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Friday, March 16, 2012

Citizenship 101 for Americans

This week I had the immense pleasure of going into town and having lunch with a very handsome and thoroughly charming American man near Saint Sulpice.  Like me he is married to a French national and has lived here in France for many years.  As you can imagine we had a lot to talk about but there was one topic in particular that had us both chortling over our meal:  how little Americans know about how American citizenship really works.  Over the years we have both heard some truly amazing statements and interrogations from people in the homeland about our status.  Americans don't seem to have a very good grip on what their citizenship really means:  how it is acquired, kept or lost, the duties and responsibilities attached to that citizenship and what it means in the world outside the U.S.

All joking aside, I find that a bit frightening.  Citizenship is an individual status - something that is between an individual (you) and a country and it will impact all aspects of your life.  Not understanding that relationship is downright dangerous and can get you into all kinds of trouble or, conversely, confer certain benefits that you may not be aware of.

Here are a few of the things I've heard or been asked about over the years about the status of American citizens abroad.  Some of these questions may seem very silly to some of you but I assure you the people who asked were genuinely interested (or genuinely hostile) and were very surprised by my answers.  I'll give the question/statement first and then my answer with links to sites where you can explore further.  As always, feel free to comment or challenge what I say:

Are all people born in the U.S. citizens of the United States?:  Yes, for the most part.  The Fourteenth Amendment to the Constitution says that anyone born on U.S. soil is a U.S. citizen.  This has been very broadly interpreted to mean everyone including babies whose mothers are tourists, businesswomen, students, undocumented workers and so on.  So, for example, a Frenchwoman on a business trip who goes into premature labor and has a baby in Boston has just given birth to a dual U.S./French citizen. This is irrespective of the wishes of the mother or father (even the other country's government has nothing to say about it).  Quite often the parents are completely unaware that the child is, in fact, an American citizen.  We call these children "Accidental" or "Involuntary" American citizens.

Nevertheless they are full U.S. citizens and have equal status with Americans in the homeland:  they have the right to return to the U.S. to live and work, they can vote in U.S. elections, they are required to have a U.S. passport to enter the U.S. and they are subject to all the tax and reporting requirements of the U.S. government.  Very often the only way these people find out they are U.S. citizens is when they grow up and travel to the U.S. on business or as tourists.   They are stopped at the border, questioned closely when the immigration officer notes their place of birth on their passport and then informed that they are, in fact, U.S. citizens.  This often comes as a huge (and often unpleasant) surprise to them.  The only people born in the U.S. who are not U.S. citizens are those who have renounced that citizenship formally at a U.S. consulate abroad and can present a CLN (Certificate of Loss of Nationality) if they are challenged.

You have to be born in the U.S. to be a U.S. citizen:  False.  American citizenship is transmitted though both jus soli (birth on U.S. soil) and jus sanguinis (blood).  A child born in China of an American mother who lived in the U.S. at some point prior to the birth and a Chinese father is an American citizen by blood even if that child never sets foot on U.S. soil.

People born in the U.S.who have never lived or worked there lose U.S. citizenship if they don't "activate" their American citizenship once they reach their majority:  False.  The U.S. has no automatic "opt out" mechanism for U.S. citizenship at the age of 18.  If a French child born in the U.S. but living in France does nothing once he/she reaches the age of majority then he/she is still an American citizen.   The only way to stop being one is to go down in person to the U.S. Embassy and renounce.  This process includes paperwork, interviews and in most cases a fee of 450 USD.  Failure to do this means that person is an American for life.

Americans who live outside the U.S. for X number of years lose U.S. citizenship:  False.  American citizenship does not come with an expiration date and is not tied to residency in the U.S.  An American citizen can leave the U.S. at any age, never come back to the U.S. to live and will still be an American citizen until he/she dies.

American citizens abroad can't vote:  False.  This is a situation so strange that it is practically a comedy.  All American citizens have the right to vote but it is tied to that U.S. state where he or she last resided or had a U.S. address. So, for example, a U.S. citizen born in California who last resided in the state of Washington and who then moved abroad and hasn't lived in the U.S. in 30 years will vote in Washington State elections.  Specifically that person is eligible to vote for Washington state representatives to the U.S. Congress (senators and representatives) and for President. In other states it appears that overseas Americans are also allowed to vote in the local elections as well as the federal ones.  There are even 18 states that allow people who have never lived or worked in the U.S. to register to vote where their parents were registered to vote.  

American citizens who marry foreign nationals and live in the foreign spouse's country lose American citizenship:  False and this one always makes me laugh because it is almost always thrown at American women who marry foreign men (rarely of American men who marry foreign women).  It used to be true in the early 20th century but those laws were challenged and dropped because, among other things, they were highly discriminatory toward women.    So, no, gentlemen, an American woman who marries a Frenchman (however mad that may make you) will still be an American for life unless she renounces.

