On Monday, the State Department posted an update to 7 FAM 1260, the section of the Foreign Affairs Manual which discusses procedures for renunciation of U.S. citizenship. For comparison, here’s the previous version, which is less than half the length. (Separately from this, 7 FAM 1220, which discusses standards for assessing relinquishments rather than renunciations of U.S. citizenship, was updated back in February: old vs. new.) There’s three major changes to 7 FAM 1260, and a bunch of minor ones which I summarise after the jump.
First, the update retains the two-interview system but recommends that the first interview (“initial information session”, in which the consular officer reviews the renunciant’s paperwork and discusses the consequences) be conducted by telephone or that the information required can be exchanged electronically. This means that renunciants should be able to avoid having to make two actual visits to the consulate, which may be distant from where they live — possibly even in another country, if their local consulate had a months-long backlog for appointments.
Second, the update disallows attorneys from being present for either interview, even if the renunciant does not speak English and needs a witness. State claims this is necessary to allow them to ascertain the person’s “free will”; I have my doubts about that explanation.
Third, the update provides that Form DS-4079, “Request for Determination of Possible Loss of United States Citizenship”, should not be required in routine renunciation cases; only a DS-4080, “Oath/Affirmation of Renunciation of United States Nationality”, and DS-4081, “Statement of Understanding Concerning the Consequences and Ramifications of Relinquishment or Renunciation of U.S. Citizenship”, are necessary.
Table of contents
I omitted discussion of the minor updates in 1262.4 (Documentation of Renunciation), 1265 (Renunciation and Special Circumstances), and 1267 (Renunciation and the Brady Act), since I didn’t have anything in particular worth saying about those.
1261: Introduction
(d): Comprehension
Added that if a person does not understand that renunciation means giving up the right to reside in the U.S. without a visa, “it cannot be said that the individual intended to relinquish his or her U.S. nationality when he or she executed the oath of renunciation”. Another ongoing consequence of 1980s & 1990s renunciations by Joel Slater and various Puerto Rican independence activists who returned to the fifty states or Puerto Rico almost immediately after renouncing citizenship.
(g): Renunciation and Statelessness
Added that statelessness is “a status that can present severe hardship and is disfavored under international law” and that it might also bring difficulties for “[t]he ability to own or rent property, work, marry, receive medical or other benefits, and attend school”. Possibly related to ongoing repercussions of Harmon Wilfred‘s renunciation in New Zealand, which has led to complaints by New Zealand’s government to the U.S. embassy because the U.S. government now refuses to accept him for deportation.
(i): Would-be temporary renunciants
Added “Irrevocable nature of renunciation” in subsection name. Added at end that “[t]he only means to acquire or regain citizenship would be through a subsequent naturalization”. We discussed renaturalisation last month.
1262: Interview with Potential Renunciant
1262.2: Initial Information Session/Interview with Potential Renunciant
Added subsections (d) and (e), which allow for the initial information session to be conducted by telephone or electronic means. The latter requires the consulate to obtain joint approval from the Office of American Citizens Services & Crisis Management and the Office of the Legal Adviser (at least I think the latter is what “CA/OCS/L” stands for; they’re listed in the “Office Symbols” section of State’s telephone directory simply as “L”). These changes, if consulates actually bother to obey them, will hopefully save renunciants the time and expense of two in-person trips.
1262.3: Site of Renunciation
Changed title to “Second Interview/Site of Renunciation”. Significant expansion. Major points: consular officer has discretion to further delay the renunciation, and parent/guardian/legal representative should not participate in any interview. (Other countries allow parents, guardians, and legal representatives to be present during formalities and even to give up citizenship on their behalf if their children/wards lack legal capacity to do so themselves, though as discussed last time this is because those countries also have generous procedures for people who gain/regain legal capacity to restore their own citizenship if they disagreed with the decision of the parent or guardian.)
