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.
Well you all, that is sure disappointing…I mean, I could see the relinquish vs. renounce arguement from the US gov’t IF there were any sort of clear guidebook for citizens to consult. The forms are a nightmare to wade through & seem to contradict each other– or at the very least, could easily be misinterpreted. I was coming to AU to enter a lifetime relationship (I thought), never to return to the US- fought to remain in AU because I love this country. All of the aftermath was out of my hands & I’m seeing to it now as it is now possible for me to do so.
If filing taxes or voting were a cause to kick the whole application out- why not just say so on the form? “If you have voted or filed taxes since the act, you must renounce”.
Instead, it looks like one one those, “the rule is, we’ll see how I feel the day I see it & if I slept well, I’ll give it to you” sorts of things. Arbitrary to the extreme. Unbelievable how horrible the US gov’t/IRS/all of them have become. I feel like I’m paying off the mob!
Thanks for your comments. Appreciated.
Hi Duke,
Look, I just want to live the rest of my life in my country- which is now Australia. I’m over 50, I have one sister twenty years older than me in poor health in the US- that’s about it. I moved away from my childhood home when I married young (divorced before AU) & lost touch with my friends over the years, unfortunately. My only friends then were my ex’s, & you know what happens to those when you divorce?
I don’t want to live the rest of my life wondering if some bank law or some other law might come into effect which makes things complicated once more. I’m tired of it- & reading these sites is truly disappointing & depressing- what the US has become; an enemy to it’s own people.
I also am building a business which I want free & unemcumbered from the snare of the forms & figuring & trying to find tax filers– I want an honest life, not one feeling I’m living in the shadows hoping no one finds out whatever…The thing with the banks now is really horrible.
So yes- I am 1000% positive, as I have been from the start, that I have no interest in ever returning to the US. I just didn’t do things “right”- even though there’s no clear way in knowing what “right” was…
I guess I’ll have to sacrifice some of my tiny savings I have for my kids university to pay off the “mob”. It doesn’t HAVE to be this way. If they can allow to relinquish ever, THAT, ought to be the default. I call it another money-grab & inconvenience inflicted on the innocent.
Thanks for writing. Tracy
Jane,
Welcome to Brock.
Yes, it is indeed disappointing. And, yes, *they* are the same as the mob. I, too, lost my opportunity to claim the reliquishment I should have had in 1975 when I became a Canadian citizen and at that time being warned that by doing so I would be losing my US citizenship. My story is at a link at the bottom of the home page of Isaac Brock Society.
Have you been to the post dedicated to FATCA and Australia, where JakDac is looking for others in Australia: http://isaacbrocksociety.ca/fatca-and-australia/comment-page-1/#comment-5914232
@ Jane
It is perfectly understandable that you misunderstood the statement that you needed 5 yrs of tax filings to expatriate after getting your Aus citizenship. The old rules were that you needed to file 10 yrs AFTER you applied for expatriation. The US keeps moving the goalposts so even those whose job it is to give tax advice find it confusing. The US tax code is the largest book in the world I believe.
There is one slim chance that you could still relinquish, if you have accepted a job and worked for the Australian government but in your case it would have to be started AFTER you had done all those US acts ie (filing, voting, passport application).
.INA 349 (a) (4) (A) accepting, serving in, or performing the duties of any office, post, or
employment under the government of a foreign state or a political subdivision thereof,
after attaining the age of eighteen years if he has or acquires the nationality of such foreign.
See
Reports by Persons who Relinquished US Citizenship Upon Taking Government Employment, Immigration and Nationality Act, s. 349(a)(4)(A) Under the relinquishment section.
The 8854 form ends with, “if you expatriated IN 2014″…? It doesn’t say 2014 or after?
Are they updating it for 2015?
@Jane
Yes, it’s updated every year, which of course implies an additional risk for renunciants, since they can never know what’s in store on the following year’s form at the time they renounce.
What constitutes a municipal government job? Is it enough to be a city employee?
@Peter Faris
Yes, municipal (city) employment counts if you knew at the time you started the job that you were a US citizen, that accepting the employment was a potentially expatriating act, and you took the employment with the intention of relinquishing your US citizenship.
