An Immigration Perspective on Giving Up US Citizenship
Internet tycoons, pop stars and Hollywood actors aren’t the only people renouncing US citizenship these days. Burdened with ever-increasing tax compliance regulations, onerous reporting obligations and mounting professional fees to accountants and advisors, ordinary Americans residing aboard are trying to simplify their lives by taking steps to give up US citizenship.
Walking away from US citizenship is a logical decision for many dual-national Americans who are troubled by the prospect of incurring significant lifelong compliance costs and fearful of potential penalties for lapses or missteps for the sake of holding on to their US passport.
The process to formally renounce US citizenship involves the submission of carefully prepared application documents to the US Embassy abroad followed by an in-person interview at which a fee of $2350 is paid to the US government. The Federal Register, the official government record reporting the number of people giving up US citizenship, has published a list of 1,158 names for first quarter 2016. While the overall percentage is low in comparison to the total population of Americans, the number has been steadily increasing over the past several years and is reported frequently in the media.
Before you make the permanent and irrevocable decision to wave goodbye to US citizenship, below are three key immigration factors one should consider before severing ties with Uncle Sam:
Will you want to visit the United States in the future?
Renunciation does not result in a permanent bar from entry into the United States, however if you no longer hold US citizenship you will have to apply for the appropriate authorization to enter the United States.
Before determining the type of visa required, it’s important for your lawyer to know whether you have a criminal record (such as a DUI, assault or drug arrest), a prior immigration violation or anything unusual that would rise to the surface and pose a potential barrier for entry into the United States. An American passport holder with a criminal violation is free to travel in and out of the United States (barring extreme circumstances such as a treason conviction or an attempt to violently overthrow the US government. See Expatriation Act of 1954.) In contrast, a foreign national with the same offence will be scrutinized closely and could face lengthy delays in visa issuance.
If you have a clean record and intend to travel for a brief business trip or a holiday you should obtain authorization through the Electronic System for Travel Authorization (ESTA), available if one holds a passport from one of 38 designated countries. If you are not ESTA-eligible or need to travel to the United States for an extended period, to spend time with an elderly parent for example, then you would want to apply for B-2 visitor visa at the US Embassy to allow for longer periods of travel as a visitor. You should be aware that you will always require permission to enter the United States either by way of ESTA authorization or a visa. By renouncing US citizenship you permanently give up the right to travel freely into and out of the United States.
Will you want to work in the United States in the future?
Many dual nationals work for global companies on assignments requiring frequent international travel. These individuals may need to engage in temporary project work or long-term employment in the United States on behalf of their foreign employer. If you fit this description you would need to obtain a work visa. The L-1 Intra-company Transferee, E-2 Treaty Investor, O-1 Extraordinary Ability, I Member of Foreign Media, H-1B Specialty Occupation categories could all be options depending upon the type of role, the nature of the company, the length of the assignment and your qualifications.
You would have to undergo the same high level of scrutiny and lengthy process that other foreign nationals are subject to, including a visa interview at the US Embassy. You should seek advice from an immigration attorney for guidance in preparing for this interview, as questions will arise as to why one is seeking to work in the United States following renunciation of US citizenship. The Customs and Border Protection officers may also single you out for questioning when entering the United States on the first entry into the United States following the renunciation of citizenship. By renouncing US citizenship you permanently give up the right to work in the United States without restriction.
Do family members (spouse or children) intend to live, work or study in the United States in the future?
For those with minor children, a US passport or green card may open up opportunities for the child in the future. A US citizen parent who has resided in the United States for the minimum period of time (generally, five years two of which are after age 14) could automatically transmit US citizenship to a foreign-born child. If a US citizen renounces citizenship he or she no longer has the legal right to transmit citizenship to minor children.
If a US citizen has already transmitted US citizenship to his or her minor children prior to renouncing citizenship then the children’s citizenship is not affected by the parent’s decision to renounce and the child will continue to enjoy the benefits of US citizenship. It is important to note that parents cannot renounce citizenship on behalf of a child once the child has US citizenship. The regulations generally require that a child waits until age 18 to renounce his or her own citizenship if this is the path the child chooses to take.
The foreign spouse of a US citizen may be on a career path that could lead to an assignment in the United States. Renunciation of US citizenship would eliminate the option for the foreign spouse to secure a marriage-based green card. Perhaps this would not pose any critical problems if the foreign spouse’s employer is willing to incur the expense of obtaining a work visa for the foreign spouse, but the foreign spouse would be reliant on the employer to carry out the visa process and the spouse’s time in the United States would be restricted to the period of time authorized by the employer. Renunciation of US citizenship would narrow the scope of options available for family members to live and work in the United States in the future.
You will face additional consequences other than the key immigration implications outlined above, including losing the right to vote in US federal elections and the right to protection from the US government when travelling outside of the United States. These consequences are significant and should equally be evaluated carefully. However, in our experience, the three factors set above appear to weigh most heavily on the minds of individuals in this position.
Immigration considerations can often be overlooked in the renunciation of US citizenship process. The legal ramification of loss of US citizenship are significant and it’s important that you seek an integrated strategy between a tax advisor and immigration lawyer to ensure that critical issues are addressed. The decision should be made with sound legal guidance and you should have full knowledge and awareness of the consequences before embarking down this path.
NNU Immigration can provide the following service for those seeking support and guidance through the Renunciation of US Citizenship process:
- Advising on the ramifications of loss of US citizenship including travel to the United States post-loss of US nationality
- Preparing and submitting the required documentation to the US Embassy
- Scheduling the renunciation appointment at the US Embassy
- Liaising with the embassy prior to the appointment
- Corresponding with the designated tax advisor throughout the process, particularly regarding the timing for the renunciation appointment
- Preparing you for the embassy appointment and interview
- Follow-up regarding the issuance of the Certificate of Loss of Nationality
If you have a question about renouncing US citizenship, please contact one of our attorneys at email@example.com or +44 0208 004 3492.
This post does not constitute direct legal advice and is for informational purposes only.