7 FAM 1280
LOSS OF NATIONALITY AND TAKING UP A POSITION IN A FOREIGN
GOVERNMENT
(CT:CON-804; 04-30-2018)
(Office of Origin: CA/OCS)
7 FAM 1281 INTRODUCTION
(CT:CON-285; 03-06-2009)
a. This subchapter addresses the subject of development
of loss-of-nationality cases involving persons who:
(1) Have accepted, are serving in, or performing the
duties of any office, post, or employment under the government of a foreign
state or political subdivision thereof;
(2) Have attained the age of 18; and
(3) Have the nationality of the foreign state or have
taken an oath of allegiance to the foreign state.
b. The U.S. Supreme Court has ruled that a person
cannot lose U.S. nationality unless he or she voluntarily and intentionally
relinquishes that status (Vance v. Terrazas, 444 U.S. 252 (1980)). The Supreme
Court underscored in Vance v. Terrazas that expatriation depends on the will
of the citizen rather than the will of Congress, and the Department gives
great weight to the expressed intent of the individual. However, the Terrazas Court also recognized that intent may be expressed in words or found as a fair
inference from proved conduct, and the Department has taken the view that actions
inherently inconsistent with allegiance to the United States may be more
probative than words. See 7 FAM 1285 for
a fuller discussion of the subject.
c. The presumption stated in 7 FAM 1222,
paragraph a, found in 22 CFR 50.40, that a U.S. citizen/noncitizen national
intends to retain U.S. nationality applies when he or she accepts nonpolicy
level employment in the government of a foreign state. (See 7 FAM 1285 for
a discussion on what constitutes a policy-level position which the Department
now construes as meaning a head of a foreign state.)
d. If a consular officer becomes aware that a U.S. citizen/noncitizen national accepted a nonpolicy-level position in the government of a foreign
state and the individual does not advise you that his or her intent was to
relinquish U.S. nationality, the administrative presumption of intent to retain
citizenship applies. You should:
(1) See 7 FAM Exhibit 1223
and prepare the Consular Officer Attestation of Non-Loss;
(2) Enter case in ACS System; and
(3) Send attestation to Passport Records for filing
attached to Form DS-11, Application for a U.S. Passport, Form DS-82,
Application for a U.S. Passport by Mail, or Form DS-4085, Application for
Additional Visa Pages, or other passport service. If the person is not applying
for a passport, use Form DS-4085, which has been modified for this sort of
purpose.
e. If the person indicates that he or she did intend to
relinquish U.S. nationality in accepting a nonpolicy-level position in the
government of a foreign state, follow the procedures outlined in 7 FAM 1220 for
development of a loss-of-nationality case.
f. The presumption of intent to retain nationality is
not applicable to a policy-level job, but that said, the intent to relinquish
nationality must always be established, including for a foreign government
policy-level position. Much depends on the nature of the position. Many
policy-level jobs involve relatively mundane duties, e.g., health, education,
etc., which do not have implications for allegiance. Additionally, even
higher-level positions with a foreign government may not be inconsistent with
loyalty to the United States. In Vance v. Terrazas, the U.S. Supreme Court
recognized that intent can be expressed in words or found as a fair inference
from conduct. (See 7 FAM 1285 for
a discussion of the Department position that for the purposes of INA 349(a)(4)
(8 U.S.C. 1481(a)(4)) a policy level position constitutes a head of a foreign
state.) Development of a loss of nationality for a person in such a position
is explained in 7
FAM 1286.
7 FAM 1282 AUTHORITIES
(CT:CON-285; 03-06-2009)
a. INA 349(a)(4) (8 U.S.C. 1481(a)(4)), as amended,
provides that a person who is a national of the United States whether by birth
or naturalization, shall lose his nationality by voluntarily performing any of
the following acts with the intention of relinquishing United States
nationality:
(4)(A): Accepting, serving in, or performing the
duties of any office, post, or employment under the government of a foreign state
or a political subdivision thereof, after attaining the age of eighteen years
if he has or acquires the nationality of such foreign state.
