. They were allowed to stay and eventually became naturalized Brazilian citizens.
With no passport issued by any country such persons can be stuck. Without a nationality they can’t be deported to their country of citizenship because they have none..
The fact that there is no uniformity of criteria on transmitting citizenship to children born abroad makes the whole situation very complicated indeed.
@Roger
“If the country of citizenship of the parents does not allow them to transmit citizenship to children born outside of the country and the child is born in a country which does not grant citizenship simply because they were born there, then such persons are without citizenship in any country”
Agreed – the U.S. parents of someone born abroad can transmit citizenship (in most cases) to the child. The issue is whether the child is required to accept it. My belief is the child does not have to accept it. Granted there would be strong incentives to accept the citizenship of the failure to do so would make the person stateless.
I really don’t see a problem here. The U.S. simply has some rules that state when the U.S. is willing to grant citizenship to someone that does meet one of he 14th amendment tests. To say that the U.S. will grant citizenship doesn’t mean the U.S. can impose it or person has to accept it.
If they can’t force citizenship on someone born or naturalized in the U.S. (renunciation appears to be a constitutional right) how can they force it on somebody who was not born or naturalized in the U.S.
There is a huge public policy issue here. We know that because of FBAR, 5471, etc. U.S. citizens in foreign countries are obligated under the law to report information on that country to the IRS. Think of the case of David Alward (New Brunswick Premier).
@Roger Conklin
I was born in 1956 in the US, the child of a Canadian living in the US. When I moved to Canada with my Canadian mother I did so as a landed immigrant of Canada as my mother hadn’t registered me as a Canadian birth abroad before I was two. In 1996 I became a Canadian citizen. In 2009, changes were made to the Canadian Citizenship Act that allowed me, and those like me to become Canadian citizens at birth. At the stroke of a pen, the Canadian government exempted me and many others with US citizenship from the US exit tax. Interestingly, it was done one year after the exit tax was implemented by the USG. Is this merely a coincidence?
Regardless of the fate of FATCA, this whole discussion has increased the number of issues in the next Canada U.S. tax treaty. At a minimum any U.S. Exit Tax must an exit tax on assets located in Canada and grown in Canada. The list of other things goes on and on but needs to include mutual funds, etc.
Canada should give all naturalized citizens the option of backdating their Canadian citizenship to birth. This is necessary to protect the Canadian economy from a predatory U.S. government.
Good article up on Opinio Juris by Peter Spiro called This July 4th, Exploring Paths Away From Citizenship: http://opiniojuris.org/2013/07/03/this-july-4th-exploring-paths-away-from-citizenship/
Peter is the author of Beyond Citizenship (an excellent read that can be found here http://www.amazon.com/books/dp/0195152182) He also writes for Opinio Juris and the New York Times. He asked me for the scoop on relinquishment and I, of course, sent him here. 🙂 I think he did a very good job of describing the situation in the limited space he had. Might be worth going over and dropping off a comment if you considering renouncing/relinquishing (or already have).
@bubblebustin, since you were born in the US you were a US citizen at birth. Even though the Canadian government enacted legislation that made your Canadian citizenship retroactive to birth, I am not sure I understand how this exempted you from the US exit tax, since, according to the US Nationality Law you are a US citizen from birth and remain a US citizen until you renounce or it is rescinded and you have a CLN issued by the State Department confirming that you are no longer recognized by the US to be a US citizen. The effective date for your loss of US citizenship is the date on the CLN.
The enacting of legislation by Canada making your Canadian citizenship retroactive did not deprive you of your dual nationality US citizenship as far as the US is concerned.
@ Benedict Arnold
sent your message from the queen to an American friend
this was a reply
”Oh so funny.
I will not drive on the other side. I have enough trouble driving through
roundabouts now. (note new word. I’m preparing for the change.)
I don’t care about beer. Never drink it.
Any Prime Minister will be better than the group we have now and cannot get out of office.
I just acquired a new vegetable peeler. (free for watching a demo in the super market.)
