It’s about “ConFORMity”
Attention those seeking a back-dated CLN based on a relinquishment … Say "Good Bye" to the Old DS-4079. It's been replaced with a new version. pic.twitter.com/z7md6rESbH
— U.S. Citizen Abroad (@USCitizenAbroad) June 28, 2020
As you know, all interactions with the United States Of America are exercises in “ConFORMity”. Americans do love their forms. Hence, when the United States issues a new “form”, it’s important to pay close attention.
To the US Government, the issuance of a new Form is similar to a family experiencing the arrival of a new baby.
Forms, Culture And The Culture Of Forms
A form revision is an important moment in the United States. It’s often an opportunity to create new penalties or to increase old penalties.
Future “Form 4079ers” need to take careful note. What does this mean for future relinquishments?
Past And Future “Form 4079ers”
The DS-4079 has been an important part in the life journeys of those individuals, who were “Born In The USA”, but wanted a CLN (“Certificate Of Loss Of Nationality”), based on a back-dated relinquishment. Some past “Form 4079ers” have been successful and some not. Past “Form 4079ers” have learned that their freedom often depended on the presence or absence of one and only one word. Only “Form 4079ers” understand “The 50 Shades Of Intention”. Is expectation the same as intention? Does an understanding of the consequences equate to an intention? When is uttering the words “I renounce”, as part of a foreign naturalization, the same as the intention to relinquish US citizenship? When not? These are some of the most important questions of our age.
The Previous Form DS-4079
The Brand New Form DS-4079
The Brock Project
Are the old and new Form DS-4079s different in any significant way? If so, how?
The first change is minor: question 5 of the 2013 form has been separated into two questions (5 and 6) of the 2020 form, so that all the questions after that are off by one number (comparing the two forms).
Question 13(e) of the 2020 form asks, “Do you file U.S. income or other tax returns? If yes, explain.” This is not present in the 2013 form (question 12). If one answers yes, this could conceivably be interpreted as a disqualifying US tie. If one answers no, this might be taken as evidence of tax crimes! Catch-22?
There isn’t any significant difference. The whole purpose is confusing. This form was originally meant for those who had possibly relinquished their citizenship by performing some verboten act or other and wished to keep it Now it is also used for the precise opposite purpose. Go figure.
@ Zl’aod,
The US tax question isn’t new, as it was also on the 2013 form, at Q. 13(e). Question 12 is/was about one’s home country, but doens’t/didn’t have the tax question.
Re the tax question. Filing US tax hasn’t been a problem if the person filed tax because they had some US investment income that required filing (as it would of any non-USC). I also know of several cases where people, who thought they’d relinquished long ago, filed because they got confused due to misinformation in the media, and DoS did not hold that against them (the rest of their files were “impeccable”). Passports have been a major barrier to asserting one has relinquished, but tax hasn’t been much of a problem. I presume because filing tax is – at best – a pain, they have no trouble believing you only did it because you were confused.
Differences to previous form:
Apart from cosmetic changes, the only differences I have noticed are:
– They do not ask anymore “How did you find out that you are are citizen of the United States”, just the date
when you got to know it, if known.
– There is a lot more space to write the words of your oath of allegiance to a foreign state.
– Importantly, question 19 has changed from “Did you know that by performing the act described in Questions 8-18 you might lose U.S. citizenship” to “What was your intent with respect to your U.S. nationality when you performed the act or acts indicated in questions 8(b)(iii)- 11 and/or 16?, Explain your answer”
Pacifica777:
Could you elaborate on “Passports have been a major barrier to asserting one has relinquished, but tax hasn’t been much of a problem.”?
I currently have a valid US passport. However, I have not used it since naturalizing as a citizen of another country and I write that in the form. Would that be an issue?
Squirrel
Are you seeking to have the US recognise a relinquishment from taking on the other citizenship? Or are you happy to renounce?
There’s no financial gain to relinquishing rather than renouncing, as the fee is the same either way.
It’s your right to renounce US citizenship. It’s rather harder to prove a relinquishing act.
