Advice About Possible Loss of U.S. Citizenship and Seeking Public Office in a Foreign State
DISCLAIMER: THE INFORMATION IN THIS CIRCULAR IS PROVIDED FOR GENERAL INFORMATION ONLY. QUESTIONS INVOLVING INTERPRETATION OF SECTION 349(A)(4) INA WITH RESPECT TO A PARTICULAR CASE SHOULD BE ADDRESSED TO THE BUREAU OF CONSULAR AFFAIRS' OFFICE OF OVERSEAS CITIZENS SERVICES, OFFICE OF LEGAL AFFAIRS (CA/OCS/L).
The Department of State is the U.S. government agency responsible for determining whether a person located outside the United States is a U.S. citizen or national. A U.S. citizen who assumes foreign public office may come within the loss of nationality statute, which is Section 349 of the Immigration and Nationality Act of 1952 (INA), as amended, (8 U.S.C. 1481) or other legal provisions as discussed below.
Currently, there is no general prohibition on U.S. citizens' running for an elected office in a foreign government. Under Article 1, section 9, clause 8 of the U.S. Constitution, however, U.S. federal government officers may not accept foreign government employment without the consent of Congress. See 22 CFR Part 3a regarding acceptance of employment from foreign governments by members of the uniformed services.
With respect to loss of nationality, 349(a)(4) of the Immigration and Nationality Act (INA), as amended, is the applicable section of law. Pursuant to 349(a)(4), accepting, serving in, or performing duties in a foreign government is a potentially expatriating act if the person is a national of that country or takes an oath of allegiance in connection with the position. Thus, the threshold question is whether the person's actions fall within the scope of this provision. Information used to make this determination may include official confirmation from the foreign government about the person's nationality, and whether an oath of allegiance is required.
In addition, the prefatory language of section 349 requires that expatriating act be performed voluntarily and "with the intention of relinquishing U.S. nationality." Thus, if it is determined that the person's action falls within the purview of 349(a)(4) INA, an adjudication of the person's intent must be made.
The Department has a uniform administrative standard of evidence based on the premise that U.S. citizens intend to retain U.S. citizenship when they obtain naturalization in a foreign state, subscribe to routine declarations of allegiance to a foreign state, serve in the military forces of a foreign state not engaged in hostilities against the United States, or accept non-policy level employment with a foreign government. This administrative premise is not applicable when an individual seeks public elected office in a foreign state or other policy-level position. In such cases, the Department of State will carefully ascertain the individual's intent toward U.S. citizenship.
Because the Department's administrative practice presumes that U.S. citizens employed in non-policy level positions in a foreign government do not have the requisite intent to relinquish U.S. citizenship, there are no efforts to seek out or adjudicate the citizenship of citizens who fall into this category of employment. On the other hand, because there is no administrative presumption that U.S. citizens who hold policy-level positions in foreign governments necessarily intend to retain their U.S. citizenship, efforts are made to fully adjudicate such cases to determine the individual's intent. (Service in a country's legislative body is considered by the Department to be a policy level position.)
In some cases, it would appear that holding a foreign office may be incompatible with maintaining U.S. citizenship (e.g. if the position necessarily entails absolute immunity from U.S. law and the powers of the office are exercised in a manner contrary to United States law), although even this situation would be examined on a case by case basis. The Department does not normally consider foreign government service alone as sufficient to sustain the burden of showing loss of U.S. citizenship by a preponderance of the evidence when the individual has explicitly expressed a contrary intent. This is particularly true when the individual continues to file U.S. tax returns, enters and leaves the U.S. on a U.S. passport (as required by law), maintains close ties in the U.S. (such as maintaining a residence in the U.S.), and takes other actions consistent with an intent to retain U.S. citizenship. Conversely, a person who publicly denied an intent to retain citizenship, and/or who exercised the authorities of a very high-level foreign office in a manner flagrantly violative of United States law or otherwise inconsistent with allegiance to the United States, stopped paying his/her taxes, traveled to the United States on a foreign passport, and abandoned any residence in the United States might be found to have intended to relinquish U.S. citizenship notwithstanding certain statements to the contrary. Therefore, the Department will consider statements, as well as inferences drawn from the person's conduct, in determining one's intent to remain a U.S. citizen. Intent is determined on a case-by-case basis in light of the facts and circumstances of each individual's case. If expressed intent and conduct are consistent with a lack of intent to relinquish U.S. citizenship, the Department would generally conclude that no loss has occurred.
For further information about possible loss of U.S. citizenship and seeking public office in a foreign state, please contact:
Express Mail:
Director
Overseas Citizens Services, Office of Legal Affairs (CA/OCS/L)
Overseas Citizens Services
Bureau of Consular Affairs
U.S. Department of State
4th Floor
2100 Pennsylvania Avenue, N.W.
Washington, D.C. 20037
Phone: 202-736-9110
Fax: 202-736-9111
Email: ASKPRI@state.gov
Regular Mail
Director
Overseas Citizens Services, Office of Legal Affairs (CA/OCS/L)
Overseas Citizens Services
Bureau of Consular Affairs
U.S. Department of State
SA-29, 4th Floor
Washington, D.C. 20520
02/ 01/2008
