52 thoughts on “Frustration abounds as answers are not received: “Accidental Americans” born abroad to US parent(s) and not registered with the US: Are they AUTOMATIC US citizens OR do they have THE OPTION to claim US citizenship when they can make that decision as an adult?”

1. aaa123, I will send you an email (I have access to your email address as I am an administrator that goes in time to time each day to delete the considerable amount of spam this site receives.) Then, you can reply to that email.

2. Bruce Newman has provided information that the US Embassy in Ottawa was not able to ascertain, the answer to the question I’ve been asking.

   This shows me that regulations in the US are too damn complex: THE LEFT HAND DOESN’T KNOW WHAT THE RIGHT HAND IS DOING!!!!

   Thank you very much, Bruce Newman: http://isaacbrocksociety.ca/2013/07/08/article-implies-born-abroad-to-us-citizen-parent-not-automatically-us-citizen/comment-page-1/#comment-425225

3. Not That Lisa! : You need to contact lawyer Luigi Paiano. http://www.luigipaiano.com/eng/ He is helping numerous Italian citizens who are unable to prove their claim to jus sanguinis citizenship through the consular method for various reasons.

4. In answer to the question about US nationality of children born abroad: There are two kinds of US citizenship (apart from noncitizen nationals): Constitutional, i.e. 14th Amendment, citizens born in the 50 States, and Statutory (i.e. according to enacted law) citizens born in an outlying territory or born abroad to US citizen(s) who have lived for the qualifying period in the US (or abroad as a USG employee, military member or dependent). Or by naturalisation or adoption.

   (One can argue that persons born or naturalized in Puerto Rico have a subset of statutory citizenship because unlike all other US citizens, they are subject only to PR mirror tax and PR estate duty and not taxes levied by the IRS on their PR assets and income.)

   Generally one is either a US citizen at birth or not. The question arises when proof of facts is difficult: there are many cases of persons born in Mexico where the issue is did the (Mexican-American or Native American) parent live for the qualifying period (or could she have, if she is under age 16 and thus didn’t live for 2 years in the US after reaching age 14). Or, if unmarried, did the mother live for one continuous year in the USA without leaving (unlikely if she lived in a border town, but the State Department has been known to accept the allegation as fact).

   It is general international law that a person cannot have imposed on him or her a nationality without consent EXCEPT at the time of birth, adoption or (before about the 1960s) marriage.

   But today the only “optional” acquisition of US nationality is by a person born abroad to a US father, where an application for citizenship, accompanied by proof of paternity, is made prior to age 18. (Interesting point here since the USA is a major exporter of genetic material (otherwise known as “semen”) for IVF in other countries, such as the UK, where trade in genetic material is strictly circumscribed.)

   On the other hand: if a birth abroad to a US parent that attributes US nationality to the child is not reported to a consular official, how will the State Department know that the person is a US citizen. And would the child still be a US citizen entitled to a passport anytime in later life? Setting aside the political aspects of the case, have a look at the story of Simas Kudirka https://duckduckgo.com/?q=Simas+Kudirka The answer is “yes”.

   Since the War, citizenship has come to be seen as a source of rights, and much less as a source of obligations. The rather onerous tax obligations (in terms of reporting and draconian penalties for nonreporting foreign assets and income on Forms 1040 Sch B, FBAR, 3520 and 5471) imposed on US citizens with little or no other connection to the USA are an anomaly. It is unlikely that the US Supreme Court would address the issue. But no foreign country is obliged to treat a dual (or multiple) national who holds their citizenship as anything but their citizen. (There were treaty exceptions under consular agreements between the USA and Eastern European countries relating to naturalized US citizens visiting their country of birth as short-term visitors on tourist visas.) The European Court of Justice went further and imposed an obligation on Member States to honor any citizenship of another Member State over a third-country nationality (Micheletti v. Delegación del Gobierno en Catabria).

   The Canada-US tax treaty provides for mutual collection of taxes except where the target person is a citizen of the requested state. This is consistent with the Rule I stated, and I wonder how cooperative the Government of Canada (or Switzerland, etc.) will be in assisting the IRS and its diplomatic attachés abroad in the enforcement of exorbitant US tax laws. Bear in mind that the exchange of tax information, on request or automatically via mass data transmission, is quite ordinary.

   But the IRS has no standing to assert the existence of US nationality where the target person has never availed himself of an attribute of US nationality, especially where s/he denies facts necessary to having acquired it. (It is, of course, a violation of law for a US citizen to enter the country without US documentation, but unless one’s name appears in a lookout, a passport record or the Treasury Enforcement Communications System (and see Internal Revenue Manual § 5.1.18.14) how will they know? Denunciation is the main way, and that in fact is how many “tax cheats” get caught.)

5. @ calgary411 and all

   I just read a very interesting article the discusses the Constitutionality of derivative citizenship. Here is the article link:

   http://www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__journals__annual_survey_of_american_law/documents/documents/ecm_pro_064998.pdf

   It really leaves the question unaswered as to “on what legal basis can the US confer derivitve citizenship” on individuals born outside the “jurisdiction of the US”. As we are all aware, derivitavie citizenship is a allowed based on statute rather that the 14th Amendment. Once again, the problem lies in the fact that no one has refuted the power of the US to impose derivative citizenship on an “unwilling recipient” who also is a citizen at birth of another coutry.at the level of the Supreme Court of the US.

6. Thank you, therapist604, for passing this on. I will examine your link more closely. My time has been limited.

   In the meantime, everyone, what does this mean in relation to the question we are asking? I can honestly say that I was UNAWARE that my son was a citizen of the US upon birth (and I still do not have an answer on if there is an option to claim that or if it is, indeed, automatic). I did not register him with the US; he was raised in Canada, never lived in the US, never had any benefit from the US (and the usual ‘he is entrapped into US citizenship as I or any other Parent, Guardian or Trustee does not have the right to renounce his and others like him with a ‘mental incapcity’, supposedly “automatic” US citizenship from time of birth in Canada’. I did not know this was the case until I met with my US tax lawyer and a Washington, DC immigration / nationality lawyer in early 2012 on what my son’s status actually was.

