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?
@ WhatAmI
“Well, yes, but this doesn’t change the fact that S. 301 clearly says they “shall” be U.S. citizens. ”
I hope you didn’t take “shall” to mean the future tense, as in “they will be given/granted US citizenship.”
“Shall” is a formal legal, prescriptive form. Websters Dictionary says that “shall” expresses “determination, compulsion, obligation or necessity.”
“Shall” is used in many contracts to express contractual duties. Or in the Ten Commandments (Thou shalt not kill”). Or in legal phrases such as “The fine shall not exceed $100.” In all these cases it does not mean future tense. Again, it expresses determination, compulsion, obligation or necessity. I would understand that to mean there are no options – citizenship is compulsory.
Thank you for your hard work.
@USCitizenAbroad,
More good points!
You say you don’t see the relevance of INA 320 and 322. Brokers are wondering if they or their children are automatically US citizens if born abroad to US parents. People may have 1 or two US parents, and may or may not have ever lived in the US. These 3 INA sections covers all of the possibilities, so they are all completely relevant. @Calgary411’s son appears to fall under INA 301, and a friend of mine falls under 322.
I can’t find anywhere that people in category 301 (a) have 14th amendment protections and those in category (c) do NOT have 14th amendment (meaning they can be stripped of their citizenship). Citations, please. The text of the 14th Amendment includes both “born in” and “naturalized”:
But I agree with you, having these protections or not has no bearing on whether or not one is on the hook for FATCA and taxes, which I believe is all anybody cares about.
Your numbered questions:
1. I think people are worried about how the US/IRS interprets the laws. One’s own interpretation will help them sleep at night but won’t protect them from the US/IRS/FATCA.
2. I don’t see the point of this question. A dual citizen for the most part is treated as a citizen of whichever of the two countries they are in at the time. Notwithstanding FATCA, I don’t think either country gives a crap about the other citizenship the person may hold. Whatever the answer is to this question, it doesn’t seem to have anything to do with this discussion.
3. We’ve both and everybody else agrees the problem is the laws are written from the point of view everybody wants US citizenship and, the laws are written to guarantee and protect those citizenship rights. In light of CBT and FATCA, there are now people who don’t want US citizenship and this is not covered in the laws. Or, if the existing laws literally apply to our case, yes they are now forcing USC on people who don’t want it. I could say that your statement “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 be stated as “whether the USA has the right under international law to force U.S. citizenship on the children of US citizens who do NOT reside in the USA.” That’s the question, and that’s what we want to know. Again, the laws were written to guarantee and protect those rights, but we view it as being forced against our will and it should be optional. Besides, having US citizenship is not the problem. CBT is.
Is it optional? People who have tried and failed to claim relinquishment know it’s not easy to give up USC. The US doesn’t just accept that you don’t want USC, and aren’t swayed by the fact that you swore an oath to Canada or a lawyer or notary in Canada. Working as a clerk in a hospital counts but working for the CBC does not. One could argue that the CBC is more a level of Canadian Government than a hospital. From this, it’s not a far-fetched extrapolation to assume, until they announce it specifically, that from the point of view of the US one can’t simply opt-out of INA 301 either.
4. Protecting the rights of children born to US citizens living in another country is an act of war? These days the other country probably couldn’t care less if it’s citizens have other nationalities. I just had a quick look at the War of 1812. It seems the Americans took exception to Britain blocking US trade with Europe because of the conflict between Britain and France and others. I don’t see any talk of citizenship issues until after the war was underway. Britain was grabbing its citizens (and their children born in the US) who had deserted the British Royal navy during the conflicts.