You need to be able to prove your employment including the exact date you started. They _may_ ask how you were aware that the employment was potentially expatriating.
I did all of the above and successfully had my relinquishment approved and dated back 40 years. I was a city employee and filled pot holes in roads.
How about teaching school? Does anyone know if teaching elementary school in Ontario would qualify as a government job for relinquishing.
@ed
You should ask your question on the “Ask your Questions, Relinquishment and Renunciation of US citizenship” section. It will get more attention there.
I would imagine that if you were paid by your Municipal or National gov then it should count but others may be better informed than me to answer.
You should not have done anything American, like vote, pay US taxes or apply or use a US passport since taking the Gov job.
If your past relinquishment is not accepted then you are fully entitled to renounce but I believe you will have to pay another $2350.
@Ed…dittos what Heidy said.
There must have been INTENT and the employer MUST be a political subdivision of a foreign govt.
Depending on date when you did, may determine if you want to buy a CLN or self document with a lawyer.
The concern on buying a CLN is if there is a risk of getting shot down then you are more screwed than if you self documented.
But its a very personal decision and there is no right/wrong.
@Ed,
Good question! I have not seen this come up before. In Alberta, being a hospital administrator and filling potholes in city streets has been successful. When they started charging $2,350 for relinquishment, I asked the senior clerk in Calgary if a denied relinquisher would have to pay the fee again, and she guessed not. It was very early on and they had not received any guidance at that point.
WhatAmI / Ed — worth determining. Here is information for where WhatAmI and I live — the Province of Alberta, Canada
https://en.wikipedia.org/wiki/List_of_school_authorities_in_Alberta
The Canadian province of Alberta has 365 school authorities, which are sometimes referred to as school boards, school districts or school divisions. Types include public school, separate school and francophone school authorities. There are also charter schools and private schools that act as their own authorities, as well as schools under the authority of early childhood services(ECS) private operators and Federal Indian Affairs.[1] Alberta’s school authorities report to Alberta Education.
@ed,
Not sure whether teachers swear any kind of oath of allegiance similar to that required by a province, like that required for public servants of the Province of Ontario, in order to become employed by a school board. But perhaps one was required to do so in the past at one time – might depend on the specific time period – particularly in the old days when everyone had to sing ‘God Save the Queen’ every morning in elementary school! Might also vary with the province or school board involved, ex. public vs. separate, public English vs. public French.
Probably the school board in question could tell you. The College of Teachers doesn’t require any oath of allegiance from its members – and in any case has only existed since May 20, 1997.
Sorry @ed, I was speaking in the context of Ontario. Don’t know about what other provinces require of teachers.
@badger,
It’s well established in the FAM (and even INA 349 after reading it hundreds of times) that swearing an oath to a country where you already have citizenship means nothing with respect to potentially expatriating acts. Oaths are of interest only when taken by a US citizen who doesn’t have that country’s citizenship.
Early on, some consuls insisted on an oath but they eventually learned their own rules after lots of practice.
To supplement WhatAmI’s comment, here’s the links to the Immigration and Nationality Act, s. 349(a) and 7 FAM 1252 (Foreign Affairs Manual).
INA s. 349(a)(4) is the sub-article for relinquishment by government employment, indicating that an oath is not required if one is a citizen of the country of employment, and 7 FAM 1252(h) explains why they consider an oath irrelevant if one is a citizen of the country.
As a citizen of Canada, you fall under INA s. 349(a)(4)(A) for which no oath is required. If you are not and do not acquire Canadian citizenship, then you’d fall under s. 349(a)(4)(B), which does require an oath.
Thanks @WhatAmI, I’m not well versed in this, just chimed in re the specific issue of whether elementary teachers counted as employees of a political subdivision of a foreign (i.e. NON-US) country, re;
“– Government employment in a foreign state or a political subdivision thereof, 349(a)(4) [eg. federal, provincial, municipal];”
I see that in some places school boards are described thus;
“Other countries, eg, Australia, have no local governing bodies but are administered from the central governments.”