   (starting page 51 of 101 of http://www.scribd.com/doc/22247562/STATE-DEPT-Acquisition-and-Retention-of-US-Citizenship-and-Nationality

   7 FAM 1133.5-17 Defense of Unawareness of U.S.Citizenship
   (CT:CON-204; 11-01-2007)
   a. Origin of the Unawareness Doctrine: The doctrine set forth in the Attorney General’s opinion of May 24, 1962, in the case of Freddie Norman Chatty-Suarez, 9 I. & N. Dec. 670 (1962), and by the courts of appeals in various cases such as Perri v. Dulles, 206 F.2d 586 (3rd Cir.1953); Petition of Acchione, 213 F.2d 845 (3rd Cir. 1954); and Rogers v.Patokoski, 271 F.2d 858 (9th Cir. 1959), that potentially expatriating acts performed while a person was unaware of a possible claim to U.S.citizenship do not cause loss of nationality, has also been applied to cases involving section 301(b) INA. Under that doctrine, any person wholly unaware of a possible claim to U.S. citizenship should not be held to have ceased to be a citizen by failure to meet the retention requirements.b. Knowledge of Parent’s Citizenship Does not Preclude Unawareness Defense: In Rogers v. Patokoski the Court held that expatriating acts committed by an individual while he was unaware of his claim to U.S.citizenship did not cause him to lose his U.S. citizenship. Despite the applicant’s admission in that case that he knew that his father was a U.S.citizen, the Court accepted his claim of unawareness of his own citizenship since there was no evidence to the contrary. His lack of awareness was demonstrated by evidence that he had entered the United States on several occasions as a non immigrant. In effect, the Court stated that the applicant met the burden of proof on the basis of his own credible and convincing testimony. (Although this case does not directly relate to the retention requirements, its development of the notion of unawareness can be applied by analogy in this context.) The INS

   U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs7 FAM 1130 Page 52 of 101
   Administrative Appeals Unit also has held that awareness of a claim toU.S. citizenship requires more than the knowledge of the birthplace or citizenship of the parent.c. Current Policy on Unawareness: Unless there is direct evidence of an applicant’s awareness of his claim to U.S. citizenship, the Department will accept the applicant’s credible and convincing statements of unawareness. Persons who learned of their possession of U.S. citizenship after reaching age 26 are held not to have forfeited their U.S. citizenship by failing to enter the United States before their 26th birthday to begin compliance with the retention requirements. There is no requirement that such persons later enter the United States in order to keep their citizenship. An individual who was aware before age 26 that he or she was a U.S. citizen but assumed that such citizenship had been lost cannot claim unawareness as a defense against the operation of section 301(b)INA.d. Persons Aware of Citizenship But Unaware of Retention Provisions:Ignorance of the retention requirements does not excuse an individual’s failure to comply with them if that person was aware of a claim to U.S.citizenship before the date on which that person would have been required to begin compliance with the retention provisions. For instance:(1) Rucker v. Saxbe, 552 F.2d 998 (1977), indicates that unawareness of the requirements of section 301(b), when accompanied by an awareness of a claim to U.S. citizenship, does not prevent application of the retention requirements (for text of the opinion,see 7 FAM 1174). The Supreme Court declined to review Rucker.(2) In Rucker, the court found that the Government has no affirmative duty to inform citizens residing abroad of changes in U.S.nationality laws on a continuing basis, and that it was not barred from applying the retention requirements to Mr. Rucker by its failure to inform him directly of the amendments to those requirements. This opinion coincides with the Department’s longtime belief that citizens are obliged to keep themselves informed of the duties imposed on them by their citizenship.e. Evidence In Support Of Unawareness(1) The consular officer should conduct an interview with the applicant but it is not necessary to conduct an in-depth investigation into the applicant’s background in order to determine if he/she has a valid unawareness claim. There is no requirement, for example, for family members to be interviewed. The applicant’s statement under oath should be accepted absent direct evidence contradicting it.

   U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs7 FAM 1130 Page 53 of 101
   Examples of direct evidence could include, but are not limited to:(a) The applicant was previously documented as a U.S. citizen;(b) The applicant previously applied for documentation, and the application was disapproved; and(c) The applicant previously inquired regarding acquisition of U.S.citizenship.(2) In some cases, knowledge of a claim could be imputed to the applicant if an applicant’s sibling previously inquired or applied for documentation as a U.S. citizen. The use of such evidence to counter a claim to unawareness would require not only a statement from the sibling, but a thorough development of the sibling’s awareness case as well. There is no requirement to query each sibling and parent of the applicant. Posts should attempt to develop only that evidence which would appear to refute the applicant’s statements. In most cases, it should not be necessary to require a personal appearance by any sibling but the post should inquire whether any siblings have been documented as U.S.citizens.(3) Posts may consider evidence which is circumstantial but nevertheless probative in assessing a claim of unawareness. For example, there has been a substantial American presence in the Philippines since late in the 19th century. An unawareness claim from an applicant from the Philippines with an English surname might raise questions that a similar claim in the United Kingdom would not raise. Thus, there may be historical or cultural factors which should be taken into consideration.f. Developing An Unawareness Case(1) Have applicants complete Form DS-11, Application for a U.S.Passport and the Citizenship Questionnaire (see 7 FAM 1217 Exhibit1217.3e), and document in further detail as necessary when and under what circumstances they learned of their claim to U.S.citizenship. The application should be supported by the required evidence of the acquisition of U.S. citizenship.(2) Once acquisition of U.S. citizenship is established, determine whether the applicant was subject to but failed to comply with applicable retention provisions. If retention requirements were not applicable or were complied with, then the issue of unawareness is not relevant and should be disregarded. If applicable retention

