Immigration Law Considerations
Ausbürgerung – יורד – Expatriación – – المغتربين – Expatrié – Ausgebürgerter – 外籍 – Espatri
Each of these terms can have a significantly different meaning, depending upon each country, different histories and distinct cultural experiences. The meaning of “expatriate” in the U.S. itself has now become a loaded word, meaning different things to different people.
Only recently has the term “expatriate” conjured up tax consequences, largely due to U.S. tax law and the attention it has gotten over the last 5-6 years around the world. The term “expatriate” or “expatriation” appeared sparingly in the U.S. tax law (less than a dozen times), until modifications made in 2008, which introduced no less than 46 news uses of the term “expatriate” or “expatriation” in Section 877A.
Different countries throughout history have had their own experiences with so-called “expatriates.” I will write a series of posts that touch upon the meaning of such terms throughout different societies, including in different points of time and history.
Ausbürgerung – יורד – Expatriación – – المغتربين – Expatrié – Ausgebürgerter – 外籍 – Espatri
Can the U.S. Federal Government Bar Entry into the U.S. to a U.S. Citizen without a U.S. Passport?
This is a most interesting question that affects many millions of individuals who have lived most all of their lives outside the U.S. They typically have a passport from their home/residence country, but have not taken steps to obtain a U.S. passport.
The U.S. federal regulations seem clear in their requirements. See, the Department of Homeland Security and Department of State published regulations in 2008.
Does a U.S. citizen have a Constitutional right to be permitted to enter into the U.S., notwithstanding these regulations?
More to come on this topic.
The U.S. Civil War is the Origin of U.S. Citizenship Based Taxation on Worldwide Income for Persons Living Outside the U.S. ***Does it still make sense?
Many people are surprised to learn why (and when) the U.S. federal government first imposed U.S. citizenship based taxation on worldwide income. It was during the U.S. Civil War.
Professor Reuven Avi-Yonah explains in his article why Congress imposed the income tax in 1864 in the Civil War and cites to the Revenue Act of 1864 which imposed worldwide U.S. taxation on:
” . . . any citizen of the United States residing abroad”, regardless of whether the income arose “in the United States or elsewhere.” See, Revenue Act of June 30, 1864, ch. 173, sec. 116, 13 Stat. 223, 281; discussed on p. 3 – The Case Against Taxing U.S. Citizens, Avi-Yonah
The quote of a then Senator during the Civil War who worked on the committee that drafted the initial law in 1861, is illuminating as to its rationale:
We do not desire that our citizens who have incomes in this country…should go out of the country, reside in Paris or elsewhere, avoiding the risk of being drafted or contributing anything personally to the requirements of the country at this time, and get off with as low a tax as everybody else… If a man draws his income from our public debt, or from property here, and resides in Paris, skulking away from contributing his personal support to the Government in this day of its extremity, he ought to pay a higher income tax.
President Abraham Lincoln signed the 1864 tax law that imposed a tax of up to 10% (the highest tax rate at the time) for incomes greater than about US$230,000 in current U.S. dollars (US$10,000 dollars in 1864). The tax expired in 1873.
Does such a system of worldwide taxation on USCs and LPRs residing overseas continue to make sense during the 21st century?
This is, of course, a tax policy question to be left to those who make the laws.
In the meantime, U.S. citizens and LPRs residing outside the U.S. must generally be aware of how the U.S. tax law applies to them. See, USCs and LPRs Living Outside the U.S. – Key Tax and BSA Forms
Immigration Law Perspective – Abandonment of Lawful Permanent Resident Status – It Can Happen Automatically
This is a guest post from immigration lawyer Jan Bejar –
Abandonment of Lawful Permanent Resident Status – It Can Happen Automatically
A lawful permanent resident (LPR) of the U.S. – or in other words, someone who has a “green card” – can lose permanent resident status through removal (“deportation”) or abandonment.
First, an LPR may lose permanent resident status if he commits an act that makes him deportable, for example commission of a certain crime, and if the immigration court issues a final order of removal (“deportation”) after immigration court hearings.
Second, an LPR may abandon his or her permanent resident status. An LPR abandons his or her LPR status automatically, by operation of law, when he or she engages in an abandoning act, such as submitting a Form I-407, Abandonment of Lawful Permanent Resident Status, or by simply departing the U.S. for more than a temporary visit abroad. Completing and submitting Form I-407 contemplates a conscious choice to abandon permanent resident status. On the other hand, departing the U.S. for more than a temporary visit abroad may lack the same formality but carries the same serious consequences.
