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Advice about Possible Loss of U.S. Nationality and Foreign Military Service

Section 101(a)(22) of the Immigration and Nationality Act (INA) states that “the term ‘national of the United States’ means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”  Therefore, U.S. citizens are also U.S. nationals.  Non-citizen nationality status refers only to individuals who were born either in American Samoa or on Swains Island to parents who are not citizens of the United States.   A U.S. national who is a resident or citizen of a foreign country may be subject to compulsory military service in that country.  Although the United States recognizes the problems that may be caused by such foreign military service, there is little that we can do to prevent it since each sovereign country has the right to enact its own laws on military service and apply them as it sees fit to its citizens and residents.

Military service by U.S. nationals may cause problems in the conduct of our foreign relations since such service may involve U.S. nationals in hostilities against countries with which we are at peace. For this reason, U.S. nationals facing the possibility of foreign military service should do what is legally possible to avoid such service.

Federal statutes long in force prohibit certain aspects of foreign military service originating within the United States. The current laws are set forth in Section 958-960 of Title 18 of the United States Code. In Wiborg v. U.S. , 163 U.S. 632 (1896), the Supreme Court endorsed a lower court ruling that it was not a crime under U.S. law for an individual to go abroad for the purpose of enlisting in a foreign army; however, when someone has been recruited or hired in the United States, a violation may have occurred. The prosecution of persons who have violated 18 U.S.C. 958-960 is the responsibility of the Department of Justice.

Although a person's enlistment in the armed forces of a foreign country may not constitute a violation of U.S. law, it could subject him or her to the provisions of Section 349(a)(3) of the INA [8 U.S.C. 1481(a)(3)] which provides for loss of U.S. nationality if a U.S national voluntarily and with the intention of relinquishing U.S. nationality enters or serves in the armed forces of a foreign state engaged in hostilities against the United States or serves in the armed forces of any foreign country as a commissioned or non-commissioned officer.

Military service in foreign countries, however, usually does not cause loss of nationality since an intention to relinquish nationality  normally is lacking.  In adjudicating loss of nationality cases, the Department has established an administrative presumption that a person serving in the armed forces of a foreign state not engaged in hostilities against the United States does not have the intention to relinquish nationality.  On the other hand, voluntary service in the armed forces of a state engaged in hostilities against the United States could be viewed as indicative of an intention to relinquish U.S. nationality.

Pursuant to Section 351(b) of the INA, a person who served in foreign armed forces while under the age of eighteen is not considered subject to the provisions of Section 349(a)(3) if, within six months of attaining the age of eighteen, he or she asserts a claim to United States nationality in the manner prescribed by the Secretary of State.

See also information flyers on related subject available via the Department of State, Bureau of Consular Affairs home page. These flyers include:

QUESTIONS

For further information, please contact:

Express Mail:
Director
Office of Legal Affairs (CA/OCS/L)
Bureau of Consular Affairs
U.S. Department of State
600 19th Street, N.W. -10th Floor
Washington, D.C. 20431
Fax:  202-485-8033

Regular Mail
Director
U.S. Department of State
CA/OCSL
SA-17, 10th Floor
Washington, D.C. 20522-1710 

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