I was very happy to report on a born-dual friend’s successful consulate meeting this week, in which he applied for a CLN based on his relinquishment at the time of taking government employment.
However, Brockers have reported some consulate personnel erroneously telling them that a person born dual or who acquired their non-US citizenship as a minor is unable to expatriate except by renouncing. In fact, there is no automatic disqualification of such persons from having the capacity to perform certain other relinquishing acts.
Such consulate personnel are probably conflating s. 349(a)(1) of the Immigration and Nationality Act with all other non-renunciation methods of relinquishing one’s citizenship. Section 349(a) (1) is naturalising in a foreign country after having obtained the age of 18 with the intent to relinquish. Obviously a person cannot naturalise in a country they’re already a citizen of.
It appears that s. 349(a) (2), taking an oath, may also not apply to persons who already possess citizenship in the country they’re taking the oath to, as DoS has a 4-prong test for determining if an oath of allegiance is “meaningful” for this purpose. Prong 4 is “the making and receipt of the oath or affirmation alters the affiant’s legal status with respect to the foreign state” (7 FAM 1252(h))”.
But that still leaves not one, but three, possible ways for a person who acquired non-US citizenship at birth or as a minor can terminate their US citizenship:
— Commissioned or non-commissioned military officer in the armed forces of a foreign state, s.349(a)(3);
— Government employment in a foreign state or a political subdivision thereof, 349(a)(4) [eg. federal, provincial, municipal];
— Renunciation, s. 349(a)(5).
Subs (6) and (7) deal with war and treason, so presumably not relevant to this particular discussion.
CLNs based on government employment have been issued to persons who acquired their foreign citizenship at birth or as a minor. I’m aware of several of these and I know of none that have been rejected because the person was born dual or acquired their foreign citizenship as a minor — nor can I find anything in the law or DoS procedure manuals to indicate that this could be a ground for rejection. I was also in contact with a citizenship specialist at DoS/Consular Affairs/Legal Affairs in Washington regarding persons-born-dual, who told me that it was her understanding that this was not a bar to relinquishing under subs (3) and (4).
Reports on the consulates are mixed, though. At Calgary in 2012, Prairie Girl had to insist that her s. 4 based application be sent to Washington, where it was approved over a Calgary consul’s negative recommendation in her CLN file. Authentic had no problem at Halifax in 2013. In recent months, people have run into problems with this misconception at Toronto, though another person had a smooth meeting at Ottawa, where the personnel were both aware of s. 4 and that it can apply to a person born dual.
It starts to feel like luck of the draw, so bone up on it before you go. Bring 349(a) and the relevant sections of the DoS manual/s with you. They have this information, of course, but you can have relevant passages pre-marked for convenience, if needed. Educating oneself is always important for any type of expatriation, and knowledge of the specifics of the law and procedure can be critical in any case where the consulate official handling your case is not familiar with CLN applications based on the sub-section you relinquished under.
Basically, be prepared, and politely but firmly stand your ground if a consulate official tells you that you are precluded from having relinquished under s. 3 or 4 because you were born dual or acquired your second citizenship as a minor.
Useful Links:
8 USC 1481, Text of Immigration and Nationality Act, s. 349(a)
USCIS charts: if born to US parent/s outside the US, ascertain if you are or are not a US citizen.
Chart 1: Children born outside US in wedlock
Chart 2: Children born outside US outside of wedlock
Department of State Manuals:
7 FAM 1210 Introduction
7 FAM 1220 Developing a Loss of Nationality Case
7 FAM 1270 Military Service and Loss of Nationality
7 FAM 1280 Loss of Nationality and Taking Up a Position in a Foreign Government
Experiences of Brockers:
Reports by persons who relinquished upon taking government employment. The reports are in reverse chronological order based on date of consulate meeting.
You can also access these reports, along with all other relinquishment/renunciation reports reported to Brock, throughout the Consulate Report Directory. The Directory is arranged in chapters by consulate, and reports appear chronologically within each chapter.
Related Brock page: Born Outside the US and/or Born Dual.
Cross-posted at Maple Sandbox.
I had a thought the other day. Is it possible to get some sort of injunction against the IGA until the challenge against the Charter goes to court? In other words, suspend the IGA until it goes to court.
