We’ve previously discussed the rising trend of of American emigrants choosing not to register their non-U.S.-born children as U.S. citizens. Children who don’t get registered and don’t hold a passport from a Visa Waiver Program country have to apply for a visa in order to visit their relatives in the United States.
Along those lines, over at Wikipedia’s Reference Desk an American in the Netherlands recently asked for advice about getting a U.S. visa for his daughter. His daughter is a Russian citizen & passport-holder and has Dutch permanent residence. However, he reports that he’s encountering some resistance from his local U.S. consulate:
I’ve been advised that someone (in this case a child, my daughter) who ‘has a claim to US citizenship’ – in this case because I am in fact an American citizen – is therefore ‘not eligible for visa to visit the US’. So I’m looking for some reference to what rules or law that might be? My daughter has a Russian passport, permanent Dutch residence, and we don’t plan to apply for American citizenship for her – in fact we’re in the process of obtaining Dutch citizenship for her, me and her mother. Can someone help me find a reference or rule or law that would explain why, if you could be an American citizen, but aren’t one, you would be denied the possibility of a visa. Thanks if you can help with a concrete reference or link. I’ve been googling but its an unusual circumstance.
He went on to clarify:
My advice was in fact the US Embassy. They received my daughter’s visa application, and sent me the message I quoted from above. My daughter is not a US citizen, and there isn’t a plan to be one. I’m trying to find good info with references to prepare for negotiating with the Embassy. I wouldn’t think that they can impose US citizenship on her. Thanks anyone who can point me to hard information.
The State Department’s own Foreign Affairs Manual in fact clarifies that the child can apply for a visitor visa rather than being forced into making a Consular Report of Birth Abroad. Specifically, 9 FAM 202.1-2(a), formerly 9 FAM 40.2 Note 1, says:
a. Processing Visa Applications for Aliens Who May Have a Claim to U.S. Citizenship:
(1) Nonimmigrant Visa Applicants: You may not issue a visa to an individual who has been determined to be a U.S. citizen. However, if a nonimmigrant visa applicant with a possible claim to U.S. citizenship is unable or unwilling to delay travel until he or she has been able to obtain documents to establish that status, as determined by the post’s citizenship and passport officer, you may presume that the applicant is an “alien” pursuing a nonimmigrant visa application. If you find the presumed alien eligible to receive the visa then you may issue the visa.
This subsection was last modified in November 2015. After the jump I discuss the history of updates to 9 FAM 202.1-2.
Summary of changes
The current 9 FAM 202.1-2 used to be located at 9 FAM 40.2 N1 through N3. N1 para. (a) discussed non-immigrant (tourist, student, temporary worker, etc.) visa issuance to possible U.S. citizens; N1 para (b) discussed immigrant visa (i.e “green card”) issuance; N2 discussed children born in the U.S. to parents on non-diplomatic official assignment for foreign governments; N3 discussed use of foreign passports for U.S. entry by confirmed-dual-citizen children of foreign government officials.
| Date | Summary of changes |
|---|---|
| 31 Aug 2004 | Updated N3 to refer to the then-new Department of Homeland Security. |
| 12 Aug 2008 | Tried to clean up grammar in N1 but failed miserably (e.g. “If you find the presumed alien eligible to receive the visa issued the visa”). |
| 6 May 2011 | Finally fixed the three-year-old grammatical failures in N1. |
| 9 Sep 2014 | Added cross-reference to 9 FAM 42.71 N4 in N1 para. (b) (first substantive change to N1 since May 2011). |
| 27 Aug 2015 | Added “delay travel” in N1 para. (a). |
| 9 Oct 2015 | Added “until he or she has been able to obtain documents” in N1; updated cross reference to list of foreign officials “not subject to the jurisdiction of the United States” in N2. |
| 18 Nov 2015 | Moved N1, N2, and N3 to 9 FAM 202.1.2; broke down former N3 into numbered paragraphs (without any change to text); added language about rejecting immigrant visa applications when citizenship issues cannot be resolved on the same day |
Side-by-side comparison of old and new version
All cross-reference links in the below text were added by me. Additionally, I added paragraph breaks to the August 2004 version of N3 (it was all one giant paragraph in the original), to facilitate comparison with the November 2015 version.
