Advice About Possible Loss of U.S. Nationality and Seeking Public Office in a Foreign State
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. Employment, while over the age of 18, with the government of a foreign country or a political subdivision thereof is a potentially expatriating act pursuant to Section 349(a)(4) of the Immigration and Nationality Act if you are a citizen of that foreign country or if you take an oath of allegiance to that country in connection to such employment. Such employment, however, will result in one's expatriation if done voluntarily with the intention of relinquishing U.S. citizenship.
The Department has, however, adopted a uniform administrative standard of evidence based on the premise that U.S. nationals intend to retain their U.S. citizenship when they naturalize as nationals of a foreign state, declare their allegiance to a foreign state, serve in the military forces of a foreign state not engaged in hostilities against the United States, or accept non-policy level employment with a foreign government. This administrative premise is not applicable when an individual fills a policy-level position with a foreign government. In such cases, the Department of State will carefully ascertain the individual's intent toward his or her U.S. nationality.
Because the Department presumes that U.S. nationals employed in non-policy level positions in a foreign government do not have the requisite intent to relinquish their U.S. nationality, U.S nationals employed in such positions are not required to present evidence of an intent to retain their U.S. nationality when they commenced their employment with the foreign government. On the other hand, because there is no administrative presumption that U.S. nationals who hold policy-level positions in foreign governments necessarily intend to retain their U.S. nationality , efforts are made to adjudicate fully such cases to determine the individual's intent. Certain policy level positions are inherently incompatible with retaining U.S. nationality. Cases of this nature generally involve heads of state or foreign ministers. Except with respect to these positions, the Department will not typically consider employment in a policy-level position to lead to loss of nationality if the individual says that he or she did not intend to lose their U.S. nationality and if the individual’s actions were consistent with the retention of U.S. nationality. Actions consistent with the retention of U.S. nationality include, but are not limited to, travel on a U.S. passport, voting in U.S. elections, payment of U.S. taxes, maintenance of a residence in the United States, etc.. In any event each policy-level position case is fully evaluated on a case-by-case basis.
An individual filling a non-policy level position will lose his/her U.S. nationality if he or she indicates an intent to relinquish U.S. nationality and if his/her behavior subsequent to accepting or performing the governmental duties is consistent with an intention to relinquish U.S. nationality. Examples of behavior inconsistent with the retention of U.S. nationality are use of a foreign passport, non-payment of U.S. taxes, failing to vote in U.S. elections, not maintaining a residence in the United States, etc.
Renunciation is the most unequivocal way by which a person can manifest an intention to relinquish U.S. citizenship. Please consider the effects of renouncing U.S. citizenship, described above, before taking this serious and irrevocable action. If you are outside the United States and have any further questions regarding renunciation, please contact the U.S. Embassy or Consulate nearest to you for more information. If you are inside the United states and have further questions about renunciation, please contact the Department of Homeland Security.