Loss of US Nationality – Renunciation versus Relinquishment?

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[The following is a Guest Post from Immigration Lawyer Ms. Teodora Purcell and does not address tax issues.

A word of caution – Do not be lulled in to thinking that by “relinquishment” you have escaped the federal tax consequences of Sections 877, 877A, 2801, 7701(a)(50), et. seq.   See, Why Section 7701(a)(50) is so important for those who “relinquished” citizenship years ago (without a CLN)]   See also, How many former U.S. citizens and long-term lawful permanent residents have filed (or will file) IRS Form 8854?]

 

Loss of US Nationality – Renunciation versus Relinquishment?

If you are a US citizen or a US non-citizen national,[1] you can lose your nationality (“expatriate”) by committing certain acts specified in the immigration statute [2] voluntarily and with the intention to relinquish your nationality.[3]US Passport

Expatriation is a personal right that cannot be exercised by another, for example, a parent cannot renounce the US citizenship of a minor child. Your motivation is also not relevant, unless you later claim you gave up your US citizenship under duress or involuntary

How can you lose US nationality?

You can lose your US nationality as a result of renunciation or relinquishment and if you make such a claim, the burden is on you to show by preponderance of the evidence (i.e. more likely than not) that all requirements have been met.[4]

The most unequivocal and the formal way of losing your US nationality is by virtue of renunciation, i.e. when you formally give up your US citizenship by taking a sworn renunciation oath before a diplomatic or consular officer abroad[5].

Other expatriating acts under the immigration statute include: 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; or accepting policy level employment with a foreign government after the age of 18 (if you have the nationality of that foreign state or an oath of allegiance is required in accepting the position);; or if are convicted of treason against the US Government.[6]

The expatriating act must occur abroad (except for an oath of renunciation taken during the state of war or conviction of treason) for it to be effective.[7]

If you perform an expatriating act listed in the statute, there is a rebuttable presumption that it was voluntarily.

If you relinquish your US citizenship, you must establish not only the expatriating act, but also your intent to expatriate and complete a detailed questionnaire (Form DS-4079, Request for Determining Possible Loss of US Citizenship) [8] have an interview with a US diplomatic or consular officer abroad, and get it approved by a Department of State (DOS) official which will issue a Certificate of Loss of Nationality of the United States, Form DS-4083 (CLN)[9].

Formal renunciation of citizenship at a US Consulate is the quicker and more unequivocal way to give up your US citizenship.[10]

However, if you renounce your US citizenship, it is much more difficult to establish a lack of intent or duress if you seek reconsideration at a later time.

US Passport

[1] INA § 308

[2] Immigration and Nationality Act (“INA”)

[3] INA § 349

[4] INA § 349(a)

[5] INA § 349(a)(5). Also, 7 FAM § 1210 and § 1280

[6] INA § 349 (a)

[7] INA §349(a)(6)

[8] Form DS-4079

[9] Form DS-4082

[10] INA § 349(a)(5). Also, 7 FAM § 1210 and § 1280

 

Teodora Purcell | Attorney at Law
FRAGOMAN

11238 El Camino Real, Suite 100, San Diego, CA 92130, USA
Direct: +1 (858) 793-1600 ext. 52424 | Fax: +1 (858) 793-1600
TPurcell@Fragomen.com

 

2 thoughts on “Loss of US Nationality – Renunciation versus Relinquishment?

    renounceuscitizenship said:
    May 15, 2014 at 4:11 pm

    Reblogged this on U.S. Persons Abroad – Members of a Unique Tax, Form and Penalty Club and commented:
    “If you relinquish your US citizenship, you must establish not only the expatriating act, but also your intent to expatriate and complete a detailed questionnaire (Form DS-4079, Request for Determining Possible Loss of US Citizenship) [8] have an interview with a US diplomatic or consular officer abroad, and get it approved by a Department of State (DOS) official which will issue a Certificate of Loss of Nationality of the United States, Form DS-4083 (CLN)[9].”

    […] Loss of US Nationality – Renunciation versus Relinquishment? […]

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