The problem has been where someone used or renewed their US passport after the date of naturalising. No problem to possess one as long as you haven’t used it since naturalising.
Following along from BirdPerson’s, I feel that a relinquishment’s pretty much as straightforward *as long as* the DS-4079 is consistent with a person’s having believed they lost their citizenship on the date claimed. As well, you’ll know on the spot if the consulate is okay with it (if they are, it’s basically rubber-stamped in DC). Or if the consulate doesn’t like it — and you don’t plan to contest — you can renounce on the spot. So, I wouldn’t let that deter me from going the relinquishment route if I preferred that (which I did). But, yes, renunciation is as straightforward as it gets.
BirdPerson, pacifica777: thank you for the replies, very helpful! I will try the relinquishment route first. I’m still waiting for the embassy to resume regular activities. I’ve noticed that citizen services have restarted this week in Germany so hopefully it won’t take long until the same happens in the UK.
Relinquishment vs. Renunciation: same outcome, same cost, more complicated paperwork.
Only real advantage to documenting past relinquishment is for tax compliance reasons, if it’s prior to 2004 or pre-dates a significant taxable event. Otherwise likely not worth the extra hassle.
Another advantage is that relinquishment sounds slightly better if you find yourself having to answer annoying questions from a US border goon because relinquishment is loss of citizenship as opposed to “in your face” rejection of US citizenship. (Assuming they understand the distinction.)
In 2023 when it’s safe to cross…
I tried to argue for a relinquishment backdated to 1993, when I took on British citizenship. I lost because I let myself be bullied by a border official into obtaining a new US passport when I tried to enter the USA on my British passport. The Embassy official was willing to send my paperwork to the USA for a relinquishment, but he didn’t support it and, if I’d failed, then I would have had to pay the fee a second time to renounce. So I decided just to renounce, since I’d already decided not to file any US tax paperwork.
Hello!
Accidental American here, I decided I no longer wish to be a US citizen and I am very confused about the difference between relinquishing vs renouncing. Please can someone explain it in layman’s terms? My understanding is that with relinquishing you can back date the date where you were no longer a us citizen using the DS-4039 form but still need to go through a formal renunciation? They don’t make it easy…
Thanks for your help!
Hello Em,
Renouncing is actually one way of relinquishing. There are 7 ways of relinquishing your citizenship (Immigration and Nationality Act, s. 349(a)).
Renunciation (s. 349(a)(5)) is taking an oath of renunciation, witnessed by a consulate officer. It’s the most straightforward way because (1) there is no doubt it happened as the consulate officer is a participant; and (2) the relinquishing act occurs the same date the person signs the CLN application forms.
It is performed by taking the oath of renunciation (form 4080). Form 4081 (Statement of understanding of consequences) is also required. Form 4079 (Request for determination of loss of citizenship) is not strictly required, but the DOS procedure manual does state that “it may prove useful” regarding intent and some consulates do require it.
Other common ways of relinquishing are naturalising in a foreign country (s. 349(a)(1)), accepting employment with foreign government (s. 349(a)(4)), or joining a foreign military (s. 349(a)(3)). These are relinquishing acts *if* the action is taken with the intention of relinquishing one’s US citizenship.
In the case of a relinquishment not done by renunciation, although the loss of citizenship occurs at the moment the relinquishing act is performed – and that could be decades ago — the relinquishment is not effective for practical purposes in the eyes of the US government until the US government is notified by signing forms at a US consulate. But once that’s done (as long as they approve the application, which you can pretty much tell at your consulate meeting) the US govt does recognise the citizenship loss as having occurred at the time of the relinquishing act and the CLN will indicate that date as the date of termination of citizenship. Required forms are 4079 (Request for determination of loss of citizenship) and 4081 (Statement of understanding of consequences).
@Em
See my earlier comment on this thread. There’s really no advantage to documenting relinquishment unless you have some sort of tax reason to backdate your loss of US citizenship. If you aren’t filing, it makes no difference – just renounce and walk away.