(4)(B): Accepting, serving in, or performing the
duties of any office, post, or employment under the government of a foreign
state or a political subdivision thereof, after attaining the age of eighteen
years for which office, post, or employment an oath, affirmation, or
declaration of allegiance is required.
b. The following chart summarizes INA 349(a)(4) and
Section 401(d) of the Nationality Act of 1940:
|
Statute Expatriating Act
|
Dates of Application
|
Notes
|
|
INA 349(a)(4)(A) (8 U.S.C. 1481(a)(4)(A))
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On or after December 23, 1952
|
Must be a citizen of the foreign state, over the age of
18, when accepting or performing employment.
|
|
INA 349(a)(4)(B) (8 U.S.C. 1481(a)(4)(B))
|
On or after December 23, 1952
|
Must take an oath, affirmation or declaration of
allegiance to the foreign state, over the age 18, when accepting or
performing employment.
|
|
Section 401(d) NA
|
On or after January 13, 1941, but prior to December 23,
1952
|
Must be employment for which only nationals of the
foreign state are eligible; no national could be expatriated under the age of
18 in light of Section 403(b) NA.
|
c. Employment of an officer of the United
States: The United States Constitution (Article I, section 9, clause 8)
prohibits the acceptance of civil employment with a foreign government by an
officer of the United States without the consent of Congress.
d. A 1994 statute (codified at 10 U.S.C. 1060) provides
that a retired member of the U.S. armed services may accept employment with, or
hold an office or position in, the military forces of a newly democratic nation
if the Secretary of Defense or the relevant branch of the armed services and the
Secretary of State jointly approve the employment or the holding of such office
or position. (See 22 CFR Part 3a.) Within the Department of State, questions
about this subject are handled by the Bureau of Political-Military Affairs (PM)
and the Office of the Assistant Legal Adviser for Political and Military
Affairs (L/PM).
7 FAM 1283 POSITION IN THE GOVERNMENT
OF A FOREIGN STATE, INTERNATIONAL ORGANIZATION OR POLITICAL ARM OF A
PARAMILITARY ORGANIZATION
(CT:CON-449; 03-25-2013)
a. Employment in an international organization:
Employment with an international organization, even if the person is hired as a
foreign national, is not potentially expatriating because such organization is
not a foreign state.
b. Unrecognized state: Employment with a foreign state
whose government is not recognized by the United States comes within the scope
of INA 349(a)(4), provided that the state satisfies the recognized elements for
statehood. The existence, in fact, of a new state or a new government is not
dependent upon its recognition by other states. Refer all questions regarding
statehood and new governments to Ask-OCS-L@state.gov.
c. Employment with the political arm of a paramilitary
organization: Employment with such an organization does not come within the scope
of INA 349(a)(4) since it is not employment with a foreign state:
(1) However, if the organization becomes the official
government of the foreign state, whether recognized as such by the United
States or not, the U.S. citizen could come within the scope of INA Section
349(a)(4);
(2) A U.S. citizen engaged in employment with such an
organization, not with a foreign state, could come within the scope of INA
349(a)(7), if convicted by a United States court of committing any act of
treason against, or attempting by force to overthrow, or bearing arms against,
the United States, violating or conspiring to violate any of the provisions of
18 U.S.C. 2383 or willfully performing any act in violation of 18 U.S.C. 2385
or violating 18 U.S.C. 2384 by engaging in a conspiracy to overthrow, put down,
or to destroy by force the Government or the United States, or to levy war
against them, if and when he is convicted thereof by a court martial or by a
court of competent jurisdiction;
(3) The consular section of the U.S. embassy or
consulate should inform the legal attach, the regional security officer and
the defense attach of the case and include consular (CPAS), judicial (KJUS,
KCRM) and security and political/military tags (ASEC), (PINR), (PTER) in any
reporting cables regarding any potential INA 349(a)(7) case addressed to the
attention of CA/OCS and the Office of the Assistant Legal Adviser for Law
Enforcement and Intelligence (L/LEI) and the Office of the Assistant Legal Adviser
for Consular Affairs (L/CA).
d. Employment by Freely Associated States Marshall
Islands (RMI), Federated States of Micronesia (FSM) and Palau are exempt from
INA 349(a)(4): Section 144(a) of the Compact of Free Association between the
United States of America and the Federated States of Micronesia, Republic of
the Marshall Islands and the Republic of Palau provides that persons shall not
be subject to the provisions of loss of nationality in Section 349 INA, if they
are employed by the governments of these independent foreign states (see Public
Law 99-239 (RMI and FSM) and Public Law 99-658 (Palau).
7 fam 1284 PREREQUISITES FOR A FINDING
OF LOSS FOR POLICY-LEVEL EMPLOYMENT WITH THE GOVERNMENT OF A FOREIGN STATE
(CT:CON-285; 03-06-2009)
a. INA 349(a)(4) (8 U.S.C. 1481(a)(4)) establishes two
separate and distinct prerequisites, one of which must be satisfied before a
particular type of government employment can be considered potentially
expatriating.
b. INA 349(a)(4)(A) provides for loss of nationality by
a person who has or acquires the nationality of the foreign state after
attaining the age of 18.
c. INA 349(a)(4)(B) provides for loss of nationality
by a person who accepts a position for which an oath of allegiance is required
for that employment after attaining the age of 18.
d. A person may obtain a position with a foreign
government without risk of loss of U.S. nationality if neither prerequisite
applies; that is, after attaining the age of 18 he or she does not:
(1) Possess the nationality of the foreign state; or
(2) Take an oath of allegiance to the foreign state.
e. Section 401(d) NA contains the single prerequisite
that the employment be employment for which only nationals of the foreign state
are eligible. The individual must be a national of the foreign state.
Employment must be restricted to nationals of the foreign state; if an alien
may hold such a position, even if none were actually employed, the employment
is not a potentially expatriating act.
7 FAM 1285 WHAT IS A POLICY-LEVEL
POSITION WITH A FOREIGN STATE?
(CT:CON-449; 03-25-2013)
a. Except in a head-of-state or foreign-minister case,
we 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 nationality. Each policy-level position case, however, is fully evaluated
on a case-by-case basis.
b. Holding a head-of-state, head-of-government, or
foreign-minister position may be incompatible with maintaining U.S. citizenship, although the issue has not been expressly decided by the Department.
Under international law, as applied in the United States, a foreign head of
state, head of government, or a foreign minister (who is not a local national)
enjoys absolute immunity from the criminal, civil and administrative
jurisdiction of U.S. law, a status that some believe to be inconsistent with
continued allegiance to the United States. However others have expressed a
contrary view. There is also an issue as to whether this absolute immunity typically
enjoyed by a foreign head of state or head of government would extend to a U.S.
citizen or would instead be reduced to a more limited immunity such as
official acts immunity, as the United States does not surrender jurisdiction
over its own nationals. A third factor is whether the authorities of the
office would be inherently incompatible with U.S. allegiance. Additional
considerations would be whether other conduct of the individual is consistent
with retention of U.S. citizenship such as whether the individual continued to
travel to and from the United States on a U.S. passport and continued to pay
U.S. taxes, and similar indicia of intent. The possible expatriation of a head
of state is a complex issue that would need to be coordinated with the Office
of the Legal Adviser, including the Offices of the Assistant Legal Adviser for
Consular Affairs (L/CA) and the Assistant Legal Adviser for Diplomatic Law
(L/DL). Please refer all head-of-state and head-of-government cases to
CA/OCS/L (Ask-OCS-L@state.gov) because, as noted, sensitive questions regarding
the scope of immunity, its applicability to a U.S. citizen, possible waiver of
immunity, authorities of the office, and expatriation, arise.
c. In 1987, a Federal district court upheld the citizenship
of a U.S. citizen serving as a member of a foreign legislative body, despite
certain statements in the record indicating a transfer of allegiance. The
court ruled that Rabbi Kahanes formal declaration to retain citizenship made
simultaneously with the expatriating act preserved his citizenship. (See
Kahane v. Schultz, 653 F. Supp. 1486 (1987).)
7 FAM 1286 DEVELOPING A
LOSS-OF-NATIONALITY CASE FOR SERVICE IN THE GOVERNMENT OF A FOREIGN STATE
(CT:CON-449; 03-25-2013)
a. If you are presented with a case of a U.S. citizen
or dual national who is running for or holds the position of head of a foreign
state or foreign government, or other very high-level foreign government
position, you must notify your liaison officer in CA/OCS/ACS and CA/OCS/L (Ask-OCS-L@state.gov)
by email followed by a cable with the following information (if available):
(1) Name;
(2) Date/place of birth;
(3) How U.S. citizenship was acquired;
(4) Does the person have the nationality of the
foreign state? If so, how and when did the person acquire foreign nationality?
(5) Position in foreign government;
(6) Description of duties;
(7) If elected or appointed;
(8) Did the position require the taking of an oath of
allegiance? If so, provide text of oath; and
(9) Any statements made by the individual regarding
intent to retain or relinquish U.S. citizenship.
b. CA/OCS will prepare an instruction to the post, in
coordination with CA/OCS/ACS, CA/OCS/L, L/CA, and the regional bureau. This
will include guidance about whether to request the foreign head of state or
other very high-level office holder to complete the loss-of-nationality forms
outlined in 7
FAM 1212. If the head of the foreign state declines to complete Form DS-4079,
Questionnaire: Information for Determining Possible Loss of U.S. Citizenship,
intent and voluntariness will be determined based on conduct.
c. Often, a foreign government demands as a matter of
practice, or requires as a matter of law, that a U.S. citizen seeking such a
position demonstrate undivided loyalty by renouncing U.S. nationality. In that
event the individual must choose whether:
(1) To refuse the job and therefore not give up U.S. citizenship; or
(2) To accept the job with the other government and
terminate his or her U.S. citizenship.
(3) The Department generally considers such
renunciations to be voluntary because the individual had a free choice between
renouncing and not running for, or seeking, political office.
d. It is not possible to put one's U.S.
citizenship "in suspense" to be somehow "reclaimed" upon
leaving foreign government employment. Because of potential subsequent claims
that the individual never really intended to renounce, or that the act was
involuntary, these renunciations must be thoroughly documented.
7 FAM 1287 inquiries from u.s. citizens contemplating taking up a position in a foreign government
(CT:CON-285; 03-06-2009)
a. Officials at U.S. embassies and consulates and the
Department of State in Washington who receive an inquiry from a U.S. citizen/noncitizen national contemplating taking up a high-level policy position with
a foreign government may provide copies of the relevant Bureau of Consular
Affairs information brochures.
See
Advice About Possible Loss of U.S. Citizenship and
Seeking Public Office in a Foreign State
Renunciation of U.S. Citizenship
Possible Loss of U.S. Citizenship and Dual Nationality
|
b. You should not provide any opinions or assurances as
to whether such action will result in loss of U.S. nationality. Also, you
should never suggest that a temporary finding of loss of U.S.
nationality can be made and later reversed. This is not possible.
7 FAM 1288 Dual Nationals, Privileges
and Immunities, and Requests for Temporary Suspension of U.S. Nationality
(CT:CON-285; 03-06-2009)
a. The United States does not accept U.S.
citizens or U.S. noncitizen nationals as diplomats (including ambassadors) of
foreign states. U.S. nationals may serve as diplomats in a foreign mission to
the United Nations, if the Department concurs, but not as bilateral diplomats.
This is based on longstanding policy founded on Article 8 of the Vienna
Convention on Diplomatic Relations (VCDR) regarding nationality of members of
the diplomatic mission. These individuals are not eligible for U.S.
visas and must enter the United States on a U.S. passport.
b. U.S. citizens serving as foreign diplomats would be
entitled under the VCDR only to official acts immunity from jurisdiction.
While this would protect them for acts performed in the course of official
duties, it is not a bar to all suits. Moreover, they would still have to
appear in court to assert this affirmative defense. Thus, official acts
immunity would not provide immunity for criminal acts or for civil suits in
personal matters.
c. Article 22 of the Vienna Convention on Consular
Relations (VCCR) provides that consular officers may not be appointed from
among persons having the nationality of the receiving state except with the
express consent of that state which may be withdrawn at any time. It is not
the practice of the United States Government to accept a United States citizen as a consul general heading a career consular post or as any other
career consular officer. A career consular officer must be a citizen of the
foreign state and must bear an A-1 visa, which cannot be issued to U.S. citizens.
d. The Office of Protocol advises that the United States does not accept requests from sending states to prospectively waive
privileges and immunity of a dual national diplomatic or consular officer.
e. If the individual wishes to assume, or remain in, a
diplomatic or consular position in the United States, the individual may
voluntarily divest himself or herself of U.S. citizenship. Some foreign
diplomats elect to renounce U.S. citizenship under these circumstances in order
to serve in high-level diplomatic positions to the United States. It is not
necessary to renounce U.S. citizenship to take up a position for a foreign
government at the United Nations. A dual national or third-country national
cannot renounce or relinquish U.S. citizenship temporarily or put his or her U.S. citizenship in suspense while, for example, accepting a diplomatic appointment from
a foreign government.
f. As a matter of policy, the Department of State does
not permit U.S. diplomats to have the nationality of the state to which they
are assigned. The Foreign Service Act of 1980 provides that only U.S.
citizens may be appointed to the Service as officers at posts abroad and our chiefs
of mission to foreign countries may only hold U.S. nationality.
7 FAM 1289 unassigned