Integrity Legal

Posts Tagged ‘United States Citizenship’

3rd November 2018

In recent weeks there has been a great deal of discussion in the media regarding President Donald Trump’s statements regarding the use of executive orders to fundamentally alter the way in which citizenship is conferred to individuals born in the USA. To quote directly from a recent article in the New York Times:

President Trump said he was preparing an executive order that would nullify the long-accepted constitutional guarantee of birthright citizenship in the United States…“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” Mr. Trump [said].

There are many people of various political persuasions who do not agree with the notion that Mr. Trump indeed has the legal authority to bring birthright citizenship to an end exclusively through executive order. However, there has been some debate on whether a Constitutional amendment or legislation from the United States Congress is sufficient to change the rules with respect to this issue. To quote directly from the Washington Post:

The 14th Amendment’s citizenship clause did not even address, much less resolve, the question of citizenship for the U.S.-born children of undocumented immigrants…Although the clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” Congress and courts were left to work out the full meaning of the words, “and subject to the jurisdiction thereof.”

In this blogger’s opinion it is also worth noting that the United States Supreme Court could also have a direct impact upon the way in which citizenship is defined in the United States through use of that branch of government’s interpretive powers to redefine the framework of citizenship conferment. However, the entire issue of citizenship in this context is of no particular concern for the reader of this blog as most readers of this blog reside in Thailand. For these individuals it is important to note that a change in the framework for conferring citizenship could have implications for children born to United States Citizen abroad.

Children born to United States Citizens in Thailand (or anywhere else outside of the United States) may be granted citizenship automatically through use of a Consular Report of Birth Abroad (or CRBA). In order to automatically confer United States citizenship to a child born abroad one of the parents of the child must be an American citizen at the time of the child’s birth and the American citizen must have spent the statutorily required amount of time physically present in the USA at the time the child was born. There are instances where an American citizen parent will be unable to confer citizenship to their child due to a failure to meet the physical presence requirement for automatic transmission. In such cases, it is possible to utilize the provisions of the Child Citizenship Act of 2001 to allow a child born abroad to become a United States citizen by operation of law.

These issues are important to keep in mind for Americans living abroad as it is this blogger’s opinion that Mr. Trump’s attempt to change birthright citizenship rules through executive order is likely to kick off litigation which will ultimately culminate in the United States Supreme Court. The framework for conferring citizenship rendered in an opinion of the Court could change not only birthright citizenship rules, but rules regarding citizenship for individuals born abroad as well.

As this situation evolves we will update this blog accordingly.

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10th August 2013

Millions of people around the world wish to take up residence in the United States of America and often wish to become American Citizens. However, it would appear that some Americans are cutting ties with the USA and renouncing their United States Citizenship. Names of all those Americans who renounce their United States Citizenship are recorded and published in the United States Federal Register. These lists are generally not particularly newsworthy. However, in the most recent quarterly publication regarding US Citizenship renunciation it would appear that the number of Americans renouncing their United States Citizenship has jumped by over 60% when compared to previous quarters. In the last quarter 1,131 people renounced their United States Citizenship. This number is a large increase from the previous quarter which saw only 679 renunciation. Although, when compared against the same quarter of the previous year which saw only 188 renunciations the 1,811 figure is rather staggering. Is this simply a one-time anomaly or is this the sign of a growing trend?

While some are speculating as to what this trend means in a broad socio-economic context, I feel that some analysis is necessary to put some perspective on these numbers. A reader looking at the Federal Register’s official posting regarding these numbers will likely note the following information:

For purposes of this listing, long-term residents, as defined in section 877(e)(2), are treated as if they were citizens of the United States who lost citizenship.

The casual reader may wonder: what does this mean? Well to quote directly from the Cornell Law School’s website which lists sections 877 (e)(1) and 877(e)(2):

(1) In general

Any long-term resident of the United States who ceases to be a lawful permanent resident of the United States (within the meaning of section 7701 (b)(6)) shall be treated for purposes of this section and sections 2107, 2501, and 6039G in the same manner as if such resident were a citizen of the United States who lost United States citizenship on the date of such cessation or commencement.