@Pacifica777
Your detailed and tireless advocacy regarding this kind of unique information is inspiring.
Renunciation and relinquishment of US citizenship is such an obscure field – any most people do not know about their “relinquishment” options.
Have you ever considered gathering all the best and most relevant posts on this subject into a simple “e-book”? There are all sorts of free services for transforming a properly formatted word doc in an ebook format – and there are all sorts of services that will distribute these for a minor % of purchase. Many companies and professional services firms distribute free ebooks as a promotional item – for example here info on that from a marketing firm (this is not an endorsement – only info!): http://www.customlegalmarketing.com/engage/ebooks/
Or maybe a “Best of Issac Brock Society” ebook divided up by different content chapters?
There is lot of unique content and I believe that in the future IBS will be a case study in univrsity politics classes.
@pacifica777
Thanks for this. Once can I grasp all the fine details of US law, I hope to have the confidence to attend the Halifax consulate and relinquish retroactively to 1982. Until I am satisfied “beyond a reasonable doubt” that I can relinquish successfully, it seems easier to try to stay beneath the IRS radar by not bringing myself to the attention of the US. Posts like this are very helpful in helping to build a case for successful relinquishment. Thanks again.
Here’s an interesting scenario to consider the exit tax and relinquishment/renunciation complexities of. I moved to Canada as a child with my Canadian born mother, and naturalized as a Canadian citizen prior to 2004. In 2009, Canada’s Citizenship Act changed to make me a Canadian at birth because my mother was Canadian born.
For those who are in the same position but naturalized between 2004 and 2009 and are subject to an exit tax, which would you choose? Canadian at birth to avoid the exit tax, or naturalization in order to relinquish and save $450? The answer’s pretty obvious to me. But what if the same person wasn’t subjected to the exit tax, would the DOS allow the naturalization to stand if they don’t know about the dual at birth status? Or would anyone in the same position choose the dual at birth status if they fear the US might make retroactive changes to reduce the exit tax threshold?
i wonder if working for a state-owned company counts as “government employment”. I have seen news stories that show under FCPA (foreign anti corrupt practices act), the US considers a state-owned company the same as the government….so just an idea..
Good post. A few general thoughts.
1. Remember that the State Department is NOT the law but the interpreter of the law. Therefore, their interpretation is not binding anyway.
2. S. 349 (a) applies to “nationals” of the United States. The fact of being also a national of another state is completely irrelevant. It’s just that one can’t become a national of state you are already a national of. But, a dual citizen could lose U.S. citizenship by becoming a national of a third state.
3. With respect to the issue of the “oath”. You make the point that:
Note also that the FAM says that:
The Department of State determines on a “case by case basis” whether an oath is meaningful. Imagine this scenario:
A person born both a U.S. and Canadian citizen, who while living in Canada takes an oath to Canada that says:
I voluntarily take an oath to Canada that INCLUDES:
“I will:
A. Obey all laws of Canada; and
B. Will not obey any law of the United States while I am on Canadian soil – including, but without limitation:
– any provision of FATCA
– FBAR
– any United States information return
– paying the United States any tax from the sale of a principal residence in Canada
– etc.”
Although this oath would not affect one’s status as a Canadian, I think it would probably be considered to be, from a U.S. perspective, the kind of oath that would be an expatriating act. It is after all swearing to place the interests of Canada above those of the U.S. and is swearing to NOT obey U.S. law in the context of an what is considered to be an expatriating act.
A Fast Track To Expatriation
Perhaps this is the “fast track” to expatriation. Perhaps the Government of Canada could create official “U.S. Citizen Expatriation Centres” where the whole process would be documented. The person could sign that this particular oath is being made voluntarily and with the intent to relinquish United States citizenship. This could be done without appointment during normal “oathing hours”. Canada could undercut the United States fee of $450 by charging $350.
The $350 fee could include the complete service including optional delivery of the message to the U.S. Once done, this would also suffice as proof of loss of nationality for FATCA purposes. This makes perfect sense because the purpose of the IGA is (in part) so that the banks don’t have to deal directly with the U.S. The establishment of “U.S. Expatriation Centres” in Canada is consistent with the spirit of the IGA because, U.S. persons could deal only with Canada to “De-U.S. Personize” themselves.