   U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs7 FAM 1130 Page 54 of 101
   requirements were not complied with, confirm that the applicant wishes to develop an unawareness defense rather than seek citizenship restoration under section 324(d) INA (see 7 FAM1133.5-15).(3) Interview the applicant and conduct any checks deemed necessary,such as lookout, post and/or Department records which may assist in determining the validity of the unawareness claim (see 7 FAM1133.5-17 e).(4) Resolve any loss of nationality issue, per 7 FAM 1200.(5) If the consular officer finds unawareness credible, and all acquisition and loss of nationality issues are satisfactorily resolved,citizenship can be documented based on the unawareness doctrine without prior Department approval. Upon determining that the evidence is sufficient to support the holding that the applicant was unaware of a claim to U.S. citizenship until after the date on which citizenship would have ceased for failure to meet the retention requirements, the consular officer should execute a certification along the following lines: “I have reviewed the case of (name of applicant) and determined that (he/she) was unaware of (his/her)claim to U.S. citizenship before (date). I have therefore determined that (he/she) should be regarded as having constructively complied with the retention requirements of (applicable section of law) and may be documented as a U.S. citizen” Date of Certification Consular Officer’s Signature,Officer’s Typed Name,Officer’s Title, Name of Post(6) Attach this certification to the passport or registration application.After approval and/or issuance at post, the post should route the file to the Department (CA/OCS) for review prior to filing. The post should provide a copy of the certification to the applicant.(7) If the consular officer finds a claim of unawareness is not (see 7FAM 1133.5-15).

7. It goes one way — this is for acquisition of US citizenship, but not the other — no claim of US citizenship.

   In this part, it at least refers to “a claim to U.S. citizenship” which is the question. Does it have to be claimed? So all who do not claim it, the US has no idea of their existence without FATCA. They just can go on their merry way (and live normally in countries and have what really should not be deemed “foreign accounts” in the countries in which they live outside the US) when FATCA has other countries become an arm of the IRS in other countries vs people at least trying to do things properly. (BUT GOOD FOR THEM IF THEY CAN!!) It will all end up in lengthy expensive class-action suits – there are those ready in Canada and I’ll be with them.

   (5) If the consular officer finds unawareness credible, and all acquisition and loss of nationality issues are satisfactorily resolved, citizenship can be documented based on the unawareness doctrine without prior Department approval. Upon determining that the evidence is sufficient to support the holding that the applicant was unaware of a claim to U.S. citizenship until after the date on which citizenship would have ceased for failure to meet the retention requirements, the consular officer should execute a certification along the following lines: “I have reviewed the case of (name of applicant) and determined that (he/she) was unaware of (his/her)claim to U.S. citizenship before (date). I have therefore determined that (he/she) should be regarded as having constructively complied with the retention requirements of (applicable section of law) and may be documented as a U.S. citizen” Date of Certification Consular Officer’s Signature,Officer’s Typed Name,Officer’s Title, Name of Post

8. The US confers citizenship on people born abroad through immigration law, which falls under the jurisdiction of Congress. Note how many different tweaks to the rules there are and how whether they are retroactive or not changes whether some of you are or aren’t considered citizens still.

   The US Constitution says that only those born or naturalized on US soil are US citizens. Period. It says nothing about passing on US citizenship to foreign born children or that those born and raised in foreign countries can be citizens either. At best, one can infer that the foreign born of US citizens have the right to try and claim citizenship should they come to the US (and as the US does not legally recognize dual citizen, the only way you could claim your right would be by planning to live in the US) but it’s through Congress that any foreign born children have any rights to make the claim.

   Doesn’t it logically follow that if FATCA is basically the US forcing its law on other sovereign nations then laying claim to their legally born citizens is also overreach?

   And how can a country that says it doesn’t recognize dual citizenship basically grant dual citizenship by claiming that say a Canadian born of a US parent in Canada is also a USC? There is no logic in this at all.

9. Cross-posting this long comment.

   This is a long comment, but it’s the opinion I wanted to have in black and white. So, here it is, the reply I got today from Sylvia D. Johnson, Ottawa, Canada US Embassy. And, I do really appreciate all she has offered. She could have chosen to ignore me as have so many others. Thanks, Ms. Johnson from many of us here.

   From: calgary411
   Sent: Thursday, July 25, 2013 3:33 PM
   To: Johnson, Sylvia D
   Subject: Re: Follow-up, Must there be a Claim to or is there Automatic US Citizenship for Children Born Abroad to US Citizen(s)?

   Thanks. Yes, we are talking about the supposed “Accidental Americans” born outside of the US to US parent( s ). I am going to post this as many are waiting for someone to clarify.

   Persons born in the US to Canadian (or other nationality parents) but never actually permanently resided in the US, have no US connection, are another subset adversely affected through FATCA – they are ‘collateral damage’ with US citizenship-based taxation combined with FATCA. It is not the taxation that is the problem as no taxes (or very little would be owed due to tax treaties) but the professional administration to accomplish these very complicated tax return and reporting requirements comes at an onerous cost. The average person cannot confidently prepare and file these, much more complicated than filing and reporting from within the US. Not many Canadian accountants are properly qualified to help, nor do they want to subject themselves and businesses to the IRS and its penalties. A change to US residence-based taxation, like the rest of the world, would make this much fairer for persons never intending to live in or benefit from anything in the US. I / we wish more government officials could see the people whose lives are so adversely affected. Thanks for taking your time to understand what we are talking about.

   I appreciate your input.

   Sincerely,
   calgary411

   Do you have access to contact information that I requested?

   From: Johnson, Sylvia D
   Sent: Thursday, July 25, 2013 2:44 PM
   To: calgary411
   Subject: RE: Follow-up, Must there be a Claim to or is there Automatic US Citizenship for Children Born Abroad to US Citizen(s)?

   It would appear that they did receive correct information for a person born outside of the United States to a U.S. parent.

   You mention about a person who was physically born in the United States which appears to be different from the situation in Toronto.

   SBU

   This email is UNCLASSIFIED.

   From: calgary411
   Sent: Thursday, July 25, 2013 4:28 PM
   To: Johnson, Sylvia D
   Cc: Stephen Trow; Roy A. Berg
   Subject: Re: Follow-up, Must there be a Claim to or is there Automatic US Citizenship for Children Born Abroad to US Citizen(s)?

   Dear Ms. Johnson,

   I very much appreciate your response. Thank you.