You wrote “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.” I wrote that Section 301 (a) Born in the USA and (c) Born Abroad as being equal in all ways. If you are an (a) Born in the USA and you apply for any government program or a passport, it, as you say, also “requires clear proof of objective facts. No proof. No benefit. It’s as simple as that.” It’s the “right” that is automatic and can’t be denied, but as in everything else, you have to show the documents to prove you qualify. I need documents to register my vehicle or renew a drivers license at the Registry 3 blocks from my house. I needed to prove my Canadian citizenship with a Certificate of Birth Abroad in order to get a Canadian passport. If I had been born in Canada, I would have had to show my birth certificate. No big deal, the US is doing exactly the same thing. Surely every country does. It doesn’t equate that you aren’t a Canadian citizen until you prove it by applying for a passport. One always has to prove entitlement. I have to prove it when I go to vote at the school at the end of my block. No proof, no vote. Simple as that.
You asked: “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?” Whoa! DAMMED good question!!! If one doesn’t have the documents to prove their right to USC since birth (INA 301), then how could the US/IRS insist that the person is a USC! Brilliant! I’m not being sarcastic, I really think you’re on to something.
You wrote “But, after all this we are no further ahead.” I think we are miles ahead if my interpretation of INA 322 is correct. This applies to many Brockers and/or their children, and I for one had never before seen this interpretation here or elsewhere. INA 322 gives a class of people who thought they were “accidental Americans” the right to naturalize, which seems safe to interpret as being optional, which could be to say that they are not “accidental Americans” after all. This is huge for those people, if true. Unfortunately, can we choose to read INA 322 literally because it is to our cause and benefit, but turn around and choose to interpret INA 301 not literally because it doesn’t?
Again, if INA 322 is as I’m suggesting, we’ve reduced the big question down to only those who were born abroad to 2 USC parents.
Back to taxes and a might higher degree of speculation. One of the present-day excuses/justifications for CBT is that USCs benefit from their glorious citizenship no matter where they live in the world. Never mind that it came into effect during the Civil War to stop people from leaving the US (with their money) because of the war. Regardless of whether an INA 301 person has USC without doing the paperwork, without the paperwork (which would yield a passport) one cannot claim any benefit from their USC. So there goes the reason for forcing US tax obligations on them. Even the Obama administration recognized that and one of his failed Greenbook budgets included relief explicitly for such Accidental Americans (they used the term) to relinquish their “unused” USC easily and without tax obligation.
@USCA, “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.”
This is a great thread and I have little to offer.
I think one has to consider when the effective date or state dart of said US Citizenship would actually be.
In many countries we have citizenship by naturalisation and citizenship by registration. A certificate of citizenship by naturalisation may say that the citizenship is effective on this day and then moving forward. Whereas citizenship by registration is simply documenting an already existing fact and that citizenship is retro to date of birth.
Lets go back to the USA as an example of two persons born overseas to at least one US person who did spend the requisite days of residence in the USA. Except one is age 18 and the other is age 58.
Each has just come into possession of the document that proves their parent lived in the USA the required days. What are the pitfalls of each person documenting their US Citizenship and most important when is their Citizenship starting point?
The 18 year old has little downside because they likely had no responsabilities to the USA.
BUT the 58 year old…what happens when she finalizes her US Citizenship and becomes documented?
I would have to say she now has an immediate back tax problem. I would dare say that a 58 year old who owned a home in Toronto for thirty years and sold it at age 57 has a major problem documenting their US Citizenship at age 58.
But if the person did not document their citizenship the US would likely be unable to lay claim unless the US documented the persons citizenship for them.
@George,
Good stuff. My take:
My new-found thinking is that your “citizenship by naturalisation and citizenship by registration” corresponds directly to INA 322 and INA 301.
If the 18 and 58-year-olds both had only one US parent, they’d fall under INA 322. Unless the cut-off of age 18 for INA 322 is new and didn’t exist back in the day, neither would still have entitlement to naturalization based on their parent’s USC. They’d have to get in line and do the whole immigrant thing, whatever that might entail and however long it might take.