American citizens who become citizens of another country automatically lose American citizenship:  False. An American who voluntarily naturalizes in another country is only committing a potentially expatriating act (one of 7 in fact).  However it is only an expatriating act (one that causes that person to lose citizenship) if it is committed with the intent of giving up U.S. citizenship. So, an American who becomes a citizen of Brazil, for example, will not lose American citizenship unless she intends to give up her American citizenship.  If that is not her intent, then she keeps her U.S. citizenship and becomes a dual.

American citizens abroad have to obey U.S. laws even if they are living in a foreign country:  True.  This is one that always amazes people because, after all, if someone is doing something legal in a foreign country that is illegal in the U.S. how in the world can the U.S. claim that U.S. law still applies?   Well, folks, in some cases it does though prosecutions are few.  Some U.S. laws are extra-territorial and American citizens, wherever they happen to be, are subject to them even if they are dual citizens.  Still don't believe me?  Here is a direct quotation from the U.S. State Department website:
However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there.

American citizens abroad receive special services and protection from the U.S. government:  This one is a heartbreaker because the answer is "no" for the most part.  There are no special services for long-term Americans abroad other than document services (passports and other official documents required by the host country) and some limited help when it comes to U.S. taxes.  Consular protection is limited to making sure that the family is notified if an American citizen ends up in jail or is in trouble.  They can also visit that citizen in jail and make sure that the conditions are correct.  That is about it and I want to emphasize that this is not at all the fault of the Embassy/Consulate personnel who are very nice, very efficient folks.  In my experience they always try to help but there just isn't a whole lot they can do for an American on foreign soil and they can do almost nothing for a dual.  A U.S. passport is not necessarily much help either - it doesn't buy special treatment or a "get out of jail free" card.  When a U.S. national is in another country and that country decides that person has done something wrong that person is in their jurisdiction and will suffer the consequences.  I know people who have been in that situation and, yes, those U.S. citizens went straight to a foreign jail.

As for those very particular circumstances where American citizens need evacuation from dangerous situations, the reality is that this is a service for which those citizens will be billed.  Yes, you heard me right, and you can find this information on the U.S. Department of State website where it clearly states:
Departure assistance is expensive. U.S. law 22 U.S.C. 2671(b) (2) (A) requires that any departure assistance be provided “on a reimbursable basis to the maximum extent practicable.” This means that evacuation costs are ultimately your responsibility; you will be asked to sign a form promising to repay the U.S. government. We charge you the equivalent of a full coach fare on commercial air at the time that commercial options cease to be a viable option. You will be taken to a nearby safe location, where the traveler will need to make his or her own onward travel arrangements. If you are destitute, and private resources are not available to cover the cost of onward travel, you may be eligible for emergency financial assistance.
I had a friend who was in a bad situation here in France.  She had medical problems, an abusive spouse and was completely destitute (her French spouse took all the assets). She went to the U.S. embassy here and they were very very sympathetic but the only thing they could do for her was provide her with a short-term loan for a plane ticket.  Since there was no one to help her once she got home (and she had visions of ending up sick on the streets of her home city in the U.S.) she thanked them and then threw herself on the mercy of the French who did care for her and helped her to sort out her situation.  She is now a French citizen and a very loyal and grateful one.

Another very long post.  I'll stop there.  Please feel free to comment or add your own questions and answers.  I deliberately did not touch on the U.S. tax/reporting situation but I'm sure some of you will be more than happy to talk about it. :-)

9 comments:

Karl Jauch said...

Thanks for an interesting blog. It should be pointed out that the US residency requirement for transmission of US citizenship to a child born abroad to an American and non-American married couple is a total of at least five years, at least two of which have to be after the age of 14 but before the birth of the child.

Victoria FERAUGE said...

Karl,

Thank so much for reading and for leaving your comment.

Yes, you are absolutely right about the residency requirements which, quite honestly, don't seem terribly onerous. I could well imagine a situation where the citizen parent lived in the US from birth to school age (4-5 years) and then left for another country and then came back to the US for 2 years of high school, college or to work.

That is for a child born to a married couple where one parent is an American citizen. I went back and read the DOS website and looked again at the rules for out of wedlock births and that seems to be an entirely different story. The only residency requirements seems to be 1 year of continuous residency by the mother in the US at some point before the birth.

That seems strange. Why would there be different residency requirements for transmission of US citizenship by married versus unmarried US citizens?

Does anyone know?

Karl Jauch said...

The different rules for unmarried mothers versus unmarried fathers were maintained by the Supreme Court in the Flores-Villar case (2011).

Dorothy said...

Victoria, thanks for your clear explanations.

Note that a child born to foreign diplomats in the U.S. does not get American nationality.

Also, on the out-of-wedlock births, not only does the U.S. citizen father - assuming a non-citizen mother - have to have the 5 yrs/2 yrs residence in U.S. to transmit, but ALSO there must be clear proof of a blood relationship; paternity must be formally acknowledged before child is 18; and father must agree to give financial support until age of 18.