1263: Translations, Interpreters and Witnesses
Deleted language stating that an attorney may accompany a non-Anglophone renunciant in order to act as a witness. Probably related to 1262.3 update barring legal representatives from taking part in the interview. Existing language in this section provides that another consular staff member may act as one of the witnesses, but non-Anglophone renunciants must find someone who is neither a relative, friend, associate, and now not an attorney to act as the other witness. Yep, clearly no attempt to “restrict[], impair[], or question[] the right of expatriation” here!
1264: Disposition of Documents and Departmental Approval
New language in note provides that “consular officers should not seek completion and signature of DS-4079 in renunciation cases as a matter of routine”, but provides examples of non-routine situations in which it may be relevant (“where there is a question about intent” or “ties to the United States and the host country”). The DC District Court has held in Weber v. Department of State, that recent pre-renunciation “affiliation” with the United States is sufficient ground for a consular officer to deny a renunciation (yes, a renunciation and not just a relinquishment).
Almost exactly two years ago the State Department, in Paperwork Reduction Act filings, cut its estimate of the number of DS-4079 filers by about 25%. At the time I thought this was just disinformation, especially in the face of well-documented increases in the number of people giving up U.S. citizenship since 2007. Now, however, I wonder if this might have been related to some internal discussions at State whether DS-4079 should have been required from all renunciants. In any case, State will have to make another set of Paperwork Reduction Act filings regarding DS-4079 next year, and it’ll be interesting to see how they further change their estimates then.
(If renunciants really only form 25% of the pool of people giving up U.S. citizenship, that suggests a sharp rise in the number of relinquishers — people who commit one of the other expatriating acts in 8 USC 1481(a) with the intention of giving up US citizenship. Previously, when attempting to estimate the total number of people giving up U.S. citizenship based on the monthly FBI figures for the number of renunciants, we’ve used a ratio of 4 or 5 relinquishers for every 6 renunciants, based on 1994/1995 data. However, if that ratio is too low, then our estimates are also far too low. The massive increase in the renunciation fee last year provides another incentive for people to find some way to relinquish instead of swearing an oath of renunciation.)
1266: Renunciation and Taxation
Clarified that consular officers should tell all renunciants to get in touch with the IRS about their potential tax obligations and that consular officers cannot answer any questions in this regard.
1268: Checklist
Separated out into numbered paragraphs. Added references to electronic transmission of scans of forms to ACS, and stated again that DS-4079 should not be required from renunciants in all cases.
1269: Sample Consular Documents in a Renunciation Case
New section. Subsection (a) provides an example of the letter the consular officer should send to ACS when recommending a renunciation. Subsection (b) provides an example of the letter the consular officer should send the prospective renunciant for the “electronic information session” first interview discussed above.
My interest is how a person proves intent to relinquish vs. renounce.
That is an incredibly muddy area.
Neither I nor the other renunciant I chatted with while waiting were required to have two interviews this past March in Toronto unless that’s why we each had to talk to the officer once and then return to the waiting room for about 45 minutes before we were each called up again to complete the process.
Savings from having only one consular interview will be passed on in the form of a reduced renunciation fee.
….
right?
@Eric
Thank you for the analysis and write-up.
It seems that, going forward, DoS will use DS-4079 for relinquishments and DS-4080 for renunciations. If the quantity of form DS-4079 used for a period is available, this should allow the number of relinquishments to be estimated. We can continue to rely on the FBI figures for the number of renunciations. By combining the two figures, we should have a fairly solid figure on the number of expatriations in a period and can discard the quarterly IRS expatriation report for the fiction that it is.
@Innocente,
Assuming we can get the numbers of those forms filed.
http://www.valuewalk.com/2015/07/fatca-tips/
Here’s some guy suggesting on how to exploit the FATCA loophole that Carl Levin was so desperate to close.
Basically set up a foreign LLC and pay an attorney thousands in fees. If you need to shield millions, I suppose it’s do-able. However, it does preclude the US eventually expanding FATCA reporting to these foreign LLC’s in future or trying to force other countries with greater levels of transparency on company ownership, but then again the US plays that game particularly in Delaware.