Don’t care about football”
Mass is one of the few states that has roundabouts, locally referred to as a rotary of traffic circles
Americans as individuals are friendly, kind and most have a good sense of humour The smart ones share our fear of the USG
@Patricia
Glad it made someone’s day…
It helps to remind people about the irony of the Boston -1773 TEA PARTY…(coincidentally where I was born)
“The colonies refused to pay the levies required by the Townsend Acts claiming they had no obligation to pay taxes imposed by a Parliament in which they had no representation”
@Benedict Arnold,
If it comes to public demonstrations outside US consulates and embassies, the quote “…“The colonies refused to pay the levies required by the Townsend Acts claiming they had no obligation to pay taxes imposed by a Parliament in which they had no representation”..” belongs on a great BIG placard. I don’t give a damn whether the IRS considers that one of its forbidden frivolous arguments. The truth in it as it applies to minors and dependents born and living outside the US, as well as adults outside the US is irrefutable. Particularly as the states determine who can even register to vote – and some born outside the US will NEVER be able to vote from abroad – but are ALWAYS and FOREVER deemed ‘US taxable persons’. Greencard holders and ex-greencarders, plus snowbirds and others who are deemed taxable, but are not US citizens can never ever vote in the US. Hence, there is indeed taxation without representation. And if FBAR penalties are NOT Taxation per se, then we’ve got NON-citizens and NON-voters being penalized or threatened for non-taxable events (i.e. the mere ownership or co-signatory status on a financial or other account geographically located outside the US). No representation there, and no taxable event.
@Roger
I did not relinquish in 1996, and I haven’t yet renounced US citizenship.
As for the exit tax and dual citizenship at birth, Phil Hodgen explains it best:
http://hodgen.com/dual-citizen-exit-tax/
@bubblebustin, it is well written and very clear, but it sounds like about as much fun as getting a root canal without anesthetic. I wonder if the IRS will accept the Canadian “retroactive to birth” legislation so that even though you were not a Canadian from birth when you are born you have been made so retroactively.
How US law can put persons in a situation like yours through such torture is bed the limits of human logic to understand.
Early in assessing all of my options I was investigating the dual citizen exemption. My issue was that, at the time I was born, Switzerland did not extend citizenship to the children of Swiss mothers and foreign fathers born outside Switzerland but did to the children of Swiss fathers and foreign mothers. This discrimination was halted and amended retroactively at which point I received Swiss citizenship upon application.
My concern was the wording on 8854 which asks “Did you become at birth a U.S. citizen and a citizen of another country…” A literal reading might suggest it is referring to a particular date. Meanwhile, DS-4079 asks the question slightly differently “Are you a national or citizen of another country… If yes, did you acquire that citizenship in the foreign country by: (i) Birth (ii) Marriage (iii) Naturalisation or registration.”
I emailed Phil Hodgen and asked whether I could answer in the affirmative on 8854 and the response I got from one of his colleagues was that the route would not be “bulletproof”. Given my desire for a certain and clean break and that pursuing this path would have required relocating to Switzerland, I closed this option off.
The latest Canadian Citizenship Certificates now show your “effective date of citizenship”. I am in the same position as bubblebustin – retroactive Canadian from birth. I applied for an updated certificate and it shows my “effective date of citizenship” as being my date of birth. A literal reading of this is that I became a Canadian citizen at birth. Since Canada decides who is and is not a Canadian citizen (the US sure doesn’t) and Canada says I’m a Canadian citizen from birth, then I’m not sure what grounds the US would have to say otherwise. Note that the US has also made retroactive citizenship laws.
My 2 cents.
@Roger & Edelweiss
It certainly mind-blowing, isn’t it? Whether I am a Canadian citizen at birth is really fortunately a moot point (or is that ‘unfortunately’) as I do not meet the asset threshold to incur the exit tax. I consider myself a Canadian at birth and I’d love to hear any justification as to why I’m not. In any case, it wouldn’t apply to my husband as he was born in Canada.
From what I read on another of Mr Hodgen’s posts, he also thinks it may be more than a coincidence that Canada changed its Citizenship Act the year after the exit tax was introduced in the US.
@tdott
It’s great that Canada documents that. Your solution wasn’t available to me as the date the Swiss embassy gave me was not my birth date.
@tdott
That’s music to my ears.