   Your response;

   Issuance of a passport or Certificate of Report of Birth of Abroad recognizes the existence of U.S. citizenship of the individual. The applicant doesn’t become a U.S. citizen because they are issued a U.S. passport. If the person born abroad to a U.S. citizen parent never applies for a passport the State Department does not require the individual to be documented as a U.S. citizen.

   Only if the person applies for an immigrant visa, the person may be required to resolve the citizenship issue since we cannot issue an immigrant visa to a U.S. citizen; or if for whatever reason, the person choses to renounce U.S. citizenship, it is important to ensure the person renouncing is a U.S. citizen. It may be necessary to adjudicate a person’s citizenship as part of the renunciation process, but adjudication of citizenship does not require issuance of a passport, it could just be part of the renunciation process.

   AND

   …

   As I stated previously, in order to renounce U.S. citizenship possibly the most important requirement is that the person be a U.S. citizen. Sometimes it is necessary to adjudicate a person’s citizenship as part of the renunciation process. That doesn’t mean the U.S. citizen has to obtain a passport or other document as part of the renunciation process.

   does still beg the question regarding the instances reported below** (and in my original email) – were they given correct information regarding not needing to renounce, all advice given re children born to US parents in countries outside the US, never registered as a birth abroad with the US, never applied for a US passport, never lived as a US citizen and never received any benefit from the US. These people will go on their way with the correct OR incorrect advice from a US Consulate / Embassy that they are not US citizens. If incorrect, will it sting them when they are asked questions from their “foreign” financial institutions regarding FATCA? Are others being given entirely different answers and going ahead with whatever they have to do to renounce US citizenship. The advice these people get from US Consulates/Embassies must be consistent and correct. It is vital for them to confidently get on with their lives.

   Many of us were given what turned out to be erroneous advice decades ago – punitively warned that we would be relinquishing US citizenship in becoming Canadian citizens; never having a border guard question our crossing the border with a Canadian passport even though that passport said we were born in the US. In these instances we were confident that we were only Canadians and carried on our lives in the following decades as such – until now when we are treated as criminals. People must be given clear, accurate information, with no obfuscation.

   It is apparent from this linked US Treasury Department proposal that these issues are understood by some in the US. They have just never been clarified, leaving so many in the lurch. If we cannot get answers from the US Government, we must pay enormous sums to get advice from legal tax and immigration / nationality professionals. This should not have to be the case. What of those who in no way can afford to pay for professional advice, advice that is also not necessarily consistent from one professional to another. Who has the DEFINITIVE and simple answer? Can you direct me (so I can can continue my quest for myself and so many others) to contact information for Director Edward Betancourt, Office of Legal Affairs, and for Donald C. Lubick, Assistant Secretary, Tax Policy (or someone now in that position), who drafted the linked proposal in 1998? We would like an updated opinion as to whether this proposal was indeed implemented and, if not, why not? http://www.treasury.gov/press-center/press-releases/Documents/tax598.pdf

   ** Toronto US Consulate:

   SueBee shares that she and her brother were told at the Toronto US Consulate that US citizenship is a choice — they declined the choice!

   I wanted to share my brother’s and my experience today of applying for US citizenship at the Toronto Consulate. We are both Canadian born children of a US parent who is now deceased. Given the information we have taken from the internet, IRS and US citizenship sites, we came to believe that we had to obtain US citizenship (we were never registered as born abroad by our US parent). We completed all the paper work, obtained the documents and booked the appointment and attended for that today. We were to be granted US citizenship, however when we advised them that we actually did not wish to obtain the citizenship and in fact the only reason we had come was because we believed the US required it of us they were dismayed. We were told by the consulate officer and her direct superior that they cannot force anyone who is born outside of the US to acquire citizenship – it is a choice. When we pressed her further stating that this is not the information we are getting she advised clearly that we are not US citizens unless we willingly apply for and accept the citizenship. She stated we can say unequivocally that we are not US citizens unless we wish to be. We respectfully declined the offer of citizenship (to their amazement) and left with our refund and documents in hand. I will certainly sleep better and breathe easier! I hope this helps other Canadian born who are concerned about this.

   Jerusalem US Consulate:

   BenPloni says

   June 1, 2013 at 3:03 pm

   I just e-mailed Consul Kirk Smith about this since it affects my kids too…specifically I want him to verify that the DOS policy is that citizenship of kids born abroad is a choice.

   Dear Consul Kirk,

   I saw a comment posted below online of someone who was the born outside the U.S. to U.S. citizens. They said the Toronto U.S. Consulate told them that U.S. citizenship for them was a choice…that is, until they applied for U.S. citizenship (and if approved), they aren’t U.S. citizens (even if their parent(s) meet/met the transmission requirements. Doesn’t this mean if my kids needed to visit the U.S. (and aren’t registered), they can travel on their UK passports through the VWP? Or are they required to to register as U.S. citizens and obtain U.S. passports. It seems to me based on what the Toronto Consulate said to the person below, they aren’t required to claim it–it’s a choice.

   Thank you,
   [Ben Ploni]

   “I wanted to share my brother’s and my experience today of applying for US citizenship at the Toronto Consulate. […]“

   And another comment I made regarding this experience at the Jersusalem US Consulate:

   Thanks, schubert. I believe it is very important to have clarification on this. Perhaps BenPloni will receive that on Department of State stationery from Consul Kirk Smith, the US Consulate in Jerusalem.

   (After making what should be to us many troubling comments about expatriation to BenPloni, Consul Smith admitted that it was a steep learning curve for him regarding renunciation and relinquishments.)

   See BenPloni’s answer to therapist604 on this subject — and the resulting comment stream, starting at http://isaacbrocksociety.ca/consulate2/comment-page-9/#comment-356193

   tdott says:

   Basically he said “if you pass the tests for transmission, they have a claim for U.S. citizenship and are U.S. Citizens” but until they are registered as such “we (the government) are unaware of them”.

   At the risk of nit-picking, this seems contradictory. Are they US citizens *or* do they have a claim to US citizenship?