| August 2004 version | November 2015 version |
|---|---|
| 9 FAM 202.1-2 Visa-related issues with U.S. citizens | |
9 FAM 40.2 N1 Processing Visa Applications for Aliens Who May Have a Claim to U.S. Citizenship |
a. Processing Visa Applications for Aliens Who May Have a Claim to U.S. Citizenship: |
| a. Although a consular officer may not issue a visa to an individual who has been determined to be a U.S. citizen, if a nonimmigrant visa applicant has a possible claim to U.S. citizenship but is unable or unwilling to obtain documents to establish that status, as determined by the post’s citizenship and passport officer, the visa officer may presume that the applicant is an “alien” pursuing a nonimmigrant visa application. If the presumed alien is found eligible to receive the visa for which application was made, the visa may be issued prior to the final determination of citizenship status. | (1) Nonimmigrant Visa Applicants: You may not issue a visa to an individual who has been determined to be a U.S. citizen. However, if a nonimmigrant visa applicant with a possible claim to U.S. citizenship is unable or unwilling to delay travel until he or she has been able to obtain documents to establish that status, as determined by the post’s citizenship and passport officer, you may presume that the applicant is an “alien” pursuing a nonimmigrant visa application. If you find the presumed alien eligible to receive the visa then you may issue the visa. |
| b. If an immigrant visa applicant has a possible claim to U.S. citizenship, the post’s citizenship and passport officer must resolve the citizenship issue before the visa officer may take final action on the visa application. | (2) Immigrant Visa Applicants: Under 22 CFR 40.2(a), a U.S. citizen is not eligible to receive an immigrant visa. If an immigrant visa applicant has a possible claim to U.S. citizenship, post’s citizenship and passport officer must resolve the citizenship issue before you may take final action on the visa application. If the matter cannot be resolved that same day, the visa officer should deny the immigrant visa application under INA 221(g) pending resolution of the citizenship issue. Any doubts regarding the applicant’s U.S. citizenship status must be resolved before the visa officer may take final action on the visa application. |
9 FAM 40.2 N2 Child Born in the United States to Aliens on Official Assignment |
b. Child Born in the United States to Aliens on Official Assignment: |
| A child born in the United States to alien parents who are in the United States on assignment for a foreign government is considered to be a U.S. citizen, except a child born to alien parents who at the time of the child’s birth were “not subject to the jurisdiction of the United States”, such as ambassadors, envoys, ministers and other persons as set forth in 7 FAM 1116-2.2. Whether any claim to citizenship exists in doubtful cases should be determined by the post’s citizenship and passport officer. | A child born in the United States to alien parents who are in the United States on assignment for a foreign government is considered to be a U.S. citizen. However, a child born to alien parents who, at the time of the child’s birth were “not subject to the jurisdiction of the United States”, such as ambassadors, envoys, ministers and other persons as set forth in 7 FAM 1111 (d)(2) are not considered U.S. citizens. Any doubtful cases should be determined by post’s citizenship and passport officer. |
9 FAM 40.2 N3 Applications for Visas for Certain Dual National Children |
c. Applications for Visas for Certain Dual National Children: |
| The consular officer should advise parents who apply for visas for dual national children that regulations prohibit the issuance of a visa or other documentation to a U.S. citizen or national for entry into the United States as an alien. The children of foreign government officials, however, may use their foreign passport for entry into the United States. | (1) You should advise parents who apply for visas for dual national children that regulations prohibit the issuance of a visa or other documentation to a U.S. citizen or national for entry into the United States as an alien. The children of foreign government officials, however, may use their foreign passport for entry into the United States. |
| After the U.S. citizenship of a child has been determined by a citizenship officer, the consular officer may, to avoid delay or difficulty, give a written statement to the parents for presentation to carriers or immigration officials. The statement should make clear that the bearer of the foreign passport is a dual national child of a foreign government official or employee who is traveling to the United States on official business and as such may enter the United States on the foreign passport as an exception to the provisions of INA 215(b) regarding valid passport requirement. | (2) After the U.S. citizenship of a child has been determined by a citizenship officer, the consular officer may, to avoid delay or difficulty, give a written statement to the parents for presentation to carriers or immigration officials. The statement should make clear that the bearer of the foreign passport is a dual national child of a foreign government official or employee who is traveling to the United States on official business and as such may enter the United States on the foreign passport as an exception to the provisions of INA 215(b) regarding valid passport requirement. |
| A child under 12 years of age who is included in the passport of an alien parent in an official capacity may be admitted if evidence of U.S. citizenship is presented at the time of entry. A determination of the child’s citizenship should be made by citizenship officer prior to departure from a foreign country and the parent should be instructed to have evidence of such citizenship available for inspection by the admitting Department of Homeland Security officer. | (3) A child under 12 years of age who is included in the passport of an alien parent in an official capacity may be admitted if evidence of U.S. citizenship is presented at the time of entry. A determination of the child’s citizenship should be made by citizenship officer prior to departure from a foreign country and the parent should be instructed to have evidence of such citizenship available for inspection by the admitting Department of Homeland Security Officer. |
Conclusion
One thing in particular worries me about the most recent changes. The old 9 FAM 40.2 N1 used to state that a visa could be issued to an an applicant who “has a possible claim to U.S. citizenship but is unable or unwilling to obtain documents to establish that status”. This at least tacitly admits the possibility that the person could go their whole life without “obtain[ing] documents to establish” U.S. citizenship. However, the “unable or unwilling to obtain documents” passage was changed in the new version of the section to say “unable or unwilling to delay travel until he or she has been able to obtain documents”, which makes it sound more temporary.