(2) Long-term resident

For purposes of this subsection, the term “long-term resident” means any individual (other than a citizen of the United States) who is a lawful permanent resident of the United States in at least 8 taxable years during the period of 15 taxable years ending with the taxable year during which the event described in subparagraph (A) or (B) of paragraph (1) occurs. For purposes of the preceding sentence, an individual shall not be treated as a lawful permanent resident for any taxable year if such individual is treated as a resident of a foreign country for the taxable year under the provisions of a tax treaty between the United States and the foreign country and does not waive the benefits of such treaty applicable to residents of the foreign country.

Therefore, based upon the information provided by the Federal Register and the United States statutes noted above some of those listed in the Federal Register as those renouncing their Citizenship could be United States Lawful Permanent Residents (colloquially referred to as “Green Card” holders) who have chosen to give up their permanent resident status. This explanation probably does not account for all of the “Citizenship renunciations” listed in the recent Federal Register publication, but it may account for some of these numbers. In any event, the number of those expatriating from the United States remains high compared to previous points in American history. The question remains, why are higher numbers of Americans renouncing their citizenship?

There are some who contend that the recent spike in citizenship renunciation may stem from American policy regarding taxation of United States Citizens living abroad. American Citizens (as well as lawful permanent residents) are taxed on their worldwide income, regardless of where they physically reside. This situation is in stark contrast to the tax policies of virtually every other country in the world as most countries only tax those of their citizenry who reside in their country. There are exceptions to the previous statement as issues such as domicile play into many countries’ foreign taxation policies. Many feel that the recent increases in the number of renunciations is driven by Americans with high foreign derived incomes seeking to rid themselves of the need to pay American taxes. In a major story from last year it was noted that one of the founders of Facebook had renounced his United States Citizenship before the IPO of that company’s stock. It should be noted that some argue that his tax obligations at that time may not have actually decreased as a result of his decision to give up his citizenship (due to American tax laws such as the so-called “Expatriation Tax” or “Exit Tax”), although his future tax liabilities may be reduced as a result of that decision. Perhaps more Americans are taking the (somewhat drastic) step of renouncing their citizenship in order to save some money from the tax man. Without knowing each former-American’s motivations for renouncing United States Citizenship we are left to speculate.

There may be another impetus behind the recent increase in the number of Americans renouncing their Citizenship: the FATCA. The Foreign Account Tax Compliance Act (FATCA) compels financial institutions outside of the United States to report information about accounts maintained by American Citizens or lawful permanent residents to the Internal Revenue Service. Furthermore, foreign financial institutions are also required to report on accounts maintained by foreign corporations in which Americans or Lawful Permanent Residents own a significant interest. The FATCA’s implementation has been pushed back until July of 2014. Could the looming specter of the FATCA be the reason for the recent uptick in American’s renouncing their citizenship? One of the many upshots of the FATCA is the fact that the regulatory requirements imposed by the American government on foreign banking and financial institutions can be rather burdensome. One way that these foreign institutions can relieve themselves of these burdens is by refusing to accept American customers. If there are no Americans holding accounts at a given foreign bank, then the bank does not necessarily have to comply with the provisions of the FATCA. This has lead to a situation where more and more overseas banks are refusing to provide services to Americans living and working abroad. By renouncing United States Citizenship and naturalizing to the Citizenship of another country a former American could bank in much the same manner as other foreign nationals.

The decision to renounce one’s U.S. Citizenship is a significant one and should not me made lightly. There are many benefits to being an American Citizen so those thinking of renouncing their Citizenship should review not only their tax situation, but also the intangible and tangible benefits of their American citizenship (including the US Passport). Will this trend continue? It remains to be seen, but there are many who feel that as American oversight of global taxation matters becomes more ubiquitous there will be more American’s who question the value of their citizenship.

–Benjamin W. Hart is an American attorney who resides in Bangkok, Thailand.

For related information please see: Citizenship Renunciation.

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27th May 2011

It recently came to this blogger’s attention that the Secretary-General of the Association of Southeast Asian Nations (ASEAN) has called for the nomination of a candidate for the post of IMF Managing Director who hails from Asia or a developing nation. To quote directly from a very interesting article apparently written by Umesh Pandey and posted on the official website of the Bangkok Post, BangkokPost.com:

TOKYO : Asean secretary-general Surin Pitsuwan has called on Asian countries to jointly nominate a candidate for the post of managing director of the International Monetary Fund. As the leading engine of global economic growth, Asia needs to assert itself in the way international institutions such as the World Bank and the IMF operate, Mr Surin said yesterday. “The time is for Asia to field a candidate and it doesn’t have to be an Asian. They could be a member of a Third World country but not the European Union and they surely must not be a North American,” said the Asean chief.