As a general matter, a permanent resident card is not a tourist vista. An LPR cannot live outside the U.S. and use a permanent resident card to visit the U.S. occasionally without maintaining signs of a residence in the U.S. The Department of Homeland Security (DHS) will make an abandonment finding after an LPR has taken a single trip outside the U.S. of more than one year, and the LPR can only challenge the finding in the context of removal proceedings. For a single trip outside the U.S. of six months up to one year, DHS will presume that the LPR intended to abandon his or her permanent resident status, but the LPR may rebut the presumption. Further, on a case-by-case basis, DHS may deem that an LPR has abandoned his or her residency even if he or she has not been outside the U.S. for more than six months on any single trip if he or she has spent a significant amount of time outside the U.S. on multiple trips abroad.
The factors that DHS and the courts look at to determine if an LPR has abandoned his or her permanent resident status include the purpose and duration of the trip abroad; the event abroad, if any, after which the LPR planned to return; and the LPR’s family ties, employment, property holdings, and business affiliations in the U.S. and in the foreign country. Filing a U.S. income tax return as a tax nonresident alien raises a rebuttable presumption of abandonment.
If an LPR is aware that he or she will need to spend significant time abroad, then he or she should apply for a reentry permit prior to departure. The reentry permit alone does not guarantee that the LPR will be allowed to reenter following a long absence, but the reentry permit increases the chance of admission and is evidence of the intent to return to the U.S. and maintain permanent resident status.
Jan Joseph Bejar, Esq.
For: JAN JOSEPH BEJAR,
A Professional Law Corporation
There are important legal differences between “renouncing” and “relinquishing” U.S. citizenship. Specifically, the federal tax consequences that follow from one versus the other can be quite important. The principle point is the “timing” of when USC status terminates.
The federal tax reporting can be quite different for those who “relinquish” or “renounce” U.S. citizenship. For related background information see the following:
Certifying Under Penalty of Perjury – Meeting the Requirements of Title 26 for Preceding 5 Taxable Years
What could be the focal point of IRS Criminal Investigations of Former U.S. Citizens and Lawful Permanent Residents?
More posts to following regarding “relinquishing” or “renouncing” U.S. citizenship.
The specific facts surrounding the citizenship of Elizabeth Taylor may never become public knowledge. She was not born in the U.S. and hence did not receive U.S. citizenship via the 14th Amendment. She was born in London, England in 1932 to U.S. citizen parents and hence obtained derivative U.S. citizenship via her parents.
Ms. Taylor apparently tried to renounce in Paris at one point, unsuccessfully when married to Richard Burton around the time she won the Oscar for Who’s Afraid of Virginia Woolf?.
There were various newspaper reports published in the 1960s about how she first attempted to renounce (unsuccessfully) and then later successfully renounced while married to Richard Burton.
Which countries do most Lawful Permanent Residents (“LPRs”) reside in – if they are not living in the U.S.?
This is a very important question for purposes of the “tax-expatriation” rules that can apply to LPRs who leave the U.S. and live predominantly in another country. This is particularly important if the individual lives in a country with a U.S. income tax treaty.
See the article – Oops…Did I “Expatriate” and Never Know It: Lawful Permanent Residents Beware! International Tax Journal, CCH Wolters Kluwer, Jan.-Feb. 2014, Vol. 40 Issue 1, p9.
For statistical information of LPRs and their country of origin, see, Rytina, Nancy; Estimates of the Legal Permanent Resident Population in 2012, Office of Immigration Statistics (July 2013). p 3.
Country of Birth
Mexico was the leading country of origin of the LPR population in 2012 (see Table 4). An estimated 3.3 million or 25 percent of LPRs came from Mexico. The next leading source countries were China (0.6 million) and the Philippines (0.6 million), followed by India (0.5 million) and the Dominican Republic (0.5 million). Forty-two percent of LPRs in 2012 were born in one of these five coun-tries. The 10 leading countries of origin, which also include Cuba, Vietnam, El Salvador, Canada, and the United Kingdom, repre-sented 55 percent of the LPR population.
Should the U.S. government consider it a positive development that about 3,000 citizens renounced in 2013?
Some view this number to be a statistical blip; considering there are some 13.3 million lawful permanent residents (“LPRs”) many of whom are trying to become U.S. citizens. See, Rytina, Nancy; Estimates of the Legal Permanent Resident Population in 2012, Office of Immigration Statistics (July 2013).
The 200% increase in U.S. citizenship renunciations in 2013 compared to 2012 is still yet a fraction of those persons who are wishing to become U.S. citizens.
If all the 13.3 million LPRs plan on becoming U.S. citizens, this represents a mere 0.02% of those renouncing citizenship. Assume just 1/2 of the LPRs above are planning on becoming U.S. citizens, this still represents only 0.04% of those renouncing citizenship.
Bottom Line: There is a big line of people trying to become U.S. citizens versus a very small line of people trying to shed their U.S. citizenship.