   Let’s once and for all get a straight non-convoluted answer. Who will give us that important answer?

   as well as BenPloni’s most recent comment – answer to his question for his children, citing the Toronto US Consulate experience (above):

   Here is the most recent comment:

   BenPloni

   Submitted on 2013/06/06 at 10:03 am

   @Calgary411

   Toronto confirmed what was written earlier. It may not be on DoS letterhead, but I have the electronic signature verifying their position…(still haven’t heard from Kirk)

   MIME-Version: 1.0
   Received: by 10.58.204.193 with HTTP; Thu, 6 Jun 2013 06:54:27 -0700 (PDT)
   In-Reply-To:
   References:

   Date: Thu, 6 Jun 2013 16:54:27 +0300
   Delivered-To: xxxxx@gmail.com
   Message-ID:
   Subject: Re: children’s status clarification
   From: xxxxxxx xxxxxxxx
   To: “Toronto, Passport”
   Content-Type: multipart/alternative; boundary=047d7bf0dd26152fa304de7ca7a1–047d7bf0dd26152fa304de7ca7a1
   Content-Type: text/plain; charset=windows-1252
   Content-Transfer-Encoding: quoted-printable

   Thank you for your response..

   On Thu, Jun 6, 2013 at 4:49 PM, Toronto, Passport wrote:

   Good Morning,****
   >
   > ** **
   >
   > They do not have to claim U.S. citizenship if they do not intend to. As for travel to U.S. with their U.K. passports, please visit http://www.us.travel.state.gov for more information on the visa waiver program.**
   > ** **
   > Thank you and have a pleasant day.****
   >
   > ** **
   >
   > ACS/ ta****
   >
   > ** **
   >
   > *From:* xxxxxxx [mailto:xxxxxxxx@gmail.com]
   > *Sent:* Thursday, June 06, 2013 9:34 AM
   > *To:* Toronto, Passport
   > *Subject:* Re: children’s status clarification****
   >
   > ** **
   >
   > They were born in Jerusalem (2005 and 2007). They never were registered. […]
   >
   > ** **
   >
   > On Thu, Jun 6, 2013 at 4:31 PM, Toronto, Passport TorontoPassport@state.gov> wrote:****
   >
   > Good Morning,****
   >
   > ****
   > Where were your children born? If born outside the U.S., did you register them at a U.S. Consulate or U.S. Embassy?

   ****
   >
   > ****
   >
   > ACS/ ta****
   >
   > ****
   >
   > *From:* xxxxxxxx xxxxxxx[mailto:xxxxxxx@gmail.com]
   > *Sent:* Thursday, June 06, 2013 9:26 AM
   > *To:* Toronto, Passport****
   >
   > *Subject:* Fwd: children’s status clarification****
   >
   > ****
   > ****
   >
   > Dear sir/madam,****
   >
   > ****
   >
   > I saw a comment posted (below) online of someone who was the born outside the U.S. to U.S. citizens. They said the your office [Toronto U.S. Consulate] told them that U.S. citizenship for them was a choice…that is, until they applied for U.S. citizenship (and if approved), they aren’t U.S. citizens (even if their parent(s) meet/met the transmission requirements.
   > As I take everything I see online with a grain of salt I wanted to verify if this is correct..****
   >
   > ****
   > I previously had U.S. citizenship and renounced in May 2013. My kids were born before that date and have dual UK and Israeli citizenship. Although they should meet the transmission requirements, I have/had no intention of registering them as US citizens. Does this this mean if my kids needed to visit the U.S. (and aren’t registered), they can travel on their UK passports through the Visa Waiver Program? Or are they required to to register as U.S. citizens and obtain U.S. passports. It seems to me based on what the your office (allegedly) said to the person below, they aren’t required to claim it U.S citizenship–it’s a choice.****
   >
   > ****
   >
   > Thank you,****
   >
   > xxxxxxxx****
   >
   > ****
   >
   > “I wanted to share my brother=92s and my experience today of applying for US citizenship at the Toronto Consulate. We are both Canadian born children of a US parent who is now deceased. Given the information we have taken from the internet, IRS and US citizenship sites, we came to believe that we had to obtain US citizenship (we were never registered as born abroad by our US parent). We completed all the paper work, obtained the documents and booked the appointment and attended for that today. We were to be granted US citizenship, however when we advised them that we actually did not wish to obtain the citizenship and in fact the only reason we had come was because we believed the US required it of us they were dismayed. We were told by the consulate officer and her direct superior that they cannot force anyone who is born outside of the US to acquire citizenship — it is a choice. When we pressed her further stating that this is not the information we are getting she advised clearly that we are not US citizens unless we willingly apply for and accept the citizenship. She stated we can say unequivocally that we are not US citizens unless we wish to be. We respectfully declined the offer of citizenship (to their amazement) and left with our refund and documents in hand. I will certainly sleep better and breathe easier! I hope this helps other Canadian born who are concerned about this.”****

   Ottawa US Embassy:

   http://isaacbrocksociety.ca/2011/12/14/about-the-isaac-brock-society/comment-page-4/#comment-366457

   aaa123 says

   June 1, 2013 at 8:54 pm

   I received essentially the same information from the Embassy in Ottawa. They told me that someone born to a US citizen may have a right to claim US citizenship, but until they have claimed it (and proven everything that needs to be proven) they aren’t a US citizen. No need to apply for and then renounce citizenship. I would love to see that from a more official source, though!

   Based on information from the consulates / embassy, we need absolute clarification of the questions and the coming of FATCA, not IRS babble:

   ‘Is a child born to US Citizen(s) in a country abroad automatically a US Citizen if never registered with the US?’

   and, specifically for the IRS:

   ‘Are persons born abroad who merely qualify for US citizenship considered USP’s for tax purposes?’

   and the opaqueness for everyone will disappear and this segment of the “supposed” US Persons Abroad will know where they stand instead of constantly wondering.

   Your answers are helpful, but I still feel not complete in concert with what the above examples have been told at US Consulates / Embassy. Again, I can’t tell you how grateful I am that you, among so many who won’t, have taken the time to try to define what we are struggling with. I think you have the ability to put yourself in others’ shoes, where so many other government officials cannot. You are the kind of person there should be in leadership – a good communicator even when the data is so vague.