I’m not sure yet whether this should be cause for concern. Does anyone else here have any recent experience?
It sounds like the same mentality that saw the raise in renunciation fees and also applying it to relinquishments.
Keep ’em on the plantation.
Maybe this is a good time and place to ask if we ever got a definitive answer to the question that follows. Please let me know If I should re-post this in a different thread.
Is a person born in a foreign country to a US citizen parent (at the time of the child’s birth) automatically a US Person/Citizen for the purposes of having the obligation of FATCA and IRS tax, FBAR, etc filing? Or, is the person immune from all of these tax issues if they never register their birth and claim US citizenship, to the point that in the eyes of the US and the IRS they are in fact _NOT_ US persons or US citizens?
I see Eric’s point that the changes above lean towards the view that the US considers the “right to claim US citizenship” as actually _being_ a US citizen. Specifically, if such a person is not eligible for a visa due to their “unclaimed but righteous” US citizenship, the US would include other obligations (taxes) as well.
I personally continue to advise my friends who are Accidental Americans born outside of the US to DO NOTHING with regards to FATCA and US taxes (if they never claimed US citizenship), and not to fear traveling to the US. I don’t recall anybody ever disagreeing with this plan for this group of people. Anybody disagree now?
May be related, @WhatAmI…
Although I don’t trust it as gospel, I will take for my own purposes / my son’s what I see changed / NOW stated on this US Embassy & Consulates in Canada site (https://ca.usembassy.gov/u-s-citizen-services/birth/transmit-citizenship/) — U.S. Citizen Services (the same department through which we exptriate a deemed US citizenship — and which I will not enter into for my son who was NEVER registered as a US Citizen Abroad, never lived in the US, never had any benefit from the US, only from the country in which he was born and in which he has always lived – Canada). There it NOW is printed — with no fanfare or notice to any who this would affect, including my son and others like him who cannot renounce a US-deemed US citizenship because of lack of requisite mental capacity).
http://isaacbrocksociety.ca/expat_tax/comment-page-117/#comment-7825163
Knowing what I know now, including what I just read in looking for an answer for someone re adoption of a US child (see my comment, 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/comment) and the amount of money I paid for advice and assistance to US tax law, US tax accounting and immigration/nationality professionals in Washington, DC, I too would go with the way Phil sees the reporting of TFSA, RDSP and RESP.
At this point, I don’t even know if what I am reading (nicely tucked away with no fanfare) is as I now interpret it. Unfortunately, I got no money-back guarantees.
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/comment-page-2/#comment-7825141
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/
I’ve always taken the view that if a child has a non-US birthplace, they are effectively FATCA-proof and able to stay off the radar and remain happily non-compliant forever, so who cares what the US government thinks? (Or at least for a few more decades before we’re all registered in a global DNA database.) Questions about claimed vs. unclaimed citizenship are just pointless theological fun if you don’t need to fuss about taxes.
Where it potentially gets complicated is when parent(s) and child travel to the US. If the child has a non-US passport then questions could be asked if either parent shows a US passport or non-US passport with US birthplace, though of course it’s entirely possible that the child was never entitled to US citizenship if the parent(s) didn’t meet the criteria for transmission.