What do you think?
I can see no impediment in s. 349 (not the State Department manual – the statute) to relinquishing by simply swearing an oath of allegiance to the Queen and doing so with the express(ed) intention thereby of relinquishing any claim to US citizenship. That hits all the requirements of the statute. For Canadian Cop or others flying under the radar, consider whether it might make sense to hold on to whatever arguments you have as to having relinquished in the past BUT simply write out a simple oath of allegiance to the Queen sign and date it. For example:
“I hereby swear allegiance to Her Majesty the Queen of Canada and her heirs according to law. In so swearing, I consciously and intentionally relinquish any claim that I may continue to have to citizenship of the United States the whole entirely without prejudice to any claim that I have to having relinquished such United States citizenship in the past. I make this oath solemnly and with the intention that it be binding and irrevocable”.
Sign and date it – before a witness or a notary if you like – and put it in your drawer until you decide what to do about seeking a CLN or not. If so, you will be able to add this declaration to your arsenal as a fall-back should you need it. Just a thought.
@Don, That’s a good question. Perhaps Blaze or IRSCompliant have thoughts on this.
Not sure this is anything new, but I came across this paper doing some research 1998 Treasury paper recently – http://www.treasury.gov/press-center/press-releases/Documents/tax598.pdf. (sourced from this blog: http://tax-expatriation.com/)
Interesting stuff, I would say, in particular –
page 4, which concludes “Therefore an initiative aimed merely at increasing overseas filing compliance
may not necessarily raise sufficient revenue to justify the cost of such an initiative.” Reasonable to conclude that the quantum of potential FBAR penalties has changed that analysis.
pages 36 – 38 which talk about taxation and the question of backdated relinquishments
And page 44-45, which has a not subtle harbinger for FATCA.
@pacifica777….Thanks so much for this. I am a dual, born in U.S. to Canadian parents, moved to Canada when I was five, registered as a Canadian born abroad when I was six. I’m planning on doing a back-dated relinquishment as I worked as a public face for a crown corporation (CBC), starting in 1998. I’ve done a lot of reading and research and I think I have a fairly strong case but one never knows; I’m in the process of gathering all my materials now.
One thing I can’t find is a current 4079 Form online, only one that expired the end of 2013. Is that something I can only get from the consulate? I’ve reviewed the old form, and my only question is about question 17: “Describe in detail the circumstances under which you performed the act or acts indicated in Questions 8 – 16.” An earlier question already asks you to provide details of your duties and responsibilities with your government job, so I’m really not sure what question 17 is getting at. Any thoughts?
Again, thanks to everyone for your help on this.
@Anne Frank
I would think that for this to fly, you’d at least have to have it witnessed at least, because what would stop someone from back dating one of these statements to prior to 2004?
this is off-topic, but the Americans just slapped sanctions on Bank Rossiya. Not a chance in hell the Russians go on board with FATCA now. Long live PUTIN, the only man with balls to stand up for his country’s sovereignty!!
@USCitizenAbroad, @Anne Frank
I don’t think either of your ideas will help in any way. Neither alters your state in Canada, and neither notifies the DoS (and in turn the IRS) about any “relinquishment”. Remember, after 2004 your effective date for IRS purposes is the date you notify the DoS. The US’s attitude is that you are a US person until they tell you that you aren’t. An official in another country cannot take away your US citizenship. If all we care about if FATCA-proofing ourselves, then one might think that’s between the Canadian FFIs and the CRA, but the CRA has to comply with the definitions set by the US.
From 7 FAM 1250 (Pacifica777’s link http://www.state.gov/documents/organization/120544.pdf )
@Molly,
When you make an appointment for Calgary, they will email you a FORM DS-4079. The one I received from them 2 weeks ago is the same expired form that you found online.
@Don and @WhiteKat,
You raise the possibility of an early injunction to prevent harm that will be caused by the IGA legislation. We have already mentioned this to Mr. Arvay as one of the possible approaches. He will advise on this once he has done the legal opinion. An injunction makes a lot of sense to me but lawyers tell me that these are difficult to obtain. .