   Thank you once again, Ms. Johnson.

   My regards,

   calgary411

   From: Johnson, Sylvia D

   Sent: Thursday, July 25, 2013 11:35 AM

   To: calgary411

   Subject: RE: Follow-up, Must there be a Claim to or is there Automatic US Citizenship for Children Born Abroad to US Citizen(s)?

   Dear Ms. calgary411,

   The questions you have submitted to me and to the State Department involve the issue of a person born outside of the United States to a U.S. parent. The Consular Affairs Bureau Overseas Citizens Services responds to questions about citizenship and loss of nationality issues. The information below provides general observations which you probably have already received. We want to respond to your inquiries, but we may be limited in answering definitive answers to general questions. Questions on these complex issues are best referred to CA Overseas Citizen Services. But it is hard to generalize on response that apply to all situations on this subject. Some of the ideas that we have discussed previously and that others have suggested are worth exploring – such as more FAQs, Step-by-Step Instructions. Questions on issues that are unclear to you help us to understand the areas where we want to ensure we have assisted you in getting the information you need.

   http://travel.state.gov provides links to the laws and explain citizenship, and though you are already familiar with the site – we suggest it is the best first place to start for many questions even if only because of the contact information it provides.

   Issuance of a passport or Certificate of Report of Birth of Abroad recognizes the existence of U.S. citizenship of the individual. The applicant doesn’t become a U.S. citizen because they are issued a U.S. passport. If the person born abroad to a U.S. citizen parent never applies for a passport the State Department does not require the individual to be documented as a U.S. citizen.

   Only if the person applies for an immigrant visa, the person may be required to resolve the citizenship issue since we cannot issue an immigrant visa to a U.S. citizen; or if for whatever reason, the person choses to renounce U.S. citizenship, it is important to ensure the person renouncing is a U.S. citizen. It may be necessary to adjudicate a person’s citizenship as part of the renunciation process, but adjudication of citizenship does not require issuance of a passport, it could just be part of the renunciation process.

   Does a person have a claim to US citizenship if he/she so chooses not to upon becoming an adult?

   The individual who was born abroad to a U.S. parent from birth, if he/she met the requirements that Congress established for citizenship is a U.S. citizen. However the individual may choose never to document their citizenship.

   Does a person born abroad to a US citizen have to go through a process of claiming US citizenship through a US consulate or, do so within the United States to register as a US citizen in order to renounce that citizenship at a US consulate abroad — or is that person automatically a US citizen at birth and should renounce as such at a US consulate or embassy outside the US? Do they have to pay for processing a claim to citizenship before renouncing U.S. citizenship. The process of establishing the existence of U.S. citizenship may be done as part of the renunciation process. A fee is assessed for service to process the relinquishment.

   As I stated previously, in order to renounce U.S. citizenship possibly the most important requirement is that the person be a U.S. citizen. Sometimes it is necessary to adjudicate a person’s citizenship as part of the renunciation process. That doesn’t mean the U.S. citizen has to obtain a passport or other document as part of the renunciation process.

   I hope this has been helpful, or if you want me to call you, please let me know.

10. @Calgary411

    On the other thread you mentioned Canadian snowbirds. As bad as it is that any non-US person gets caught in the US tax trap, they at least have a choice and are protected through the treaty through the tie breaker provisions. Not so for the rest of us.

11. @Calgary411

    I would suggest to you that this response from Sylvia D Johnson is not satisfactory in light of FATCA indicia standards of identifying potential US Citizens…

    Only if the person applies for an immigrant visa, the person may be required to resolve the citizenship issue since we cannot issue an immigrant visa to a U.S. citizen;

    As you may recall (though I am not the subject type of your query), I experienced what may turn out to be a UNIVERSAL approach to the application of FATCA “IF” canadian banks become FFI’s…

    My accounts were frozen at TD Waterhouse until such time as I provided a CLN Proof; neither my canadian passport, nor my Certificate of Canadian Citizenship were enough evidence to prevent them from freezing my accounts…This will happen to anyone suspected of being a US Citizen for whatever reason…

    It is no longer just a “case of an individual applying for an immigrant VISA”…it will become a standard which will cause many canadians with any form of US Indicia to be inconvenienced (now running 9 months in my case with a mounting financial cost) and have their banking needs frozen with unintended consequences…(essentially a form of persecution)…

12. Absolutely persecution, Benedict. “Foreign” banks have a gun to their head and business with the US is more important than their same-country (in our case, Canadian) clients. The US is punitive in their citizenship-based taxation law and we have yet to see if our Canadian government will stand up for us further than they already have stated. They could be a leader; they could be the country to squash all the absurdity. Collateral damage should not be acceptable.

    Instead, as badger points out:

    … it would be nice for an accurate story about this to get to NPR or the like. And where is a Canadian equivalent where TVO (TVOntario) or CBC features a thoughtful interview on FATCA or even just the US incursions into Canada via extraterritorial tax demands on those it decides are ‘taxable ‘persons’ ? Obama’s mouthpiece Ambassador Jacobson gets to appear in our public media and peddle his propaganda and meaningless drivel in amongst the warning messages about border control and pap about our ‘shared’ ‘friendship’. There has been enough about the problem with TFSAs and RESPs to warrant at least some Canadian media inquiry, but we hear nothing. It is hard not to feel that it is being deliberately treated as too tough or technical or delicate to report on.

    All or most of the financial advice for the common person in Canada, as published in the major dailies is still being written as if there is no US defined ‘foreign trust’ and FBAR and FATCA danger for > 1 million Canadian households. Our federal government is NOT warning us to stop using registered savings TFSAs, RESPs, and RDSPs, and we’re still being fed that stale letter from Flaherty that is dated 2011.If people are given sufficient information to protect themselves, the Canadian government and the Canadian media are complicit in the carnage. There are, I believe, still significant numbers of those affected in Canada and other countries, to say nothing of US immigrants / permanent residents, who don’t realize the enormity of how US citizenship-based taxation affects them.