@Innocente & foo: unfortunately, getting accurate numbers is likely to remain a big problem:
1. State doesn’t provide Paperwork Reduction Act estimates for DS-4080. Not sure why that form is exempt; possibly due to low time burden on filers (it’s a lot less complicated than DS-4079)
2. PRA estimates only have to be updated once every three years, and there’s no penalty for blatantly false estimates on stuff that’s below the threshold of a significant regulatory action. Example most relevant to us: USCIS admitted (thanks to Shadow Raider’s FOIA request) that an average of ~18,000 people per year filed Form I-407 for FY 2010-2012 and that they were on track for a similar number in FY 2013, but then in 2014 when they first applied for an OMB Control Number for I-407 they claimed that only 9,371/year would file it in the upcoming three years.
I dont really understand why America wants to keep people from leaving their country. Raising the fee would only hinder those who would owe little in tax anyway. They pretend like they are protecting people. It just is unfathomable how ridiculous it is to constantly assume people are giving up their citizenship against their own will. Paranoid!
Patrick Cain, Global News, wrote on his blog last year: “as an unintended consequence (of the FBI NICS statistics) we have a window into an otherwise very secretive area of consular activity”, i.e., renunciations. Unfortunately, this is only a partial window as relinquishments cannot be seen.
http://www.patrickcain.ca/?p=2055
@Eric, re; “…the update disallows attorneys from being present for either interview, even if the renunciant does not speak English and needs a witness.”….
I can see the downside of that, but rejoice in the spoke that puts in the wheel of Canadian sited US tax/ law firms advertising US taxation & renunciation services and sucking people in through fear tactics ( ex. “without paying us big bucks, you could be barred from the US for life”… etc.) I am thinking in particular of those US law practitioners who jumped on the opportunity to extract additional big bucks from Canadians deemed US citizens, by offering to have one of their American homelander lawyers personally accompany those attending expatriation appointments (think of the billable hours for lengthy waiting in line – especially for two visits) – a recent addition of services to big fat US tax compliance practices.
re; “…parent/guardian/legal representative should not participate in any interview. (Other countries allow parents, guardians, and legal representatives to be present during formalities and even to give up citizenship on their behalf if their children/wards lack legal capacity to do so themselves…”..
Yup, yet (as I am dedicated to underscoring in anger, ad nauseum);
“…Responsibility for Child’s FBAR
Generally, a child is responsible for filing his or her own FBAR report. If a child cannot file his or her own FBAR for any reason, such as age, the child’s parent, guardian, or other legally responsible person must file it for the child. Signing the child’s FBAR. If the child cannot sign his or her FBAR, a parent or guardian must electronically sign the child’s FBAR. In item 45 Filer Title enter “Parent/Guardian filing for child.”..”….
According to FINCEN’s worldview, THOSE VERY SAME children/and others deemed legally incapable that State refuses to allow to renounce/relinquish (on the basis of lack of maturity, lack of suffcient comprehension/capability) don’t have to possess any comprehension or understanding of taxes or money, or that they are reporting to a FINANCIAL CRIMES ENFORCEMENT agency of a FOREIGN (to them) government EXTRATERRITORIALLY – the US states that they MUST comply anyway – even if they cannot be held to formulate or comprehend any of the relevant concepts and thus could not possibly be considered responsible, willful or criminal actors.And in my mind, Non-US parents could not reasonably be held proxies for obeying FINCEN’s instructions for shouldering the FINCEN FBAR burden of ensuring the child’s compliance since the NON-US parent has NO responsibility to comply with US law outside the US – and in no way has any legal relationship to the US. Yet, FINCEN states that ” a parent or guardian MUST electronically sign the child’s FBAR..”.
This is a point which has been brought up to the CBT apologists like Michael Kirsch. They seem to be able to dodge how a person can be legally incapable of comprehending citizenship, yet legally held responsible for proving that their legal local birthday money from Canadian grandma and non-US education savings account are not the proceeds of crime. If CBT twins citizenship and taxation, that is such a glaring and ridiculous contradiction that I find it interesting no US tax articles ever address it.