@Em
The Isaac Brock Society has been a safe refuge since 2011 for people with circumstances that may or may not be similar to yours. One of the lessons from the past nine years is that it’s impossible to give reasonable advice without knowing more of the facts (as far as I can tell you really haven’t provided any).
Generalities don’t matter. Facts do.
Em As Heidi said, renouncing is one way of relinquishing US citizenship. It is the easiest one to document. The State department has decided that you cant give up citizenship unless you upintend to. So for example if you obtained a second citizenship years ago, you only lose citizenship if you can demonstrate that you intended to. They make that somewhat hard to prove.
Renouncing is easier and more defined. They cost the same. They both give you a certificate of loss of citizenship.
All consulates are now closed indefinitely. ( I was just given a Nexus appointment for April 2021!)
The important consideration is that in most cases you don’t need or want to file any tax forms- none.
Hello, does anyone know whether working for a provincial government in Canada counts as taking an oath to a foreign government? Or does it have to be a federal office? I worked for the province of NB for 30 years and I know we did sign an oath of office, but I just can’t remember the wording. Just wondering if anyone else had a similar experience.
@ Hannah,
Provincial employment counts as a relinquishing act, as Dept of State considers the province to be a “political subdivision.”
Immigration and Nationality Act, s. 349(a)(4)(A):
Several people have reported their experiences of relinquishing due to government employment in the Consulate Report Directory.
As for the oath you took for your employment, if you were a Canadian citizen at the time you took the oath, that wouldn’t cause a relinquishment because it wouldn’t meet prong (4) of the test in the Dept of State Manual, 7 FAM 1252(h). However, the oath is not necessary under INA, s. 349(a)(4)(A).
I’d put a copy in my relinquishment file anyway, if it’s available. But if not, it’s not a problem. I don’t think the fed govt has used the oath for employment for quite a few years now, so some people don’t have one anyway, and the job itself is sufficient for s. 349(a)(4)(A).
@Hannah
Just so you’re aware, there isn’t much real-world advantage to documenting past relinquishment, as oppose to merely renouncing. The fee is still US$2350 and renouncing is administratively simpler.
A relinquishment dating back 30 years would excuse you from any obligation to exit the US tax system by filing form 8854 and declaring 5 years’ compliance etc. but frankly that’s not a huge benefit because you can simply renounce without filing anything anyway.
It is supposed to count but don count on it.
It fulfills the stated requirement but….. Some consuls argue “when you took the oath you didn’t intend to give up your citizenship”
However the test of your intent is supposed to be governed by your subsequent actions. Did you renew a US passport?, did you vote in the US?, did you tell your friends you were still American? Do you have US property and so on. You pay your money and take your chances. As Ron H says easiest way forward is to renounce and DONT file any tax information.
Re:
The consul shouldn’t be doing that if the person’s 4079 (and statement, if they opt for one) clearly shows lack of US-citizen-type-behaviour after the date of the relinquishing act.
And if the consul does object, one can tell the consul to forward the file to Washington anyway. Washington is more on the ball about requirements than some consulates are, and in the case of a “clean” 4079, the applications were approved.
As relinquishment is pretty common in Canada, the consulates here got pretty familiar with handling such cases – as well DoS Legal Affairs was helpful in offering to contact the consulate directly when we contacted them about some problems re this – and it hasn’t been a problem in recent years (if the 4079 is “clean.”)
If you have even one element of US-citizen-type-behaviour, such as getting or renewing a passport, etc., that’s very very dicey (although some stuff on the 4079 like having family or friends in the US doesn’t matter). But if one’s post-relinquishing-act behaviour is clear-cut – and if one strongly wants a relinquishment-based CLN (I strongly wanted the 1978 date on my CLN so it would reflect the reality of my life) — I’d go for relinquishment (presuming there’s nothing “odd” in one’s fact set, which might be a problem).
But a renunciation is as straightforward as it gets and, as Ron and Portland point out, there may be no practical difference whether you choose relinquishment or renunciation.
Re not filing tax, many renunciants don’t and none have reported any problems. For more info on this, see “Interactions between Dept of State and the Internal Revenue Service.”