13. The link for this October conference: The USD-PITI Conference, October 24th & 25th, 2013

    and,

    a link there from the conference information (may have been previously posted? and I missed this one): USD-PITI 2011: The Accidental American – Tax Risks, Compliance and Consequences

14. Princess Madeleine of Sweden gave birth to a little girl in New York this week. Are royalty diplomats? The article talks about the child losing the right to the throne if the child “claims” US citizenship. If she is not a diplomat, then she is already a US citizen. The US has already claimed her just because she is born on US soil (jus soli) and because her father is American. She will need a US passport to go in and out of the US, or else be entering and exiting illegally. Why would US citizenship be any more voluntary for her than anyone else?

    I am sure the Swedish people would find it interesting to know how much of the Swedish royal family’s finances are being reported to the IRS on FBARs and Form 8938. For FATCA compliance, the Swedish banks should report her Swedish accounts to the IRS also. Why should she be exempt from this reporting when others with US indicia like a US place of birth are not?

15. The link to the article is
    http://www.thelocal.se/20140221/princess-madeleine-gives-birth-to-a-daughter

16. Thank you NotThatLisa;
    Shouldn’t that article’s headline read: “Princess Madeleine gives birth to a US taxpayer”? After all, who cares whether she had a girl or boy, the relevant status is only who in the world is a “US taxable person” right?

    Good points about whether the Swedes would be interested to know how much of the royal funds are now reportable as ‘foreign’ accounts. Would be great if one could get the local press to discuss this – perhaps would also pique their interest if it worked in FATCA and the OECD GATCA – since it illustrates the clash between taxation based on residency, and the lifetime of taxation based on birthplace that the little princess will face now. ‘Swedish princess now a “US taxable person’ – with Swedish royal assets now declared “US taxable foreign accounts”…. etc.

17. You beat me to it!

18. http://www.kungahuset.se/royalcourt/royalfamily/latestnews/latestnews/messagesofcongratulationsfromthefamily.5.798b464e143e34cbdd0114e.html

    Here are the “greetings” from the family. The family is pretty weird, due to too much inbreeding. There was lots of press about them being at the Olympics, which goes on year after year, because that is where the King & queen met.

    There are no words in the greetings which imply that the grandparents or aunts & uncles might come to visit.

    Madeleine fled to NY over the media storm and her father’s discussions with her about her previous fiancé’s uncovered affair with a Norwegian girl.

    Sweden is very very vey close to signing its IGA. It would be nice to see this discussion come out.

19. If you dig around on US government websites, you will see that there is an entire group of accidental americans, born to one US parent outside the US, who ARE indeed american upon birth, but they lost it due to a 5 year residency retention requirement preceding adulthood. A Clinton bill made provision for them to regain citizenship, however, they are NOT citizens unless they opt to restore it, therefore, no IRS or fbar responsibilities.

20. some documents to get you started on understanding how most Canadian Accidental Americans lost their citizenship due to not living there, notwithstanding the right of restoration:

    http://www.state.gov/documents/organization/153156.pdf

    http://www.state.gov/documents/organization/86757.pdf

21. BONUS FOR ME AND OTHERS WHO TRIED TO GET CONFIRMATION ON WHETHER THERE WAS A CLAIM TO US CITIZENSHIP OR AUTOMATIC US CITIZENSHIP FOR CHILDREN BOARD ABROAD TO US PARENT(S) (see: http://isaacbrocksociety.ca/2013/07/07/frustration-abounds-as-answers-are-not-received-accidental-americans-born-abroad-to-us-parents-and-not-registered-with-the-us-are-they-automatic-us-citizens-or-do-they-have-the-o/) — if I am reading correctly:

    Contrary to what I was advised by several sources (the US Consulate in Calgary, my US tax lawyer in Calgary, a Washington, DC US immigration / nationality lawyer that I hired to answer this question, the Department of State / Legal Department), the link to this site now gives information that there is indeed A CLAIM TO US CITIZENSHIP: https://ca.usembassy.gov/u-s-citizen-services/birth/transmit-citizenship/

    Transmission Requirements Table

    Child born in wedlock to two U.S. citizens
    A child born outside of the United States or its outlying possessions to two U.S. citizen parents, in wedlock, is entitled to citizenship, provided one of the parents had, prior to the birth of the child, been resident in the United States or one of its outlying possessions. (No specific period of time is required.)
    
    NOTE: A child born to two U.S. citizens, out of wedlock should refer to number 3 or 4 below (whichever favorably applies).

    Child born in wedlock to one U.S. citizen parent and one non U.S. citizen parent (on or after November 14, 1986)
    A child born outside of the United States to one U.S. citizen parent and one non-U.S. citizen parent may be entitled to citizenship providing the U.S. citizen parent had been physically present in the United States or one of its outlying possessions for five years, at least two years of which were after s/he reached the age of fourteen.

    Child born out of wedlock to a U.S. Citizen mother
    A child born outside of the United States and out of wedlock to a U.S. citizen mother may be entitled to U.S. citizenship providing the U.S. Citizen mother had been physically present in the United States for a continuous period of at least one year (365 days) at some time prior to the birth of the child. (NOTE: Periods spent overseas with the U.S. government/military or as a government/military dependent, are NOT considered as physical presence in the U.S. for transmission under this category.)

    Child born out of wedlock to a U.S. Citizen father
    A child born outside of the United States and out of wedlock to a U.S. Citizen father may be entitled to U.S. Citizenship providing the U.S. citizen father had been physically present in the United States or one of its outlying possessions for five years, at least two years of which were after he reached the age of fourteen. In addition the U.S. citizen father must acknowledge paternity and agree in writing to provide financial support for the child until s/he reaches the age of 18 years.

    NOTE: All periods of residence or physical presence must have taken place prior to the birth of the child.

    Adopted children or children under 18, born to U.S. citizens who are not eligible for U.S. citizenship as described above may be eligible under the Child Citizenship Act of 2000. Further information is available from the Department of State’s website.

    If you are over 18 and believe you have a claim to U.S. citizenship, please review our citizenship information page.