The administration of this web log strongly encourages readers to click on the hyperlinks noted above to gain further insight into this developing story.

Clearly, the economies which comprise the ASEAN community are becoming increasingly important in a global context. This fact coupled with the fact that there seems to be little tangible reason why the IMF directorship should continue to be exclusively held by a European leaves one to wonder what the nationality of future IMF directors will be. It seems both likely and logical that an Asian will eventually take the helm of the International Monetary Fund, but the question remains: when? Hopefully this question will one day be answered to the satisfaction of all concerned.

On a somewhat unrelated note, it also came to this blogger’s attention that a United States Senator has recently introduced legislation to provide immigration benefits to families of America’s brave servicemen and women. To quote directly from an article written by Elise Foley and posted on the Huffington Post website, HuffingtonPost.com:

WASHINGTON — Sen. Robert Menendez introduced a bill on Thursday that would allow the immigrant parents, spouses and children of active duty military service members to gain legal status, part of a push by Democrats to allow small sectors of the undocumented population to avoid deportation. “I just can’t believe that you can risk your life for America, and America can’t let you stay united with your family,” the New Jersey Democrat said at a press conference. “It seems to me that’s more than a fair trade-off.” The Military Families Act, which so far has zero Republican supporters, would grant legal permanent residence to the immediate family members of military men and women in active duty…

Readers are urged to click upon the hyperlinks noted above to learn more from this insightful and interesting article.

This blogger was relieved to hear that Senator Robert Menendez has taken up the cause of America’s military families as it is unfortunate that current law and regulation can sometimes result in adverse consequences for alien family members of those serving in the United States Armed Forces. Hopefully the proposed legislation will create a more compassionate immigration environment for the families of American Armed Forces personnel. It should be noted that those non-US Citizens serving in the American military are often eligible for expedited immigration benefits including, but not necessarily limited, expedited naturalization to United States Citizenship.

Those who read this blog with any frequency may also be aware that there is currently legislation being proposed in the American federal legislature which would go far in uniting American same-sex bi-national families. The passage of the Uniting American Families Act (UAFA), the Reuniting Families Act, and/or the Respect for Marriage Act would likely result in changes to relevant American law thereby allowing those who have entered into a same sex marriage, or similar marital union, to obtain federal benefits (including immigration benefits) in the same manner as their different-sex counterparts. How this legislation will fare in the current legislature remains to be seen, but hopefully passage of such legislation, along with the Military Families Act, will result in a tangible benefit to all American families.

For related information please see: Certificate of Naturalization.

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25th December 2010

This author recently came across an interesting piece of information on the official website of the American Immigration Lawyers Association (AILA). Apparently, the United States legislature has enacted legislation that would simplify the adoption process for Americans adopting a child, or children, outside of the United States of America. To quote directly from a recent AILA posting:

On 11/30/10, President Obama signed into law the International Adoption Simplification Act (P.L. 111-287).

The law amends the INA to include in the definition of “child,” and thus in the exemption from required admissions vaccination documentation, certain children who have been adopted in a foreign country that is a signatory to the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) or who are emigrating from such a country for U.S. adoption.

It includes in such definition and exemption a child who is under the age of 18 at the time an immediate relative status petition is filed on his or her behalf, has been adopted abroad or is coming for U.S. adoption, and is the natural sibling of: (1) an adopted child from a Hague Convention signatory country; (2) a child adopted under the age of 16 who has lived with the adoptive parents for at least two years, or a child who has been abused; or (3) an orphan who was under the age of 16 at the time an immediate relative status petition was filed on his or her behalf.

The bill was passed in the Senate by unanimous consent on 7/21/10, and passed by the House of Representatives by a voice vote on 11/15/10.

It should be noted that not all countries are signatories to the Hague Convention noted above. However, for the USA, which has joined the Hague Convention, the simplification of the adoption process could result in families being reunited in the USA much more quickly compared to the process in the recent past.

In many ways, the foreign adoption process is somewhat similar to the process of obtaining American immigration benefits for a child purusuant to the provisions of the Child Citizenship Act of 2000. The CCA’s provisions can grant United States Citizenship by operation of law to the natural born child or children of an American Citizen. That said, the process for obtaining such benefits is often very much the same as the process utilized by those Americans wishing to bring a step-child of foreign nationality to the USA. The major difference between these two processes occurs at the United States Port of Entry where children of American Citizens born abroad become US Citizens by operation of law upon admission to the USA on an Immigrant visa in the company of the American parent.