In the case of a parent registering a child’s birth abroad and claiming citizenship, I would not be too worried about future problems just yet. I did this for my daughter, long ago in a previous decade when I was unaware of the tax issues, but I don’t think it’s more than a piece of paper buried in the state department’s passport files. Possibly one day they’ll have systems sophisticated enough to notice that a visiting Canadian with name X born on date Y in city Z matches a US citizen with the same coordinates. Certainly it hasn’t happened yet. And I very much don’t expect she’ll be hearing from the IRS anytime soon, as there’s been no passport renewal or SSN application.
“Does anyone else here have any recent experience?”
Not me.
But are the wording changes cause for concern?
The concern level stays the same. All that the new Nonimmigrant visa application wording does is double down on how inconceivable it is to them that someone wouldn’t want American citizenship.
Even though the man above is a US citizen, the US embassy has no way of knowing whether he ever married his daughter’s mother, or if not, whether he commits to her support. So for all they know, the daughter indeed lacks US citizenship. (Note that the strategy is not available to children of US citizen mothers.)
@calgary411 Is the use of the term “entitled to” new. To me that means if you want it, you can have it??? Thanks
Cheryl,
As far as I know — on US Department of State sites I have read and re-read over the years, the term, *entitled to* is new (at least to me). I read it the same way as you do. Is that just because we so much want it so?
Why do we see this wording now? And, why has it changed, if it is not to mean what we see it as meaning?
I tried very hard for someone in the US Department of State to tell me / us if there was a claim to US citizenship for my children or if it was automatic as I had been told by those I hired and paid for help.
To me, *ENTITLED TO* seems the only way for fairness, i.e. a claim to US citizenship, if the facts permit, for *Accidental Americans* with their full knowledge of consequences, when they are of age and with requisite mental capacity to understand. A claim / a choice as I had when I came to Canada, chose to become a Canadian citizen as I wanted to raise my Canadian-born children as only Canadian citizens as in *A Canadian is a Canadian is a Canadian*.
Here’s a discussion from 2010 called
Multiple Citizenship, Identity and Entitlement in Canada
Audrey Macklin and François Crépeau
http://irpp.org/wp-content/uploads/assets/research/diversity-immigration-and-integration/multiple-citizenship-identity-and-entitlement-in-canada/IRPP-Study-no6.pdf
It states, “Relatively few states provide for automatic and unconditional jus soli citizenship, but the exceptions include most New World states of the Americas, among them Canada, the US, Mexico, Brazil, Argentina, Venezuela and Chile. France has a “double jus soli” rule, whereby a child born in France to a par- ent who was also born in France automatically acquires French citizenship.”
I made a follow-up post that has disappeared or I posted it in another thread and can’t find it. It said:
This page is incomplete and misleading: https://ca.usembassy.gov/u-s-citizen-services/birth/transmit-citizenship/
It’s misleading and incomplete if you happen to not notice the first sentence that states the following discussion applies to children under the age of 18. It does not include the full rules for older people.
Here is a good history of the “US Citizenship Acquired by Birth Abroad” changes over the years:
http://www.americanlaw.com/citabrd.html
This doc (INA 301) explains who is a US citizen at birth: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9696.html
This doc (INA 320) explains how children born abroad are automatically US citizens if the family moves back to the US prior to the child being 18: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9983.html#0-0-0-413
This doc (INA 322) explains how child born and permanently residing outside the US can go about “acquiring certificate of citizenship”: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-10018.html
INA 322 is the one we are interested in. Note that the first two describe automatically acquiring US citizenship. INA 322 uses these words:
and
It seems to say that the child “shall become a citizen of the United States” ONLY after the paperwork and approval and oath. Therefore, if you don’t do any of that, how could you automatically be a US citizen? INA 322 could easily lead people to use the words that people to whom INA 322 applies are “entitled” to apply for US citizenship.
The docs above of course apply today, so one must also consider the laws at the time. The link I gave above is helpful, but not a US Gov doc:
http://www.americanlaw.com/citabrd.html
Here is your comment, WhatAmI.