It's hard not to see this as legislation of a bygone era, with presumptions of a U.S. girl seduced by the wily "foreigner", but on the other side, a U.S. guy having a fling with a "loose" foreign woman (well, boys will be boys)and being protected from the consequences. Nowadays, with DNA testing, it's just as clear who the father is as who the mother is, and similar rules should apply.

Victoria FERAUGE said...

Hi Dorothy,

Thanks so much for your comment and for pointing out that children of diplomats are exempt. You are absolutely right that they do not get U.S. citizenship by jus soli.

And thanks for adding the additional requirements that American fathers must comply with in order to transmit his citizenship to an out-of-wedlock child. I did get a note about this that explained that the rules that favor unmarried American women constitutes extra protection for fatherless children. My answer would be: are motherless children less worthy and not in need of protection? I just can't see how gender discrimination in this matter can be justified. I agree with you that, in a modern age these rules are simply archaic and unfair.

If someone out there has a different take on it I'd love to hear the argument. Perhaps there is something in here I'm missing?

Marcio said...

Is it true that Americans living in France don´t pay US Income Tax on their French pensions?

Victoria FERAUGE said...

Hello Marcio,

Welcome to the Flophouse and thanks for your question which is a very good one. I'm not a tax lawyer so you might also want to ask this question on a blog like this one http://hodgen.com/phils-blog/ This is Phil Hodgen's International Tax Blog and it's one of the best sources of info I've found.

However I was also able to find this site on the IRS website http://www.irs.gov/businesses/article/0,,id=187083,00.html

and the answer is "it depends." What's clear is that the US person (citizen or Green card holder) receiving that pension income must declare it to the US government wherever they happen to be living. And then that person must check to see if there is a treaty between the US and the foreign country. If there isn't then that person might be able to claim a Foreign Tax Credit to lessen the amount of US tax due.

I read through the entire page and my best take on this is that this not a "Do It Yourself" situation. I think anyone in this situation definitely needs professional help (a good international tax lawyer).

And that means, I'm sorry to say, that even if the person doesn't owe US taxes he or she is looking at paying a fairly expensive tax professional in order to file correctly.

Hope that helps,

Victoria

badger said...

Victoria, I just saw this article, and thought it tied in with your post.
http://www.startribune.com/opinion/commentaries/186542121.html?refer=y
'The citizens a nation and time forgot' by: DANIEL SWALM
Updated: January 12, 2013 - 11:58 AM

"Back then, the women who were wed to unnaturalized immigrants remained noncitizens"
..."the 59th Congress of the United States passed a really bad law (even by congressional standards): The Expatriation Act of 1907.

One provision of the law was this: If an American-born woman, a native-born U.S. citizen, married a legal immigrant, well, then, that woman lost her American citizenship. Poof. Gone. Kaput. Vanished into thin air. Congress, in all its wisdom, didn't trust a woman to be both a good wife to an immigrant husband and a good citizen of the country in which she was born.
".....

There is more here:
A Nationality of Her Own
Women, Marriage, and the Law of Citizenship
Candice Lewis Bredbenner
UNIVERSITY OF CALIFORNIA PRESS
Berkeley · Los Angeles · Oxford
© 1998 The Regents of the University of California

and, http://en.wikipedia.org/wiki/Expatriation_Act_of_1907#cite_note-14
......"However, the Cable Act itself continued to provide for the loss of citizenship by American women who married "aliens ineligible to citizenship", namely non-whites.[14]...

and this book:
see
Chapter 2
America's Prodigal Daughters and Dutiful Wives:
Debating the Expatriation Act of 1907http://publishing.cdlib.org/ucpressebooks/view?docId=ft0g500376&chunk.id=d0e1630&toc.id=&brand=ucpress

Victoria FERAUGE said...

@badger, Ah thank you for the book recommendations. I don't have either of them.

Yep, that was a pretty sad period in American history. But the Americans were not unusual in doing this. In fact a lot of countries especially in Europe did this including France at one point. Here's a post on it:

http://thefranco-americanflophouse.blogspot.fr/2011/04/citizenship-by-jus-sanguinis-not-so.html

"The Civil Code of 1803 which instituted jus sanguinis in France was restricted to children of French fathers. The man was considered the head of the house and so citizenship, like the family name, followed the father's line, not the mother's. This led to a rather disagreeable situation: most people born of foreign fathers in France were not French citizens and so could not be drafted into the army. Given the events of late 19th century Europe, this was a terrible state of affairs from the point of view of the French State. This was rectified by a law passed in 1889 which allowed for double jus soli - a child born in France of a French-born non-citizen parent became a French citizen automatically."

So it was changed in France not for any reasons of equality or justice but because too many sons of these former Frenchwomen were escaping the army and the draft. :-)