Someone needs to hammer that home in those pending US lawsuits.
My relinquishment in Canada took only one interview and no documents submitted prior, and no prior contact, phone interview or anything else preceded it. State is BSing about the time consumed to date.
Thanks so much, Eric, for the post and, badger, for your anger, ad nauseum.
If there is such a thing as (US) citizenship-based taxation, it seems immoral for a country as the US to be able to ENTRAP someone without capacity into a citizenship they have no use for (or that only the US has use for), especially such persons who have never been registered as US births abroad (though it makes no difference in cases where one *automatically acquires* that US citizenship), have never lived in the US, have never received any benefit from the US, will never live in the US as their family and all of their benefits come from another country, the one they were born in and have what, I consider, their only dominant nationality / citizenship.
The hypocrisy that you / we point out is lost on the legislators of the US. Michael Kirsch and other disgusting apologists, specifically in the Department of State, can rot. Many families, including their children or loved ones without capacity, wish to be free of all US entrapment, have citizenship superior to any not asked for. In the meantime, my family will stay on its side of the border in a country that has sensible residence-based taxation.
@calgary
It actually is amazing to me, that with my new passport I could actually move around the world without my government stalking me….:(
Hi Everyone:
I have an appointment to renounce in Toronto next month. It took a year for me to get this appointment and I don’t want anything to go wrong. I have become tax compliant over the past year and want out. What do I need to take with me as far as documents ie. birth certifcate etc. to my appointment. I want to be well prepared.
Thanks
Accidental
I would think that anyone who’s paying a lawyer to accompany them to the consulate, is willing to pay the exorbitant renunciation fee and endure the entire hassle of it all has thought long and hard about renouncing. They just want to create more obstacles to renouncing, treating us like we don’t know what we’re doing or trying to get away with something.
I appreciate what you’re saying, Badger, but by the same token the State Department isnt denying us legal representation to protect us from predatory lawyers.
The US is a revolving door on the way in and a spanking machine on the way out.
@ Accidental American,
Best thing is to ask Toronto consulate, as things can, and do, vary from place to place, and even at the same consulate things sometimes change over time. A lot of the consulates send an e-mail which lists what documents they require. It can vary a bit from place to place. (That may get more uniform now, as there is a list in the sample info sheet at the end of the new 7 FAM 1260 — I don’t think there was such a list in the old one, though not sure).
Generally the consulate needs birth certificate (proof you’re a US citizen), US passport if you have one (and possibly previous ones if you have them; in any event, if you don’t, you don’t), current Canadian passport or proof of Canadian citizenship – if a person doesn’t have another citizenship, they can still renounce, but the consul will likely want to very sure the person is aware of what statelessness entails/can entail, so could require a second visit), marriage certificate if name changed upon marriage.
The consulate may want you to send scans of your supporting documents and/or your DoS forms in advance of your meeting. They’ll let you know in the e-mail they send in reply to your inquiry.
Generally, if you’re missing one document at your meeting, it’s not a crisis – as generally they tell you to get it to them as soon as possible and doesn’t require another appointment. But, of course, best to have everything with you in the first place.
Great analysis, Eric!
Two things I found particularly interesting in this revision were:
Prior to this new FAM, many consulates did not require the 4079 for renunciations, although some did. The old FAM stated (fairly similar to the new one):
But the old FAM also stated:
which contradicts 7 FAM 1264.
This new manual, having got rid of that line, removes the contradiction, so hopefully the rest of them will stop using 4079.
I know several consulates replaced it with a short questionnaire, about 10 or 12 questions, most of which were name, address, date of birth type stuff, basically not containing irrelevant questions and you can complete in a few minutes. Most of the 4-page 4079’s questions are really irrelevant to the vast majority of renunciations, like probably around 99.9% of them.
Another thing caught my eye is the one-visit renunciations. Quite a few consulates have been either scrapping the first visit or replacing it with phone or electronic communication for a few years now, particularly the high-volume ones.