Fore related information please see: Child Citizenship Act.

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27th October 2010

It recently came to this author’s attention that the Department of Homeland Security’s United States Citizenship and Immigration Service (USCIS) has promulgated a new Naturalization Certificate. The new document has enhanced security features and is updated in order to comport with current law. To quote directly from a recent press release distributed by the American Immigration Lawyers Association (AILA):

U.S. Citizenship and Immigration Services (USCIS) today announced it has begun issuing a redesigned, more secure Certificate of Naturalization (Form N-550) as part of its ongoing efforts to enhance the integrity of the immigration system. The agency anticipates that over 600,000 new citizens will receive the enhanced certificate over the next year.

It really can seem rather astounding that the United States grants citizenship to so many people each year as there are many countries throughout the world that do not take in immigrants at nearly the rate of the United States. Furthermore, of the countries that admit immigrants it would seem that the United States is more eager to grant citizenship to those who have obeyed the immigration laws and sought naturalization through the proper channels.

The aforementioned press release went on to note some frequently asked questions posed by those interested in the U.S. Naturalization process:

Q1. What is a Certificate of Naturalization (Form N-550)?
A1. The Certificate of Naturalization serves as evidence of your citizenship. You receive it after taking the Oath of Allegiance to the United States. Citizenship qualifies you to vote and travel with a U.S. passport, among other rights. In many instances, a Certificate of Naturalization is accepted as a valid form of identification.


Q2. Why did USCIS redesign the naturalization certificate?
A2. The previous Certificates of Naturalization featured hard-copy photos of the candidates. The redesigned certificate features the naturalization candidate’s digitized photo and signature embedded into the base document. Eliminating the requirement to affix the hard-copy photo and hand-stamp the USCIS director’s signature cuts cost in man-hours and improves security.


Q3. What’s different about the new certificates?
A3. The naturalization candidate’s digitized photo and signature are embedded in the security-enhanced certificate. Its background features a color-shifting ink pattern that is difficult to recreate. Additionally, USCIS will use a more secure printing process, making it more tamper-proof.


Q4. When will USCIS issue the security-enhanced naturalization certificates?
A4. USCIS will begin using redesigned certificates at all offices beginning today. USCIS offices in Atlanta, Denver and Baltimore will begin to utilize the automated production process this week, including digitizing photos and signatures on all certificates. USCIS will deploy the automated production system agency-wide by the end of the calendar year.


Q5. Following the agency-wide transition to the new document, will all new citizens receive redesigned naturalization certificates with digitized photos?
A5. While all new citizens will receive the redesigned, security-enhanced certificate, certain, limited categories of naturalization candidates, including overseas military and homebound candidates, will receive documents with hard-copy photos affixed to their certificates.


Q6. I’ve already obtained a Certificate of Naturalization. Will I have to apply for the redesigned security-enhanced version?
A6. No. All previously issued Certificates of Naturalization will remain valid.

Q7. How does the issuance of the redesigned naturalization certificate impact applicants?
A7. The issuance of the redesigned Certificate of Naturalization will not impact Application for Naturalization (N-400) processing times. USCIS Application Support Centers (ASCs) will still require applicants to submit their fingerprints and two hard-copy photos. The ASCs will also capture a digital photograph and digital signature for each N-400 applicant.


Q8. If ASCs will capture digital photos of N-400 applicants, why must applicants still provide hard-copy photos?
A8. The hard-copy photos will be required as a back-up in case of unforeseen issues, allowing them to continue their naturalization process without delay.


Q9. Will USCIS update any of its other certificates?
A9. Yes. USCIS intends to digitize its other citizenship-related certificates, but no completion dates have been set.


Q10. Will the wording of the naturalization certificate change?
A10. Yes. USCIS has revised the wording to better reflect the current provisions of the Immigration and Nationality Act. In particular, obsolete language stating that the candidate resides in the United States and “intends to reside in the United States when so required by the Naturalization laws of the United States” has been removed. These changes affect the form of the certificate only and do not alter any legal requirements for naturalization or USCIS application processing.