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/comment-page-2/#comment-7831760
Going further…
https://ca.usembassy.gov/u-s-citizen-services/citizenship-claims/
Note: I don’t want to help my adult son CLAIM a US citizenship, so I won’t be helping him do any of this! I am sure there are many others of us who will welcome this further information WhatAmI has dug out of the current pages of U.S. Embassy & Consulates in Canada / U.S. Citizen Services / Citizenship CLAIMS.
I want to be reading this correctly. Am I?
If so — Thank you, WhatAmI.
Now, if you are a person who it a US citizen at birth per INA 301, which explains who is a US citizen at birth: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-9696.html (i.e., I was told that my children were US citizens from their first breath – their birth to two US citizen parents in wedlock in Calgary, AB, Canada) but have not CLAIMED that US citizenship (as above), what is your status? Doesn’t quite jive, to me at least.
@Calgary411,
The rules of acquiring US citizenship at birth are different depending on if both parents were US citizens, or just one, and if the child was born out of wedlock.
Would you agree that your son acquired US citizenship at birth due to INA 301?
Such persons indeed seem to be US citizens without having to “apply” and take and oath. Sure, one registers and gets a passport, but this doesn’t appear to be the same as claiming an “entitlement”. In the latter case you have to prove your history and they grant you citizenship (INA 322), but in your son’s case (INA 301) I think it looks just as automatic as had he been born in the US.
I think a lot of web pages, including the one your just quoted, are sloppy and mix the two cases together, perhaps because the documentation required is the same in both cases and you apply to the same department. Still, it seems that INA 322 people are “claiming an entitlement” whereas INA 301 people are just making application for official documentation of what they already are and have been since birth.
Still the question remains that for INA 322 people, can the IRS claim you as a US person if you haven’t made application that has been accepted, taken the oath, etc, as quoted above.
Unfortunately, our interpretation of their laws doesn’t matter in the slightest…
@WhatAmI,
Sigh. Yes. Back to square one.
(My then-husband and I arrived in Canada in 1969 as *landed immigrants*, now termed permanent residents. We became Canadian citizens in 1975. Our son was born in 1974. Canada recognized dual citizenship in 1976. Would my son’s Calgary birth certificate recognize he was a Canadian citizen at birth OR would his US-deemed automatic US citizenship per INA 301 take precedence over Canadian citizenship by birth in Calgary?)
@All
Q. Do those children born outside the United States to parents who have the statutory right (as has been redefined over the years) automatically have U.S. citizenship imposed on them regardless of the wishes of the parents (and later the children) or do those children have the right but NOT the obligation to accept U.S. citizenship?
A. They have the right but NOT the obligation to accept/register themselves as U.S. citizens if they so choose.
This discussion has been going on since the inception of Brock and has been the subject of numerous threads.
Furthermore, the answer seems to depend on who you ask (U.S. based immigration lawyers who believe that everybody in the world wants to be a U.S. citizen) or people outside the U.S. (who recognize that the forcible imposition of U.S. citizenship on those born outside the U.S. would be an unjustifiable extension of U.S. law beyond the U.S. borders). Seriously, do you really believe that the U.S. can deem anybody in the world to be a U.S. citizen?
Some explanation follows …
1. The grant of citizenship to people born outside the U.S. is determined ONLY by statute (hence the shifting laws) and NOT by the 14th Amendment of the U.S. Constitution. This means that the grant of citizenship to those born outside the U.S. is in the discretion of Congress.
2. As everybody knows, under the INA there are only two ways to obtain U.S. citizenship: (A) birth or (B naturalization. Birth means that you ARE a citizen from birth and naturalization means that you BECOME a citizen after birth.
3. The INA is a statute that presumes that every life form on the planet is either wanting to live in the USA and/or wants to be a citizen of the USA and essentially prescribes conditions under which residence or citizenship can be granted or recognized.
4. Therefore the correct way to read the statute “this person IS a citizen” is that:
these are the conditions under which we will recognize somebody is a citizen if that person wants to be recognized as a citizen.
5. The conditions acknowledged in “4” need to be proven by objective, extrinsic and reliable evidence. Even if somebody wants to be a citizen, it won’t be recognized unless those conditions are proven (which is what this post is about).
6. Therefore, unless the parent or later the child makes the claim of citizenship then the person could not be recognized as a U.S. citizen – period. Without being recognized as a U.S. citizen you are NOT a U.S. citizen. Don’t believe me? Just try to enter the U.S. based on nothing more than “I claim I am a U.S. citizen).