The Canadian Encyclopedia says:
“…….School boards are a phenomenon rather peculiar to Canada and the US. Some other countries, such as Britain, have school committees, but these are really subgroupings of municipal bodies. Other countries, eg, Australia, have no local governing bodies but are administered from the central governments.”
http://www.thecanadianencyclopedia.ca/en/article/school-boards/
“…Starting with Metro Toronto in the early 1950s, and continuing with other urban regions in the late
1960s and early 1970s, the Province created two-tier or “federated” municipal
government structures. These regional municipalities (and their counterparts,
regional school boards) were to plan, manage, and finance urban development and,
through cost-sharing arrangements, promote regional social equity in education,
social services, and public health.”……
http://munkschool.utoronto.ca/imfg/uploads/275/1560_imfg_no_17_online_full_colour.pdf
So it seems to me that being employed as a teacher would count in the sense of being;
“– Government employment in a foreign state or a political subdivision thereof, 349(a)(4) [eg. federal, provincial, municipal];”
So, @Ed, and @readers, in response to @WhatAmI’s comment above, please ignore my comments/questions of whether it is relevant to relinquishing whether teachers in Ontario in the past or currently were/are required to swear oaths of allegiance as a condition of employment.
It looks to me as if school boards – in the example of those in the Province of Ontario, would count as subdivisions of municipalities (or regional governments?).
Thanks @pacifica for the clarification re the question of oaths; “…As a citizen of Canada, you fall under INA s. 349(a)(4)(A) for which no oath is required. If you are not and do not acquire Canadian citizenship, then you’d fall under s. 349(a)(4)(B), which does require an oath.”
Thanks for the information, you people are terrific. I married into this US taint. My wife was born in the states to a Canadian Father and a US mother in 58. The family moved back to Canada in 68. She has never worked, paid taxes, voted, or had a US passport. She took the teaching job in 82 and has taught in Ontario ever since. Not sure if doing nothing is best or perhaps do a post dated relinquishment. Any thoughts? We have 3 kids, 18, 21 and 24. Do they have any risk of having US taint? Of course we didn’t register them. My wife was told when she voted in a Canadian election her US citizenship would be lost. I think she first voted in 79.
First: The easy one. Your children have zero risk of US taint unless they choose to. In that case, like Ted Cruz , they could make a claim to be ‘Murican.
The hard question is what your wife should do. Ask yourself-Has anything changed that makes it desirable to attempt renunciation? Renunciation could be problematic. Voting is not a sufficient reason. Advice back then was frequently wrong because the State dep’t had a basic disagreement with the courts and didn’t, at that time, approve of dual citizenship-they were forced to accept it.
@Ed,
Your wife did not live in the US long enough to give your kids any US taint.
Voting in foreign elections was removed from INA 349 as an expatriating act in October 1978, so she has nothing to claim there. Taking away US citizenship due to voting was deemed unconstitutional starting back in the 60’s, so even voting prior to Oct 1978 when it was finally removed from the law might not succeed.
@Ed & @Duke,
No, Ed’s kids cannot claim US citizenship even if they wanted to. His wife would have had to have lived in the US for 6 more years:
https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/citizenship-child-born-abroad.html
Looks like we have 3 options.
1. Do nothing and hope that we stay under the radar. That US birthplace on the Canadian passport is really the only indicator but it scares me. We have the full spectrum of banking, pension plans, rrsp’s, resp’s, tfsa’s and joint account.
2. Relinquish back dated to the 1982 teaching job. Would there be any tax compliance issues with this? This would cost the $2350 and we would have to go through the whole consulate process but if successful would end up with the cleanest break.
3. Self document with a lawyer? I’m not really sure what this involves.
@Ed
It’s such a hard decision. Doing nothing scared me. Attempting a claim scared me because if denied, did that put me on the DoS/IRS radar? For myself, I felt it worth the risk of being denied.
A relinquishment back-dated to 1982 gets her off the hook for any and all tax filing.
I’ve never understood #3. Perhaps self-documenting with a (Canadian) lawyer would be accepted by a Canadian financial institution for the purposes of not having a CLN for FATCA, but I see no other use for it.