This author found it interesting to note that the FAQ’s quoted above mentioned that other citizenship documentation may be updated soon. It remains to be seen whether or not the Certificate of Citizenship, which signifies US Citizenship, but for those who are Citizens not by naturalization, but through either some extraneous set of circumstances of by operation of law; will be enhanced to safeguard against fraud. Certificates of Citizenship are likely to be more common in the future particularly since the promulgation of the Child Citizenship Act, but it remains to be seen how the Certificate of Citizenship might be upgraded.

Naturalization to United States Citizenship is a serious undertaking and those interested in becoming United States Citizens should research the process thoroughly in an effort to understand the requirements and ramifications of United States Citizenship. Hopefully, this new Naturalization Certificate will result in increased security in the form of more tamper resistant documentation.

Fore related information please see: USCIS processing time, Child Citizenship Act, or Legal.

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17th August 2010

United States Citizenship is the highest lawful status that one can reach in the USA, from an Immigration perspective. Many people from around the world seek visas, travel documents, and permanent residence in the United States. Of the relative few who obtain lawful status in the United States, even fewer ultimately naturalize to US Citizenship. American Citizenship accords the Citizen with voting rights, work authorization, and virtually unfettered travel rights within the United States of America. That said, there are some situations where an American Citizen seeks to renounce their United States Citizenship. In a recent article from the New York Times it was noted that citizenship renunciation seems to be on the rise. To quote the article directly:

Amid mounting frustration over taxation and banking problems, small but growing numbers of overseas Americans are taking the weighty step of renouncing their citizenship.

“What we have seen is a substantial change in mentality among the overseas community in the past two years,” said Jackie Bugnion, director of American Citizens Abroad, an advocacy group based in Geneva. “Before, no one would dare mention to other Americans that they were even thinking of renouncing their U.S. nationality. Now, it is an openly discussed issue.”

The Federal Register, the government publication that records such decisions, shows that 502 expatriates gave up their U.S. citizenship or permanent residency status in the last quarter of 2009. That is a tiny portion of the 5.2 million Americans estimated by the State Department to be living abroad.

There are a significant number of American expatriates living throughout the world and it should be noted that not all of these individuals wish to renounce their US Citizenship. However the New York Times went on to point out:

Still, 502 was the largest quarterly figure in years, more than twice the total for all of 2008, and it looms larger, given how agonizing the decision can be. There were 235 renunciations in 2008 and 743 last year. Waiting periods to meet with consular officers to formalize renunciations have grown.

Anecdotally, frustrations over tax and banking questions, not political considerations, appear to be the main drivers of the surge. Expat advocates say that as it becomes more difficult for Americans to live and work abroad, it will become harder for American companies to compete.

Increasingly, international banks and financial institutions are finding it difficult to deal with some American financial regulations. That said, most American expatriates (or expats) seem to be more frustrated by American tax policy rather than American financial restrictions. The New York Times went on to note:

American expats have long complained that the United States is the only industrialized country to tax citizens on income earned abroad, even when they are taxed in their country of residence, though they are allowed to exclude their first $91,400 in foreign-earned income.

One Swiss-based business executive, who spoke on the condition of anonymity because of sensitive family issues, said she weighed the decision for 10 years. She had lived abroad for years but had pleasant memories of service in the U.S. Marine Corps.

Yet the notion of double taxation — and of future tax obligations for her children, who will receive few U.S. services — finally pushed her to renounce, she said.

“I loved my time in the Marines, and the U.S. is still a great country,” she said. “But having lived here 20 years and having to pay and file while seeing other countries’ nationals not having to do that, I just think it’s grossly unfair.”

“It’s taxation without representation,” she added.

Stringent new banking regulations — aimed both at curbing tax evasion and, under the Patriot Act, preventing money from flowing to terrorist groups — have inadvertently made it harder for some expats to keep bank accounts in the United States and in some cases abroad.

Some U.S.-based banks have closed expats’ accounts because of difficulty in certifying that the holders still maintain U.S. addresses, as required by a Patriot Act provision.

Even though tax considerations, for both individuals in the present and for those in the future, may be enough for some to renounce their United States Citizenship it would seem that many Americans feel as if renunciation of United States Citizenship is a very drastic measure that should not be taken lightly. Those thinking about giving up their US Citizenship are well advised to seek competent counsel from a US Immigration attorney in order to ascertain all of the relevant ramifications of such a significant decision. Those thinking of renouncing their United States Lawful Permanent Residence (LPR) might also find it useful to seek the advice of a competent attorney who can explain the legal issues that arise as a result of giving up American LPR status.

For related information please see: I-407 or naturalization.

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