7. There are numerous examples of information from consulates and the State Department (some of which is discussed in the comment thread) making this point clear. (Much of this has been discussed in other posts.)
8. There is not a single known instance of the U.S. Government forcibly imposing U.S. citizenship on somebody born outside the USA. (They are not going door to door and forcing identification of where the parents of children were born). In fact, if you are born outside the USA there is a presumption of alienage – that is a presumption that one is NOT a U.S. citizen (how many would kill for that?)
9. If the parents register the kid as a U.S. citizen, it is probably “game over” and the child IS a U.S. citizen. But even on that point, I believe that it may be possible to argue that a kid whose parent committed “citizenship crime” against his child, by registering him as a U.S. citizen might be able to defend against U.S. citizenship.
Hey, if one can’t renounce U.S citizenship until 18, then maybe one can’t accept U.S citizenship until 18.
10. I attempted to raise this discussion in an extensive post in 2015 which is here:
http://isaacbrocksociety.ca/2015/07/26/help-can-the-united-states-impose-us-citizenship-on-those-born-outside-the-us/
There are additional comments at that post.
A suggestion moving forward …
The Isaac Brock Society (whether you love it or hate it) is the most read and most influential source of information on all things U.S. (probably in the world). I believe that the Isaac Brock Society should assume a leadership role by suggesting that the answer is:
Nobody born outside the U.S. is a citizen UNLESS he/she BOTH:
1. Meets the statutory conditions making he/she eligible to receive the statutory recognition of U.S. citizenship; and
2. Voluntarily (directly as an individual or vicariously via a parent) be registering that U.S. citizenship.
The problem is that this is the first time in history that U.S. citizenship has been perceived to be such a horrible thing to have. Neither the State Department nor U.S. based immigration lawyers have adjusted to the idea that U.S. citizenship is now a form of cancer (unless you want to live in the United States). Even the border guards believe they are helping you by telling you that you are American. These people have not caught up with the reality that true Obama legacy has been to make U.S. citizenship the most toxic citizenship in the history of the world.
Yup, “Change you can believe in!”
It’s time to articulate the law that is consistent with the Obama legacy …
Brockers have always said that in the area of U.S. tax that lawyers make the law ….
It’s time for the Isaac Brock Society to “lay down the law” on this topic! The law is that nobody born outside the United States is automatically a U.S. citizen. If you meet certain conditions, they you can claim it if you want!
@USCA: I agree with your analysis. That someone born abroad has to actively claim US citizenship and prove that they are eligible makes it optional. Somebody who cannot or will not claim it will not get it.
In reference to your conclusion I’d like to add, as a Democrat and Obama voter, that I completely agree that this citizenship has become toxic abroad because of Democrats and Obama. It is, unfortunately, part of their legacy. Never before would I have thought I’d have to contemplate renunciation. Neither Bush nor Trump could have achieved this…
@Calgary411,
I’m confident that your last questions are straight-forward and the answers well known. My situation is identical to your son’s, except the countries are reversed and I was born 20 years earlier to two Canadian parents in the US. My family moved back to Canada when I was a child and I never took advantage of any aspect of US citizenship. I relinquished my US citizenship over 40 years ago but of course I didn’t have to prove and document it until recently. Both countries recognize that I was born with both nationalities.
With two US citizen parents, US law INA 301 says your son is a USC at birth. It’s item (c). Note that item (a) of the same INA 301 describes people born on US soil. Nobody argues that (a) is wrong in any way. (It’s CBT that is wrong, right?)
Being born in Canada, Canadian law says your son is a Canadian citizen since birth.
Since both my birth history and that of your son appears in the same law INA 301 as items (a) and (c), I think I can say that the two of us were born with identical US citizenship status, mine being no more powerful or legal than his. According to US law as I read INA 301.
The fact that Canada didn’t recognize dual-citizenship until 1976 and the US not until (I think) 1986 doesn’t seem to mean anything to this discussion. I believe that it’s a fact that each country sets their own laws and another country can’t do anything about it. Dual-citizenship existed without any direct action of the baby being born, so both countries eventually had to deal with it. It took many decades, but it got done. I’ve never looked at our Canadian laws but the US documents use the phrase that “dual-citizenship is tolerated but not recommended”.
