Advice about Possible Loss of U.S. Nationality and Dual Nationality
The Department of State is responsible for determining the nationality status of a person located outside the United States or in connection with the application for a U.S. passport while in the United States. 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.
Potentially Expatriating Acts
Section 349 of the INA (8 U.S.C. 1481), as amended, states that U.S. nationals are subject to loss of nationality if they perform certain specified acts voluntarily and with the intention to relinquish U.S. nationality. Briefly stated, these acts include:
- obtaining naturalization in a foreign state after the age of 18 (Sec. 349 (a) (1) INA);
- taking an oath, affirmation or other formal declaration of allegiance to a foreign state or its political subdivisions after the age of 18 (Sec. 349 (a) (2) INA);
- entering or serving in the armed forces of a foreign state engaged in hostilities against the United States or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);
- accepting employment with a foreign government after the age of 18 if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position (Sec. 349 (a) (4) INA);
- formally renouncing U.S. nationality before a U.S. diplomatic or consular officer outside the United States (sec. 349 (a) (5) INA);
- formally renouncing U.S. nationality within the United States (The Department of Homeland Security is responsible for implementing this section of the law, and any inquiries should be directed to DHS) (Sec. 349 (a) (6) INA);
- conviction for an act of treason against the Government of the United States or for attempting by force to overthrow, or bear arms against, the Government of the United States (Sec. 349 (a) (7) INA).
Administrative Presumption of Intent to Retain U.S. Citizenship
As already noted, the actions listed above will result in the loss of U.S. nationality if performed voluntarily and with the intention of relinquishing U.S. nationality. The Department has adopted an administrative presumption that U.S. nationals intend to retain United States nationality when they: obtain naturalization in a foreign state (INA 349 (a)(1)); declare their allegiance to a foreign state (INA 349(a)(2)); serve as an officer in the armed forces of a foreign state not engaged in hostilities with the United States (INA 349(a)(3)); or accept non-policy level employment with a foreign government (INA 349(a)(4)). In accordance with the administrative presumption, when an individual commits one of the foregoing acts, that person will retain U.S. nationality unless he or she affirmatively, explicitly, and unequivocally asserts an intention to relinquish such nationality.
Disposition of Cases when Administrative Presumption is Applicable
When, as the result of an individual's inquiry or an individual's application for a passport it comes to the attention of a U.S. consular officer that a U.S. national has performed an act made potentially expatriating by INA Sections 349(a)(1), 349(a)(2), 349(a)(3) or 349(a)(4) as described above, the consular officer will simply ask the applicant if he/she intended to relinquish U.S. nationality when performing the act. If the answer is no, the consular officer will record that it was not the person's intent to relinquish U.S. nationality and, consequently, find that the person has retained U.S. nationality.
Persons Who Wish to Relinquish U.S. Nationality
If the answer to the question regarding intent to relinquish nationality is yes, the person concerned will be asked to complete a questionnaire (DS-4079) to confirm his or her intent toward U.S. nationality. When the questionnaire is completed and the voluntary relinquishment statement is signed before the consular officer, and the evidence supports the stated intent, the consular officer will proceed to prepare a Certificate of Loss of Nationality of the United States. That is, if the person’s statements and conduct, particularly action contemporaneous with and subsequent to the commission of the expatriating act, are consistent with an intent to relinquish U.S. citizenship at the time of the commission of the act, the certificate will be prepared and forwarded to the Department of State for review and final decision.
In sum, an individual who has performed a potentially expatriating act under INA Section 349(a)(1) through (4) will lose U.S. nationality only by credibly affirming under oath in writing before a U.S. consular officer that the act was performed voluntarily with an intent to relinquish U.S. nationality. The burden of proof rests upon the party claiming loss and by preponderance of the evidence. A U.S. national also has the option to formally renounce U.S. nationality abroad in accordance with INA Section 349 (a) (5).
Applicability of Administrative Presumption To Past Cases
The administrative presumption is applicable to cases adjudicated previously. Persons who previously lost U.S. nationality may wish to have their cases reconsidered in light of this policy.
Disposition of Cases When Administrative Presumption Is Inapplicable
The presumption that a person intends to retain U.S. nationality is not applicable when the individual:
- formally renounces U.S. nationality before a consular officer;
- serves as an officer in the armed forces of a foreign state engaged in hostilities with the United States; or
- takes a policy level position in a foreign state
Cases in categories 2 and 3 will be developed carefully by a U.S. consular officer to ascertain the individual's intent toward U.S. nationality.
Request for Administrative Review
A person may initiate a reconsideration of a previously issued Certificate of Loss of Nationality by submitting a request for an Administrative Review to a U.S. embassy or consulate or by writing directly to an address below. Each case will be reviewed on its own merits, with a view to voluntariness and intent, taking into consideration, for example, written statements made by the person and other documentation contemporaneous in time with commission of the expatriating act.
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
U.S. Department of State
SA-17, 10th Floor
Washington, D.C. 20522-1710
Loss of Nationality and Taxation
P.L. 104-191 contains changes in the taxation of U.S. nationals who renounce or otherwise lose U.S. nationality. In general, any person who lost U.S. nationality within 10 years immediately preceding the close of the taxable year, whose principal purpose in losing nationality was to avoid taxation, will be subject to continued taxation.
- Internal Revenue Service Instructions for Completion of Form 8854
- Internal Revenue Service Guidance on Expatriation Reporting Requirements
- Internal Revenue Service Expatriation Tax
Copies of approved Certificates of Loss of Nationality of the United States are provided by the Department of State to the Internal Revenue Service pursuant to P.L. 104-191.
Questions regarding United States taxation consequences upon loss of U.S. nationality should be addressed to the U.S. Internal Revenue Service.
If the Department of Homeland Security determines that a renunciation is motivated by tax avoidance purposes, the individual will be found inadmissible to the United States under Section 212(a)(10)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(10)(E)), as amended.
See also information flyers on related subject available via the Department of State, Bureau of Consular Affairs home page. These flyers include: