UNCLASSIFIED (U)

8 FAM 307
Retention of Citizenship

8 FAM 307.1

Retention Provisions

(CT:CITZ-7; 08-14-2018)
(Office of Origin: CA/PPT/S/A)

8 FAM 307.1-1 introduction

(CT:CITZ-7; 08-14-2018)

a. Retention provisions of U.S. citizenship law are conditions subsequent to acquisition of U.S. citizenship which may result in cessation of citizenship.

NOTE: This differs from expatriation provisions of U.S. law (8 U.S.C. 1481) explained in 7 FAM 1200.

b. The retention provisions were put in place generally to reduce divided loyalties and ensure that foreign-born citizens with only one citizen parent would absorb American influences and values and regard themselves as Americans after having spent several years in the United States as teenagers or young adults. 8 FAM 307.1-7 provides a chart summarizing the former retention provisions. The retention provisions of the Immigration and Nationality Act (INA) were repealed by Public Law 95-432 on October 10, 1978. Persons born on or after October 10, 1952, who acquired U.S. citizenship through birth abroad to one U.S. citizen parent, are not required to be physically present in the United States to retain U.S. citizenship. The repeal was not retroactive and did not restore citizenship to those whose citizenship had already ceased by operation of the repealed law.

c. Persons whose citizenship ceased as a result of the operation of former section 301(b) INA were provided a means of regaining citizenship on March 1, 1995 by an amendment to INA 324 (8 U.S.C. 1435) by the taking of an oath of allegiance. The text of the oath is provided at 8 FAM 307.1-8.

d. The role of consular officers at posts and passport specialists at passport agencies and centers with regard to retention provisions is limited to:

(1) Administering the oath of allegiance to persons who lost U.S. citizenship under the former retention provisions (see 8 FAM 307.1-8); and

(2) Subsequently ensuring removal of the former retention provision related lookout from the Consular Lookout and Support System (CLASS) via the Passport Lookout Tracking System (PLOTS) by authorized persons. See 8 FAM 501 and 8 FAM 505.2. CLASS code entries related to the former retention provisions include:

Reason Code Q (Questionable Claim), SubCode 103; Reason Code I (Insufficient evidence of citizenship), SubCode 63; and Reason Code L (Loss of Nationality), SubCode free text 301(b).

8 FAM 307.1-2 Restoration of Citizenship Under Section INA 324(d)(1)

(CT:CITZ-7; 08-14-2018)

a. INA 324(d) (8 U.S.C. 1435(d)), effective March 1, 1995, added by section 103 of the Immigration and Nationality Technical Corrections Act of 1994, Public Law 103-416, (108 Statutes at Large 4305) provides for the restoration of U.S. citizenship to those persons who did not fulfill the physical presence retention requirements of former section 301(b). The former INA section 301(c) made the provisions of 301(b) applicable to persons born subsequent to May 24, 1934, who had not complied with the retention provisions of sections 201(g) and 201(h) of the Nationality Act of 1940. INA 324(d)(1) (8 U.S.C. 1435(d)(1)) allows a person to regain U.S. citizenship upon application and upon the taking of a prescribed oath of allegiance (see 8 FAM 307.1-8).

b. INA 324(d) (8 U.S.C. 1435(d)) does not restore citizenship retroactively to those who take the oath. Therefore, a person whose citizenship is restored under INA 324(d) cannot use that restoration as a basis for the transmission of U.S. citizenship to any of her/his children born abroad during the period between the cessation and restoration of U.S. citizenship.

c. Eligible persons are persons born abroad between May 24, 1934, and October 10, 1952 to one U.S. citizen parent and one alien parent who:

(1) Ceased to be U.S. citizens for failure to satisfy retention requirements and received an official determination to that effect by the Department; or

(2) Did not fulfill the retention requirements and are making a first time claim for U.S. citizenship; and

(3) Do not advocate totalitarian forms of government per section INA 313. (This is determined when they complete the oath (see 8 FAM 307.1-8).)

d. The following procedures must be followed for eligible persons applying for restoration of U.S. citizenship under section INA 324(d)(1):

(1) The applicant must execute a passport application;

(2) The applicant must also complete form DS-4079, Questionnaire Information for Determining Possible Loss of U.S. Citizenship;

(3) The consular officer must determine whether the applicant was subject to and failed to comply with applicable retention provisions under former section 301(b) INA;

(4) The consular officer must determine if the applicant committed any potentially expatriating act under INA 349 (8 U.S.C. 1481). If a determination is made that the applicant committed such an action, suspend the passport application for 90 days and refer the potential loss of nationality case to CA/OCS/L (Ask-OCS-L@state.gov) for determination (see 7 FAM 1200). The potentially expatriating act would have had to have been committed before the failure to retain under INA 301(b);

(5) If a determination is made that the person failed to comply with former section 301(b) INA, the consular officer must prepare a statement on letterhead using the format and wording shown in 8 FAM 307.1-8;

NOTE: If the applicant objects to taking an oath, you may substitute the word affirm/affirmation as appropriate. USCIS has advised the Department that it is also permissible to delete the portion of the oath regarding bearing arms on behalf of the United States, if requested.

(6) The applicant must fill out and sign the top portion of the statement. Upon signature, the consular officer, passport specialist, or any other person duly authorized to take an oath must administer the oath of allegiance. The consular officer or passport specialist must then sign and date the statement. It is not necessary to include a consular seal. Provide the applicant with a copy of the completed oath at no charge;

(7) The consular officer or passport specialist must conduct a name clearance in the CLASS. For processing 324(d)(1) cases, when there is a CLASS hold (L-F Lookout) for persons born abroad between May 24, 1934, and October 10, 1952, the Department will, without prior review of the file, send back a message stating "LOSS OF NATIONALITY: OK TO ISSUE AFTER 324(d) OATH IS TAKEN. Upon receipt of this message, you may approve the documentation for the 324(d)(1) applicant. The consular officer or passport specialist must then follow the steps to remove the retention provision lookout. Remove the LOOKOUT if applicable; and

(8) Consular officers and passport specialists must submit passport applications, including all supporting documentation such as the oath of allegiance for record keeping in accordance with established procedures outlined in 8 FAM 702.1-9(G). In submitting the applications to the Department, place the 324(d)(1) passport applications on top of, or separate from the non-324(d)(1) applications, and mark accordingly.

8 FAM 307.1-3 historical context of the retention provisions

(CT:CITZ-7; 08-14-2018)

a. There were no physical presence requirements for retention of U.S. citizenship for persons born abroad to a U.S. citizen parent before May 24, 1934.

b. On April 13, 1906, the Senate passed a joint resolution providing for a commission to examine the subjects of citizenship of the United States, expatriation and protection abroad. The Commission concluded that legislation was required to settle some of questions addressed. (House of Representatives Document 326, 59th Congress, 2nd Session, Letter from the Secretary of State Submitting Report on the Subject of Citizenship, Expatriation and Protection Abroad, February 8, 1907; James B. Scott, David J. Hill & Gaillard Hunt Report; Hackworth, Digest of International Law, Vol III, 279-, Loss of Right of Protection 286 (1942)). The resulting legislation was the Act of March 2, 1907 34 Statutes at Large 1228 (see 8 FAM 102.1).

8 FAM 307.1-4 Defenses of Unawareness, Impossibility of Performance, and Misinformation in Retention Context

(CT:CITZ-7; 08-14-2018)

a. The defenses of unawareness, impossibility of performance and misinformation, explained in 8 FAM 307.2, require more complex analysis to develop and should not normally be pursued where retention of citizenship is the core issue.

b. The consular officer is not required to discuss the option of employing one of the defenses unless the applicant provides information in an interview or in documentation that clearly suggests that such a defense may be viable.

c. Moreover, when the consular officer has determined that an applicant may come within the scope of 8 FAM 307.2, after the provisions are explained by the consular officer, the applicant may elect to waive the 8 FAM 307.2 defense option and choose to take INA 324(d) oath. In fact, there will likely be very limited circumstances when an applicant would want to establish a defense rather than take the oath, the main one being the ability to transmit citizenship to children born during the time citizenship had ceased. If the 8 FAM 307.2 defense is pursued, the consular officer must reflect this in the consular officer opinion accompanying the application. The consular officer must notify the applicant in writing of any Department action regarding the 8 FAM 307.2 defenses and of the INA 334(d) alternative in the event the 8 FAM 307.2 defense is not upheld by the Department.

d. Once the INA 324(d) oath is taken, the Department will assume the applicant was either not eligible or waived any right to employ a defense, unless otherwise demonstrated by the applicant.

8 FAM 307.1-5 The Constitutionality of Retention Provisions

(CT:CITZ-7; 08-14-2018)

a. In Rogers v. Bellei (see 8 FAM 102.3-8), the U.S. Supreme Court upheld the constitutionality of section 301(b) INA and held that the case of a person who had ceased to be a U.S. citizen by failing to comply with section 301(b) was distinguishable from cases involving loss of nationality by performance of an act expatriating by statute and in which the issue of intent was pertinent.

b. 14th Amendment definition:

(1) Persons who acquire U.S. citizenship by birth abroad do not come within the 14th Amendment's definition of citizenship; and

(2) Because retention requirements are a condition subsequent to citizenship acquisition, 301(b) subjects who failed to comply are considered to have ceased to be U.S. citizens rather than to have lost U.S. citizenship as per INA 349. Intent in 301(b) cases is immaterial. Persons who did not fulfill the 301(b) requirements ceased to be U.S. citizens regardless of their desire to keep their citizenship. 301(b) cases were not appealable to the former Board of Appellate Review but could be administratively reviewed in CA/OCS. The current procedure for review of such cases is for the applicant to direct a written inquiry to the director, Office of Policy Review and Inter-Agency Liaison, Overseas Citizens Services, Bureau of Consular Affairs, SA-29 4th Floor, Department of State, Washington, D.C. 20520 or Ask-OCS-L@state.gov.

8 FAM 307.1-6 Persons Subject to Retention Provisions Who Apply for Visas

(CT:CITZ-7; 08-14-2018)

a. Visa application may reveal claim to U.S. citizenship: Persons who are unaware of a claim to U.S. citizenship, who were misinformed about their status, or who were prevented from complying with the retention provisions may come to the post's attention when they apply for visas. 22 CFR 40.2(a) states: "A national of the United States shall not be issued a visa or other documentation as an alien for entry into the United States." Guidance on handling a visa applicant who may be or may have been a U.S. citizen follows.

b. Persons applying for non-immigrant visas (NIVs):

(1) When a possible claim to U.S. citizenship is discovered in the course of an application for a nonimmigrant visa, the applicant should be informed of the possible claim and referred to the post citizenship unit;

(2) Visa applicants with potential claims to citizenship who are unable or unwilling to delay travel until the citizenship claim is proven and the 301(b) issue resolved, may be considered an alien and may proceed with the nonimmigrant visa application. Consular officers should advise the applicant to pursue the possible claim to citizenship upon their return from the United States;

(3) If the citizenship unit is satisfied, after reviewing the questionnaire and any other information obtained, that the applicant did not acquire U.S. citizenship, it must promptly refer the applicant (or applicant's file) back to the post's visa unit for continued processing of the visa application;

(4) 22 CFR 40.2(a) states: "A former national of the United States who seeks to enter the United States must comply with the documentary requirements applicable to aliens under the INA":

(a) Therefore, the application of a person who lost citizenship through failure to comply with the retention provisions should be treated as that of an alien unless and until citizenship is restored through the various means discussed in this chapter (for 301(b) cases). Applications of such persons who have immediate travel plans or who do not wish their status reviewed should be treated as those of aliens; and

(b) A person whose U.S. citizenship was held lost through failure to comply with the retention provisions can be documented as a citizen most expeditiously by taking the 324(d)(1) INA oath of allegiance.

(5) If the consular officer determines that the readily available evidence supports a finding that the visa applicant acquired citizenship at birth and satisfied the retention requirements, but there is not enough time for the person to gather certified copies of the documents needed to prove the claim, the applicant may be issued an emergency passport provided the applicant is not the subject of a Certificate of Loss of Nationality and the applicants name has cleared the passport lookout system. See 7 FAM 1360 for the description of the procedures relating to the issuance of emergency passports.

c. Persons applying for immigrant visas (IV)s who may have a claim to U.S. citizenship: The citizenship status of applicants for IVs must be resolved in every case without exception. Whenever an applicant for an immigrant visa appears to have a claim to U.S. citizenship, the visa application must be delayed pending determination of citizenship status. If the person appears to have a claim to citizenship, the case should be processed as outlined in 7 FAM 1300 and 7 FAM 1100. Meanwhile, action on the visa application must be suspended.

8 FAM 307.1-7 Summary of Retention Provisions

(CT:CITZ-7; 08-14-2018)

Date of Birth	Transmission Requirements	Retention Requirement	Statute
Before noon EST 5/24/1934	U.S. Citizen Father and U.S. Citizen Mother++ Could Transmit;	None	Section 1993 Revised Statutes (RS) (48 Stat. 797);   301 (h) INA
Noon EST 5/24/1934 and prior to 1/13/1941	Either U.S. Citizen Father or Mother Could Transmit	5 years residence between ages 13-21 if begun before 12/24/1952; or   2 years continuous physical presence between ages 14 and 28*; or   5 years continuous physical presence between ages 14 and 28 if begun before 10/27/1972 **; or   None if parent employed certain occupations   None if alien parent naturalized and child began to reside permanently in U.S. while under age 18	Section 201(g) and 201(h) Nationality Act (NA)       Former Section 301(b) and 301(c) INA     Former Section 301(b) and 301(d) INA           Section 201(g) NA     Former Section 301(b) INA
1/13/1941 and prior to 12/24/1952	Citizen parent resided in U.S. or possession 10 years prior to childs birth, five of which after the age of 16	2 years continuous physical presence between age 14 and 28*; or   5 years continuous physical presence between ages 14 and 28 if begun before 10/27/1972**;   None if parent employed in certain occupations   None if child born on or after 10/10/1952   None if alien parent naturalized and child began to reside permanently in U.S. while under age 18	201(g) NA           Former Section 301(b) INA and former Section 301(d) INA;   Public Law 95-432               Former Section 301(b) INA
	Citizen parent in U.S. Military 12/7/1941-12/31/1946 and resided in U.S. or possession 10 years prior to childs birth, 5 of which after age 12	2 years continuous physical presence between ages 14 and 28*; or   5 years continuous physical presence between ages 14 and 28 if begun before 10/27/1972**;   None if child born on or after 10/10/1952;   None if alien parent naturalized and child began to reside permanently in U.S. while under age 18	Section 201(i) NA
	Citizen parent in U.S. Military 1/1/1947 12/24/1952 and physically present in U.S. or possession 10 years prior to childs birth, five or which after age 14, and who did not qualify under either provision above	2 years continuous physical presence between ages of 14 and 28*; or   5 years continuous physical presence between ages 14 and 28 if begun before 10/27/1972 **; or None if child born on or after 10/10/1952; or None if alien parent naturalized and child began to reside permanently in U.S. while under age 18	Section 301(a)(7) INA now INA 301(g) Former Section 301(b) INA Former Section 301(b) and 301(d) INA           Public Law 95-432     Former Section 301(b) INA
12/24/1952 and prior to 11/14/1986	Citizen parent physically present in U.S. or possession 10 years prior to childs birth, five of which are after age 14. Honorable U.S. military service, employment with U.S. Government or intergovernmental international organization or as dependent unmarried son or daughter and member of the household of a parent in such service or employment, may be included	None	Section 301(a)(7) INA, now INA 301(g)
On or after 11/14/1986	Citizen parent physically present in U.S. or possession 5 years prior to childs birth, two of which are after age 14	None	INA 301(g); Public Law 99-653; Public Law 100-525

* Absences of less than 60 days in aggregate during 2 year period does not break continuity.

** Absences of less than one year in aggregate during 5 year period do not break continuity.

++ Immigration and Nationality Technical Corrections Act of 1994, INA 301(h), Public Law 103-416

+++ The retention requirements do not apply to persons who acquired U.S. citizenship under section 1993, R.S., as amended, through birth abroad out of wedlock to a U.S. citizen woman (7 I. & N. 523). The Department and the former Immigration and Naturalization Service both hold that the legitimation after January 13, 1941, of a child who acquired U.S. citizenship through birth abroad out of wedlock to an American mother between May 24, 1934, and January 13, 1941, does not affect in any way the citizenship status that the child acquired at birth. Even if the child is legitimated by an alien father, the retention requirements do not apply.

8 FAM 307.1-8 OATH OF ALLEGIANCE TO THE UNITED STATES UNDER INA 324

(CT:CITZ-7; 08-14-2018)

OATH OF ALLEGIANCE TO THE UNITED STATES
UNDER THE IMMIGRATION AND NATIONALITY ACT

 

This statement is for use under section 324(d)(1) of the Immigration and Nationality Act (INA) by a person who was a citizen of the United States at birth and lost such citizenship for failure to meet the physical presence retention requirements under section 301(b) INA.

 

______________________________________________________________

Name of Applicant (Please Print Name in Full)

 

_____________________________________________________________

Date of Birth

 

_____________________________________________________________

Place of Birth

 

 

I solemnly swear that I have performed no voluntary act which would cause me to be within any of the provisions of section 313 of the Immigration and Nationality Act relating to persons opposed to Government of Law or who favor totalitarian forms of Government. I hereby apply to take the oath of allegiance to the United States as prescribed by Section 337(a) of the same act. I understand that taking the oath restores U.S. citizenship as of the date of the oath and is not retroactive to the date of failure to retain.

 

 

 

 

 

OATH OF ALLEGIANCE

 

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform non-combatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

 

 

________________________________________________

Signature of Applicant

 

Subscribed and Sworn to Before Me by the Above Named Applicant

 

________________________________________________________

Signature of Passport Issuing Officer

 

________________________________________________________

Typed Name of Passport Issuing Officer

 

________________________________________________________

Date

 

 

 

(SEAL)

 

UNCLASSIFIED (U)