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 upon one's own application 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) (Sec. 349 (a) (6) INA);
- conviction for an act of treason against the Government of the United States or for attempting to force to overthrow the Government of the United States (Sec. 349 (a) (7) INA).
Administrative Standard of Evidence
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 a uniform administrative standard of evidence based on the premise that U.S. nationals intend to retain United States nationality when they obtain naturalization in a foreign state, declare their allegiance to a foreign state, serve in the armed forces of a foreign state not engaged in hostilities with the United States, or accept non-policy level employment with a foreign government.
Disposition of Cases when Administrative Premise is Applicable
In light of the administrative premise discussed above, a person who:
- is naturalized in a foreign country;
- takes a routine oath of allegiance to a foreign state;
- serves in the armed forces of a foreign state not engaged in hostilities with the United States, or
- accepts non-policy level employment with a foreign government,
and in so doing wishes to retain U.S. nationality need not submit prior to the commission of a potentially expatriating act a statement or evidence of his or her intent to retain U.S. nationality since such an intent will be presumed.
When, as the result of an individual's inquiry or an individual's application for registration or 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 certify 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 to ascertain his or her intent toward U.S. nationality. When the questionnaire is completed and the voluntary relinquishment statement is signed, the consular officer will proceed to prepare a Certificate of Loss of Nationality of the United States. The certificate will be forwarded to the Department of State for consideration and, if appropriate, approval.
An individual who has performed any of the acts made potentially expatriating by statute who wishes to lose U.S. nationality may do so by affirming in writing to a U.S. consular officer that the act was performed voluntarily with an intent to relinquish U.S. nationality. A U.S. national also has the option to formally renounce U.S. nationality abroad in accordance with INA Section 349 (a) (5) .
Disposition of Cases When Administrative Premise Is Inapplicable
The premise 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 in the armed forces of a foreign state engaged in hostilities with the United States;
- takes a policy level position in a foreign state;
- is convicted of treason.
Cases in categories 2, 3 and 4 will be developed carefully by U.S. consular officers to ascertain the individual's intent toward U.S. nationality.
Applicability of Administrative Premise To Past Cases
The premise established by the administrative standard of evidence 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.
A person may initiate such a reconsideration by submitting a request to a U.S. embassy or consulate or by writing directly to:
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
Each case will be reviewed on its own merits taking into consideration, for example, written statements made by the person at the time of the commission of the potentially expatriating act.
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 principle 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.
Dual nationality means that a person is a national of two countries. A person who is a dual national owes allegiance to both countries. Dual nationality can occur as the result of a variety of circumstances. The automatic acquisition or retention of a foreign nationality, acquired, for example, by birth in a foreign country or through an alien parent, does not affect U.S. nationality. U.S. law does not require a person to choose one nationality over the other. It is prudent, however, to check with authorities of the other country to see if dual nationality is permissible under local law. Dual nationality can also occur when a person is naturalized in a foreign state without intending to relinquish U.S. nationality and is thereafter found not to have lost U.S. nationality: the individual consequently may possess dual nationality. The U.S. Government does not encourage dual nationality. While recognizing the existence of dual nationality and permitting Americans to have other nationalities, the U.S. Government also recognizes the problems which it may cause. Claims of other countries upon U.S. dual-nationals often place them in situations where their obligations to one country are in conflict with the laws of the other. In addition, their dual nationality may hamper efforts of the U.S. Government to provide consular protection to them when they are abroad, especially when they are in the country of their second nationality.
See also information flyers on related subject available via the Department of State, Bureau of Consular Affairs home page. These flyers include:
- Advice About Possible Loss of U.S. Nationality and Seeking Public Office in a Foreign State
- Advice About Possible Loss of U.S. Nationality and Foreign Military Service
- Renunciation of United States Nationality