If they both had 2 US parents, there is no time limit. One could say there is no time limit because nobody can take away a person’s US citizenship and these people are US citizens according to INA 301. They just haven’t asked for any benefits yet. I agree with this part of your assessment: the 18-yr-old likely has little income or previous tax filing obligation or history and safely claim USC and then safely renounce. 😉
If my relinquishment claim from over 40 years ago had failed a couple of years ago, I would have been that 58-yr-old. I would have been loath to turn to renunciation because that would basically be an admission that I was a USC my whole life, and I was therefore a draft dodger, and a tax dodger, and who knows what else.
However, as far as I know and have read here, there is complete agreement that such people born outside of the US (assuming they still don’t want USC) have no way of being flushed out by FATCA or any other means and can safely go about their lives as non-USC. If the 58-yr-old DOES want to claim his new-found USC right, then yeah, scary business!
@Whatami
U.S. citizenship can be acquired by birth or by naturalization. Sections 320 and 320 are under the heading of citizenship by naturalization and not citizenship at birth (as is S. 301). We are talking (in our discussion) about acquiring citizenship at birth and not citizenship by naturalization. The language in S. 320 “automatically becomes” should therefore be read in the context of naturalization which by definition happens after birth. Although, S. 320 and S. 322 are contextually interesting, neither defines the circumstances of “citizenship by birth” – they both describe grounds for naturalization (which we are not talking about).
You are absolutely right. This is not in the statue. This principle will however be found in a series of U.S. Supreme Court decisions analyzing and describing how the 14th amendment bears on citizenship issues. The Supreme grappled with citizenship issues for a fifty year period which really ended in Justice Black’s 1967 decision in the Afroyim decision. In the area of citizenship (and obviously other areas) Court decisions do impact the way that statutes are interpreted – meaning that statutes sometimes don’t mean exactly what they literally say.
The discussion we are having is a narrow but important one. It centers on the correct interpretation of whether S. 301 automatically confers (without choice) U.S. citizenship on people described in the section. As you point out, what people are most concerned about is the IRS/US Gov interpretation of this issue. I certainly agree that it doesn’t matter what I think or what you think. We do know that a person born outside the USA is presumptively an alien. In order to establish citizenship the presumption must be overcome. The burden of overcoming the presumption is on the applicant. So, to register a birth abroad is really to overcome a presumption of alienage.
Now, where are our points of agreement and disagreement?
Point of agreement: All agree that the the text of S. 301 includes the language “shall”. Therefore, it is reasonable to infer that the literal meaning of the statute is that citizenship is automatically acquired. That is the starting point in the analysis. Context (example overall purpose of the statute) must be considered. Outside factors (example court decisions) must also be considered.
Point of disagreement: The fact that the statutes uses the word “shall” means that it should be interpreted in accordance with the literal meaning.
Point of agreement: The most relevant and interesting interpreter of the statute would be the U.S. Government (State Department, IRS or whatever). We have no definite information about the U.S. Government interpretation of the statute (there are have been threads on Brock trying to determine this issue). However, it is NOT our job to just determine what the U.S. Government thinks and comply for that reason. It is our job to understand what the U.S. Government thinks, analyze the it, understand it and determine whether that interpretation serves the interests of Americans abroad. In other words, the U.S. Government can think it, but that doesn’t necessarily make it so. Any person born abroad, who has not taken steps to register/document citizenship is perfectly free to defend an accusation of U.S. citizenship.
How should S. 301 be interpreted?
I believe that you can interpret the meaning of the statute the way you are interpreting (literal meaning) or the way I am interpreting it (context). Why are you so anxious to go with the “literal” interpretation when it does such damage to people born outside the United States?
I am not willing to accept an interpretation of the statue that would effectively agree that the U.S. Government can impose citizenship on people born outside the United States based on criteria that they alone decide and based on criteria that they and they alone can change.
To be clear, we are not arguing about what the statute says. We are arguing about what the statute means. They can be different things.
FWIW, a number of years back (might be 2013), I heard John Richardson say during one of the seminars he was giving at the time that he had never heard of anyone born outside of the US having US citizenship involuntarily foisted on them.
@USCitizenAbroad,
I think we’re converging.
I see part of the confusion. As you said, _you_ are talking about “acquiring citizenship at birth and not citizenship by naturalization.” I’m talking about Brokers who, like I, didn’t realize there is a big difference between having one or two US parents if born outside of the USA. Surely I’m not the only one who thought that even having one US parent made them an “Accidental American” and potentially on the hook for FATCA/IRS and taxation. I only realized yesterday that people who have only one US parent, by literal reading of INA 322, can’t possibly be considered US citizens. At best they just have a short cut to naturalization. If there are such Brokers with one parent who have been worried about being US persons, then I insist that INA 322 is absolutely relevant to the discussion I started by (sorry) hijacking this thread with the age-old question. Which, BTW, I see I inadvertently but tellingly asked in the singular parent context.
Yes, absolutely court decisions effect and override written laws. It often takes a long time for the laws to be updated. For example, one familiar to many here is voting in foreign elections. I think it was struck down in the early 60’s by the Supreme Court but not removed from the books until Oct 1978. Agreed: court decisions and “the law as it was when you were born” as I’ve mentioned have to be considered.
You wrote “We have no definite information about the U.S. Government interpretation of the statute (there are have been threads on Brock trying to determine this issue).” Yes, that’s exactly the age-old question I asked yet again to start this discussion in this thread.
You wrote: “However, it is NOT our job to just determine what the U.S. Government thinks and comply for that reason.” Oh no, I don’t think anybody here is searching for the answer from the US Govt in order to _COMPLY_ with citizenship. Certainly not I. I think everyone is asking what the Govt’s interpretation is so they can make a personal decision on what they should do about it. Lay low, move money to deemed-compliant FATCA-free credit unions, choosing heirs and executors, whatever.
You wrote: “Why are you so anxious to go with the “literal” interpretation when it does such damage to people born outside the United States?” It’s for the reason in the above paragraph. I’m trying to make a good guess as to what the Govt’s interpretation might be, not make and suggest one for myself or anybody else. It’s to guess where the Govt might stand and what the Govt might do about it so we can hopefully make a better-informed decision about what if anything to do. Or at least one covering the worst-case scenario. In the process, I think we determined that people with 1 US parent (a large number of Brokers?) are indeed off the hook and I don’t think we knew that before. Apologies if I was the only one.
“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.”
I think that is not quite true. The 14th Amendment says (14a) birth in the US and subject to the laws thereof or (14b) naturalization. If the INA isn’t unconstitutional, then (A) includes some but not all births and (B) includes both naturalizations after birth and some naturalizations AT BIRTH. One of the constitution’s main articles uses the phrase natural born citizen but doesn’t define it, so it has been interprreted as including both (1) birth in the US and subject to the laws thereof and (2) naturalization at birth. Of course this also depends on how the US is defined, which isn’t clear in the constitution but has definitions varying from statute to statute.
“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…”
Bush Jr. did it too. Ford did it too (read Roger Conklin’s postings).
@Whatami
Yes, but remember also also that the text of these statutes has evolved over the years. The relevant statute is not what it says today, but what is said at the birth of the individual.
Also the case you are referring to from the 60s about voting was the Afroyim case which I mentioned in the above comment.
“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.”
It doesn’t matter. The US went to war with Britain (1776) over issues such as taxation without representation, renditioning across seas to answer for imagined offences, and torture, but that doesn’t stop the US from doing the same.
@USCitizenAbroad,
Agreed!
Though not a Govt document, this looks fairly ambitious and doesn’t mention any relevant changes to the 1952 statue regarding 2 US parents. It mentions the 1 US parent case several times in the area of required presence in the US of the parent, but nothing major.
http://www.americanlaw.com/citabrd.html
@Norman Diamond
You write:
When did either Bush Jr. or Ford have a policy in their administrations targeting Americans abroad with an FBAR fundraiser?
When did either Bush Jr. or Ford create OVDP/OVDI which was for the sole purpose of confiscating the assets of Americans abroad?