For your son living in Canada, there is no notion that I can see of US citizenship having precedence over Canadian citizenship. Well, not until Canada passed the IGA and enabling legislation for FATCA reporting.
The only example of precedence I can think of is that it occurs when a dual commits a crime in one country or the other and gets caught. I believe the local country has you and can do undo you, their citizen on their land, according to their laws and the country of your other citizenship probably cannot do anything to help you. I’ve seen this stated explicitly as a warning in the travel sections of government websites, but I forget if it was a Canadian or US website, or both.
@USCitizenAbroad,
I agree with most of what you’ve just written, but as is the case of most posts on Brock, including my own, you’ve described the laws as they should be, not as they are written and potentially/presumably enforced by US authorities.
Yes, unfortunately, virtually all US citizenship laws, FAM guides, interpretations, websites and blogs are written from the point of view that everybody wants to have US citizenship, leaving us to glean from the poorly-worded laws where people fit who don’t want it. I think everyone agrees having US citizenship wasn’t a bad thing until recent years when they both started enforcing old laws (FBARS, tax filing and requiring alleged USCs to use a US passport to enter the US) and created new ones (FATCA).
After all these years, only yesterday I finally found INA 301 and INA 322 and considered the difference between them . INA 301 describes those who are US citizens at birth:
Note that there is NO mention that one must make application and have it approved for citizenship under INA 301. I see no hint that it could be in any way optional, unless of course they could be persuaded to add “Canadian” to item (b)!
The phrase “and subject to the jurisdiction thereof” has been the subject of much debate for over 150 years. The original debate in Congress seems to focus on “blacks and Indians”. I think it can be ignored for our purposes? See http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/
I think it’s clear that the US considers that people in (a) and (c) have equal status as US citizens, and I think it’s clear that the US does not consider it optional. Some people might phrase this as saying “Congress does not have the power to deny US citizenship to anyone who falls under INA 301.” in part or in whole because this comes from the 14th Amendment. In fact, I read that it was entrenched into the Constitution so Congress could _not_ change it.
INA 320 describes another automatic case: that when the child moves back to the US permanently.
INA 322 reads quite differently. In my words, it applies to a different set of people (born abroad to only 1 US parent), and describes how one must make application and the claim must be judged and approved and an oath taken. NOT in my words, the title is “Children born and residing outside the United States; conditions for acquiring certificate of citizenship” and the opening paragraph clearly says “may apply for naturalization on behalf of a child born outside of the United States”. One of the requirements is “(3) The child is under the age of eighteen years.” Another is that the child has to be in the US when the application is made: “(5) The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status. ”
It seems to me that people who fall into INA 322 instead of INA 301 are NOT USCs from birth. If one is approved under INA 322, it is a naturalization. Therefore, it hardly seems automatic and in fact the opportunity appears to expire at age 18. For this last point, I’ve read elsewhere that an adult can still claim USC naturalization based on INA 322: https://ca.usembassy.gov/u-s-citizen-services/citizenship-claims/
BUT, there is one detail that I can’t figure out. The very first requirement says “(1) At least one parent (or, at the time of his or her death, was) is a citizen of the United States, whether by birth or naturalization.”
“At least one parent”??? To me, those words include having TWO parents who are USCs. If two parents are USCs, then the child would fall under INA 301 with (I’m leaning towards believing) no choice in the matter as far as the US is concerned.
So, without arguing what the law SHOULD be (totally optional for our advantage), are there any holes in my interpretation? The big one still being that this is the law today and it’s hard to determine if it was different back in the day.
As to the Foreign Affairs Manual:
Let’s set aside what I think is our main issue in this thread just for a moment: that of people not wanting their US-citizenship-eligible children to have US citizenship forced upon them….
Imagine somebody who WANTS the child to have US Citizenship and wants to leave with the child to the US right away but doesn’t have all of the documents available in order to prove previous residence, or they are not sure if they fit the requirements. Let’s say they are at an US Consulate in a war-torn country and the child has another citizenship (perhaps that of the war-torn country in question). THEN THE IGNORANCE OF THE CONSULAR OFFICIALS ABOUT THE F.A.M. REGULATION COULD GET THAT CHILD / PARENTS KILLED if they don’t grant the visa and let the family in question get the hell out of there.
I think my last post is clear, but a couple of points about my post from March 14, 2017 at 10:06 pm.