@pacifica777
There are a couple of bad links in your original post.
The links to both “s. 349(a)(1) of the Immigration and Nationality Act” and ”(7 FAM 1252(h))” point to the same place, the 7 FAM PDF. Perhaps the “349(a)” link should point to the INA itself:
http://www.gpo.gov/fdsys/pkg/USCODE-2011-title8/pdf/USCODE-2011-title8-chap12-subchapIII-partIII.pdf
This same titled link is the first in the list of “Useful Links”, but the link there doesn’t work at all.
@ Molly,
The 4079 seems to be oddly written in several places. I took Question 17 to mean “the circumstances” in a general sense. As you point out, an earlier question already asks you to provide details. So I just wrote pretty generally:
“Knowing I would spend the rest of my life here, I wanted to be completely a part of my home country, Canada, with undivided commitment and participation. I therefore became a Cdn citizen with the intention of relinquishing US citizenship. I believe that I transferred my citizenship from the US to Cda at that time. My acts and actions listed above flow from this.”
Basically I meant the last sentence as a reference to what I had said in Questions 8-16.
@ WhatAmI,
Thank you much! I’ll fix those links.
@pacifica777,
Thanks for the excellent post. There are other issues that people described by this thread will come up against in their relinquishment appointments.
I’m wondering if you can update your post with the some of the following. As @Wondering implied, I’m afraid additions to your points made here in the comments will be missed by some readers using this thread for reference. Of course, you may want to research this yourself and maybe put it into your own words if you’re going to post it in your name. 🙂
You mention INA 349(a) 1 and 2. I agree with your interpretation, but want to add clarification and relate it directly to INA 349 (a) 4 A and B, since this section on foreign government employment seems to be the only possibility for a past claim by a born dual-citizen.
INA 349(a) 1 details naturalization to obtain the foreign citizenship.
INA 349(a) 2 details a US citizen making an oath of allegiance without obtaining the foreign citizenship. It is still a potentially expatriating act.
INA 349(a) 4(a) details foreign employment by a person who already has the foreign citizenship. Note that an oath is not required.
INA 349(a) 4(b) details foreign employment by a US person without the foreign citizenship. An oath is required for it to be a potentially expatriating act.
Some dual-citizens have had their claims approved by the DoS without an oath. However, more than one consul has insisted that an oath is required as part of their relinquishment claim for foreign government employment, but this is clearly not true. The words in the law are clear. Additional proof is in the quote that I made above from 7 FAM 1250:
It makes no sense to insist on an oath by a person who is already a citizen. That would imply that a naturalized citizen has a greater allegiance than a born citizen! Look at this quote from 7 FAM 086 http://www.state.gov/documents/organization/86563.pdf :
Another issue is that some consuls insist that foreign government employment only counts if it is a “policy-level” position. This is also not true:
http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/citizenship-and-dual-nationality/citizenship-and-seeking-public-office.html
Other issues:
We have reports from people who obtained CLNs by virtue of federal and provincial employment. Offhand, I know one was in provincial tourism, another worked in a hospital. I haven’t seen any reports of municipal-level employment being claimed (although I may attempt it myself).
My sister worked as a contractor for Canada Post. The consul told her being a contractor didn’t count and was recommending that the DoS deny her claim, but he did submit it to D.C. This was only a month ago, so we have to want and see.
@whatami – the point of signing a declaration is not to have much impact on the IRS. Their regs pretty clearly ignore expatriation for tax purposes until they are notified, at least for more recent expatriations. State however is governed by the INA, and citizenship for “tax purposes” is not the same as citizenship (and I continue to harbour strong doubts that there is even a shred of legality to extraterritorial citizenship for tax purposes alone, but obviously this has not been tested). The 1999 paper cited by @USCitizennightmare above pretty clearly supports that analysis as the IRS concedes that it is taxing former citizens and the INA governs.
The utility of a “unilateral” relinquishment is that it gives you a piece of paper you can show your Canadian bank or the CRA to demonstrate that you are not a “US Person” despite the stain of an apparent place of birth in the wrong country. Canada is not going to want to delve into this stuff – having a piece of paper which apparently does the trick may well give them the excuse to leave you alone.