When did either Bush Jr. or Ford sign into law a statute to confiscate the passports of Americans tax delinquent Americans which overwhelming affected Americans abroad?
When did either Bush Jr. or Ford have sign into law something like FATCA and then proceed to hunt Americans abroad with IGAs?
I will stop there. But, I am really curious how you could make such an outrageous statement.
Sorry, but when it comes to the persecution of Americans abroad, Barack Obama and the Democrats stand alone.
@Whatami
Yes, that document shows the fact of lots of change in the citizenship statutes. Did you see the part that denied U.S. citizenship to those (1) born abroad (2) after 7:00 EST (3) on any Tuesday in a leap year (4) if the mother was under the age of 24?
(Only kidding.)
“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…”
That paragraph says nothing about FBAR, though by the way when going off on that tangent, remind me of when FBAR was initiated?
‘Bush Jr. did it too. Ford did it too (read Roger Conklin’s postings).’
Again read Roger Conklin’s postings, though now I’m not sure if it was Ford or Carter who was responsible for making US citizenship toxic to the US’s diaspora at that time.
At the end of 2011 the IRS’s Taxpayer Advocate reported to Congress that US income tax administration had forced thousands of honest taxpayers to renounce US ciizenship. Though 2011 came during Obama’s administration, the events which forced those renunciations had occured during Bush Jr.’s administration, for example IRB 2005-14 which penalizes honest declarations on tax returns.
One final thought on this one.
My daughter was born in a faraway European land. I foolishly registered her birth at the US consulate and obtained a “baby passport” valid for one year, so she’s on record somewhere as being a US citizen.
Without a US birthplace, I fully expect she’ll be able to ignore her second citizenship, if she so desires, and suffer no ill effects from FATCA or US tax laws.
However, if problems did arise, I wonder if she could argue that she’s not a US citizen because she did not consent to acquiring US citizenship herself, as it was done for her while she was a minor? Provided of course she had done nothing after turning 18 to indicate interest in or awareness of US citizenship, such as applying for a US passport or SSN. That would be consistent with the idea that citizenship is not automatically granted, but rather must be sought out.
PS to post above:
The daughter has only one US-citizen parent. I did, obviously, meet the criteria for transmitting citizenship, having lived enough years in the US over the age of 14 or whatever it is.
I haven’t read all the comments above, but given issues that have arisen (most notably, for some reason, in Israel) with respect to IVF and donor eggs and sperm, especially with older mothers, and consular officers sometimes demanding DNA proof of biological relationship, that may be the answer. I’ve suggested a couple of times in the case of non-visa nationals traveling on ESTA that they be prepared to whisper the magic words IVF to a CBP officer if challenged. My Amcit daughter, who has never lived in the USA, has visited the USA three times with her now-4-y.o. son using his European passport. Two weeks ago the reaction of the CBP officer at LAX was quite different from the consular officer’s: it was snarky and, in effect, to put her to the proof that her son would be leaving the USA within the allowed time. Her response was that he was due back in nursery school this week.
Consular officers are bound by the FAM. Perhaps some need to be reminded of
9 FAM 202.1-2 https://fam.state.gov/fam/09FAM/09FAM020201.html and
7 FAM 085 https://fam.state.gov/fam/07fam/07fam0080.html
and the fact that there is a legal presumption of alienage int he case of birth abroad.
Obviously one should not offer facts to a consular officer that would imply attribution of US citizenship at birth. Also, there are many reasons why a consular officer can refuse a visa quite apart from the citizenship issue.
This Foreign Service Journal article has been cited several times on this forum. It addresses well the matter of doubt, especially in the case of single mothers who need to have been present in the USA for 365 uninterrupted days at some time in their life to transmit citizenship: http://www.afsa.org/citizenship-and-unwed-border-moms-misfortune-geography
The criteria “unable or unwilling” is interesting. That turn of phrase appears also in refugee law in the context of entitlement to refugee status. 7 FAM 083 adds “as determined by the post’s citizenship and passport officer” which may explain the source of the problem in the original posting.