The bolding is unintentional. I did not add bolding for any emphasis.
Right before the first blockquote I wrote: “INA 322 is the one we are interested in. Note that the first two describe automatically acquiring US citizenship. INA 322 uses these words:”
The mention of “the first two” refer to the first two documents above, INA 301 and INA 320, NOT the first two items in INA 322 that follows.
@ WhatAmI,
Re: “The bolding is unintentional. I did not add bolding for any emphasis.”
I can try to take the bolding out if you’d like.
If I can’t fix it, I can add a line at the top “Update: WhatAm I adds, “The bolding is unintentional. I did not add bolding for any emphasis.”
Let me know if you’d like me to.
@pacifica777
Sure, please go ahead with both of your suggestions. Thanks!
“The problem is that this is the first time in history that U.S. citizenship has been perceived to be such a horrible thing to have. Neither the State Department nor U.S. based immigration lawyers have adjusted to the idea that U.S. citizenship is now a form of cancer (unless you want to live in the United States). Even the border guards believe they are helping you by telling you that you are American. These people have not caught up with the reality that true Obama legacy has been to make U.S. citizenship the most toxic citizenship in the history of the world.”
I couldn’t agree more. It’s no exaggeration when I say that the US government is the single biggest threat to Americans living abroad. If that creates cognitive dissonance with anyone who hears it, too bad. I’d like them to prove otherwise.
@Whatami
Thanks for your comment. You raise a number of interesting points/issues.
You describe various sections of the INA including S. 301, S. 320 and S. 322.
S. 301 is part of the sections that describe acquiring citizenship by birth. S. 320 and S. 322 talk about acquiring citizenship by naturalization. I don’t see a discussion of S. 320 and S. 322 has any particular bearing on the issue.
The thrust of your post is at:
Although I am not sure how relevant this is, is is NOT the case that people in (a) and (c) have “equal status as U.S. citizens”. The difference is that those in category (a) have 14th amendment protections and those in category (c) do NOT have 14th amendment (meaning they can be stripped of their citizenship). Interestingly those described in S. 320 and S. 322 (because of naturalization) are also 14th amendment citizens. That said, I am not sure whether that is helpful or not.
This brings us back to the original questions which are:
1. Should S. 301(c) be taken literally which would mean that we interpret the statute exactly as it is written and ignore the context (which is the presumption that everyone on the planet wants to be a U.S. citizen)?
2. If yes, we take it literally, and interpret it to mean that everybody born outside the USA to USC parents is a U.S. citizen, where would that person be treated as a U.S. citizen? In the USA only? In both the USA and Canada? Where?
3. The answer to Q. 2 depends largely on whether the USA has the right under international law to force U.S. citizenship on the citizens of other nations who do NOT reside in the USA. Should this be the correct interpretation? Is this how the law is understood outside the narrow confines of U.S. based immigration lawyers?
4. What to do?
I don’t see this as clearly as you do. I do NOT believe that the USA can make laws forcing U.S. citizenship on the citizens of other nations. For the US to be able to impose citizenship on the citizens and residents of other nations is actually an act of war. In fact the U.S did go to war with Britain (1812) over this very issue. For this reason alone, I don’t believe that S. 301 should be interpreted in this literal manner.
I note also that the State Department (sensibly) clearly does NOT interpret S. 301 to mean that people born abroad are automatically U.S. citizens. It requires clear proof of objective facts. No proof. No citizenship. It’s as simple as that. Furthermore, there is no law that requires people born abroad to bring all their evidence to the State Department for some kind of adjudication. In fact people born outside the USA are presumed to be aliens.
I suppose a technical question could be:
Could somebody born abroad actually have met the requirements for transmission of citizenship, but not be able to prove the requirements and still be a U.S. citizen, even though the State Department won’t issue the passport?
For this combination of reasons, I don’t believe that people born abroad ARE automatically U.S. citizens. As a result, one should proceed on the basis that people born abroad to U.S. citizens are NOT automatically U.S. citizens.
I suppose the response would be:
Well, yes, but this doesn’t change the fact that S. 301 clearly says they “shall” be U.S. citizens. The issue is NOT what it says. The issue is whether it should be interpreted literally or contextually.
But, after all this we are no further ahead. So, every can and should make their own decision, based on their specific circumstances.