Everyone who has ever worked for a foreign government OR ANY POLITICAL SUBDIVISION of a foreign government, please note the following – with reference specifically to 8USC1481 (4)(A) –
a political subdivision would logically include a provincial or municipal government in a foreign country, as well as its national government;
the law says that by “accepting, serving in, or performing the duties of” a job in such a government, ANY job (no restriction stated or implied re rank or nature of job) when over the 18 years of age and if you at that time HAD OR ACQUIRED nationality in that country, is a potentially expatriating act (subject to the usual limitations of volition and intent to relinquish as determined by preponderance of evidence) EVEN WITHOUT having sworn an oath of allegiance to that foreign state (subsection 4A) OR having done so (subsection 4B).
Please also note that the “HAD OR ACQUIRED” bit is AFAIK the only relinquishment angle that should be a slam-dunk for a born-dual-citizen person, assuming all your actions after accepting, serving in, or performing the duties of that job are consistent with an intent to relinquish USC (i.e., you haven’t voted in a US election, traveled on a US passport except maybe into the US itself because of hassling and bullying by a US border officer upon entering on a non-US passport showing US birthplace).
Please also note that the law says nothing about the duration of your employment. So arguably part-time employment, and even co-op student employment or internship employment also would qualify EVEN IF UNPAID (there’s nothing in section 4 about payment, number of hours per week, or whether it was permanent or contract or short-term employment). You might get an argument from a vice-consul on this, but I’d suggest pushing (politely) right back and requesting that your application be forwarded to DC for final decision by someone who hopefully does know what they’re talking about, which some vice-consuls clearly don’t. Especially if you’re a “border baby” and this is your only angle for a relinquishment rather than renunciation, and double-especially if your expatriating act was before 2004, this is very much worth pursuing IMO.
I am no lawyer, but I don’t think you need an LLB to be able to understand that wording.
See e.g. http://www.law.cornell.edu/uscode/text/8/1481
Note however that service in the armed forces of another country (as distinct from serving in the public service of a foreign country) is only an expatriating act if done during a time of war (between the US and that country) or if you served as a commissioned or non-commissioned officer (e.g. sergeant or warrant officer, or anything above and including lieutenant or equivalents), ordinary “grunts” don’t qualify, no idea why that is when a low-level filing clerk in a municipality would qualify for a relinquishment, but there it is.
I have absolutely no idea however how employment in what in Canada is called a Crown Corporation (e.g., CBC) would be interpreted under this legislation. Particularly as I doubt very much if CBC requires an oath of allegiance to the Queen. Resolution of that might require a court ruling, maybe some lawyer out there knows of any jurisprudence IN THE US on this point?
Schubert –
I think you’re defining military service as an area of potential expatriation too narrowly. In a Canadian context -‘non-commissioned officer’ starts at corporal* (corporals do have a little authority, at least in theory). It also includes officer-cadets, who are in an officer category, though not commissioned. Also, everybody in the military has taken an enlistment oath to the Crown, so everybody above private has two potential grounds for expatriation. All of this goes for the reserves as much as it does for the regular force.
see: http://www.admfincs.forces.gc.ca/qro-orf/vol-01/hv-vh/cha-01/26032009-06062012-eng.asp
* or equivalent ranks in the Navy
Thanks @pacifica777 and @WhatAmI for the info.
@WhatAmI, do you mind telling me how long your wait is for your meeting at the consulate? I’m trying to get a sense of how long it’s taking to get an appointment these days.
Thanks again!
@Molly,
I don’t have a good answer. I first requested an appointment in September. I was offered an appointment just two or three weeks later, which I assumed was so quick due to a cancellation. That was too early for me, so I asked for a later one and got one 3 months down the road (early Feb). As Feb grew near, I postponed the appointment until mid-March. I still wasn’t ready so I postponed it again until mid-April. I think my postponements were given preferential treatments since I was already “in the works”.
So, all I can tell you is anywhere from 2 weeks to 3 months.
The 4079 at best is poorly written and confusing..questions 8..16..refer to relinquishing. If u are renouncing put pertains to relinquishing .. I am renouncing. . What ever fits your situation .. They are aware of it at the embassy ..