I see that, in this new FAM, they have gone into a lot of detail about how this should be done, I guess they wanted to standardise the procedure.
It looks like now a consulate won’t be able to entirely scrap the first “visit”, in that if a consulate opts not to have a first visit, a phone conversation will be required, which is more of a hassle than electronic communication — and definitely more or a hassle than how it’s been at the consulates where the first visit was completely scrapped.
But the FAM is clear that two in-person visits are not required. I hope that, with this new FAM stating clearly that one-visit renunciation is allowed, that will encourage the remaining two-visit ones to follow suit.
I wish they’d just overhaul/simplify it all big-time, though.
@bubblebustin, re the issue of State disallowing the presence of the individual’s lawyer at the renunciation/relinquishment appointment. I should have made clear that overall I condemn State preventing people from having a lawyer (or other witness, or translator, etc.) there if they so choose. Particularly given the high stakes for some, and the recalcitrance of the State dept. in some cases, and the oppositional tone of some consular staff (like the one I dealt with). This is an important issue, and I am certain, as you point out, that the State Dept. didn’t do this to protect individuals, but rather to deprive them of counsel, advice, support and a witness to the proceedings and to the content of the interview.
As you point out, the fact that someone arranges for counsel to attend the renunciation/relinquishment would tend to support the seriousness of their intent and that they have come prepared to follow through.
The State Department has chosen to create more obstacles, and has committed itself to set its power against those exercising their US and human right to expatriate. Wonder if this newest rule would tend to support our complaint to the UN? After all, why wouldn’t people have the right to have legal counsel present if they so choose?
@Badger
And why wouldn’t people have the right to change their nationality?
Is it just me? The way I read this, the $2350 fee now seems to apply for both renouncing and relinquishing. They are careful to say the fee is for processing a CLN. Gotcha!
@Duke of Devon:
I read it that way that too. The “processing” of a CLN costs $2,350, not the renunciation. Since both renunciations and relinquishments require processing a CLN, the processing charge would also apply to relinquishments under this logic.
Two possible unintended benefits:
1) The US State Department will need to budget and report this planned income giving better visibility of total renunciations and relinquishments.
2) Moderate and low income US citizens naturalizing in Germany may be able to obtain German citizenship without giving up their US citizenship under Germany’s “hardship” rules regarding excessive expatriation costs.
– German bureaucrats apparently have changed the procedures for US citizens with low and moderate incomes allowing them to relinquish rather than renounce to avoid the high fee.
– Several other countries, including Austria, Netherlands and Norway, have similar hardship rules allowing retention of the prior citizenship if the renunciation cost is high.
@Duke,
Looks like the are leaving the door open to head in that direction, though so far this is only in their information for renunciants, not relinquishers. But I’ve suspected for a while they might do that, and would not be surprised to see relinquishers get hit with the fee in the future as well.
The saddest part of all of this -> the DoS is just tweaking the process of giving up US citizenship, not stepping up to the plate and telling Congress “Humm, we have a problem here that needs to be addressed urgently. Other countries don’t have their citizens lining up at the Embassy door to dump their citizenship – and this is, we feel, the most valuable citizenship in the world so there is clearly an problem”. Nope – and neither is the Treasury or IRS standing up and saying “hey, there’s a problem here”
Instead the message is clear -> “you don’t want the world’s most valuable citizenship? Don’t let the door hit you in the ass on the way out”
A very sad commentary indeed.
@Badger, “As you point out, the fact that someone arranges for counsel to attend the renunciation/relinquishment would tend to support the seriousness of their intent and that they have come prepared to follow through.
The State Department has chosen to create more obstacles, and has committed itself to set its power against those exercising their US and human right to expatriate.”
I never thought of that and you are right…no its brilliant!!!
I am a reasonable intelligent guy but yes I do think its a good idea to have your own snake with you if you are going into the viper pit!!
Yes, you should be able to have legal counsel to explain anything to you!!!