22. @calgary;
    If they’re going to demand all that difficult to obtain documentation which may very well never have even existed (because it was so long ago or because the parent didn’t live in the US for very long or was a minor when they left, or because the records no longer exist) then it seems that transmission via 1 US parent is very much a potential ‘claim’ and nothing more in practice.

    Given the magnitude of what State demands people produce, it is absurd and unjust for the US Treasury to seek to force people born outside the US to pro-actively act as if they were certified bona fide UScitizen-taxpayers and be liable for US taxes and penalties and lifelong servitude without remedy based on a mere presumption of an inherited status – without any definitive paperwork or robust reason to suppose it.

    Of course the US is more than happy to accept without any proof at all that someone abroad is a US citizen for TAX purposes whereas they’ll go the extra mile NOT to accept or certify that they’re a US citizen for other purposes.

    It would be absurd to be forced to prove that a child of one US parent was not a US citizen and that they did not inherit status via parentage or to have to prove that they did NOT have a legitimate enough claim to the status – as US citizenship via parentage is something that only State could fully certify after all the documentation was presented. And what of those with two USborn parents who had thought that they had relinquished/renounced when they swore the Canadian citizenship oath – especially those who did so decades ago, when they were told they’d be losing US status, before the US Supreme Court ruled that the automatic presumption of loss of US citizenship via that act was not valid? How can the US force people – children born ‘abroad’ to retroactively prove the intent of two UScitizen parents decades ago?

    The whole thing continues to evoke Carroll’s Alice in Wonderland ( ex. “..“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”. ATTRIBUTION: LEWIS CARROLL (Charles L. Dodgson), Through the Looking-Glass, chapter 6, p. 205 (1934). First published in 1872. http://www.bartleby.com/73/2019.html )..”.. plus Dickens’ Jarndyce and Jarndyce in Bleak House; “….presently great bundles of paper began to be carried out—bundles in bags, bundles too large to be got into any bags, immense masses of papers of all shapes and no shapes, which the bearers staggered under, and threw down for the time being, anyhow, on the Hall pavement, while they went back to bring out more……….”…….( https://en.wikipedia.org/wiki/Jarndyce_and_Jarndyce , https://en.wikisource.org/wiki/Bleak_House/Chapter_LXV , ←Chapter LXIV
    Bleak House by Charles Dickens – Chapter LXV: Beginning the World ).

    Looking for clarity and justice from those in the heart of the system of US citizenship-based taxation and taxation-based citizenship for those born and living ‘abroad’ is reminiscent of looking into the heart of Jarndyce v. Jarndyce;

    “……some score of members of the High Court of Chancery bar ought to be—as here they are—mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horsehair warded heads against walls of words and making a pretence of equity with serious faces, as players might. On such an afternoon the various solicitors in the cause, some two or three of whom have inherited it from their fathers, who made a fortune by it, ought to be—as are they not?—ranged in a line, in a long matted well (but you might look in vain for truth at the bottom of it) between the registrar’s red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense, piled before them. …..”
    Bleak House by Charles Dickens
    Chapter I: In Chancery
    https://en.wikisource.org/wiki/Bleak_House/Chapter_I

23. Charles Dickens must surely have been a US expat taxpayer. How else could he have come up with such a perfect description?

24. @Calgary411

    The transfer chart on this page that has been quoted is incomplete and terribly misleading, at least in the case of “Child born in wedlock to one U.S. citizen parent and one non U.S. citizen parent”:

    https://ca.usembassy.gov/u-s-citizen-services/birth/transmit-citizenship/

    A couple of days ago I learned that a friend of mine was born in wedlock in Canada in the 1960s to a US father and Canadian mother. Looking at the chart, her parents fall into the 2nd category, but it (arguably) _APPEARS_ to grant the possibility of US citizen entitlement only for those born after November 1986. In fact, the reference to 1986 is when the number of years of “physical presence” changed. Here is the full rule:

    From: https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/citizenship-child-born-abroad.html

    Birth Abroad to One Citizen and One Alien Parent in Wedlock

    A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child’s birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be the genetic or the gestational parent and the legal parent of the child under local law at the time and place of the child’s birth to transmit U.S. citizenship.

    This page tracks the law as it changed over time, and defines what “physical presence” really meant as it changed over time too. Note that physical presence is not the same as residence: http://www.americanlaw.com/citabrd.html

25. Thanks — and the situation for our family (me and my son) is, sadly:

    Acquisition of U.S. Citizenship by a Child Born Abroad

    Birth Abroad to Two U.S. Citizen Parents in Wedlock

    A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA) provided that one of the parents had a residence in the United States or one of its outlying possessions prior to the child’s birth. The child is considered to be born in wedlock for the purposes of citizenship acquisition when the genetic and/or gestational parents are legally married to each other at the time of the child’s birth and both parents are the legal parents of the child under local law at the time and place of birth.

    …with my son’s details in US hands because of my renunciation and compliance with US tax and reporting — my FBARs show the Canadian RDSP that for which I am the HOLDER, my son the beneficiary and 3520 / 3520’s submitted for that account, which brought me a US tax liability, as follows.

    This is the way the Canadian Registered Disability Savings Plan (RDSP) is taxed by the US for US Persons in Canada, per the tax lawyer at the Calgary firm I used:

    1. If the sponsor / Holder of an RDSP (or RESP for that matter) is a US person then (US person analysis of the beneficiary is irrelevant):

    a. The income generated by the RDSP is taxed to the US person sponsor currently as it is earned

    b. The grant is taxed to the US person sponsor when it is distributed to the beneficiary

    c. US person sponsor must file 3520A annually

    d. US person sponsor must file 3520 annually

    2. If the sponsor / Holder of a RDSP (or RESP) is NOT a US person, AND the beneficiary is a US person then:

    a. The income generated by the RDSP (RESP) is taxed to the US beneficiary currently as it is earned

    b. The grant is taxed to the US person beneficiary when it is distributed

    c. US person beneficiary must file 3520 annually (no 3520A)

    Neither RDSPs nor RESPs are covered by the Canada / US Tax Treaty.