Renunciation of U.S. Citizenship Gains Popularity
While our legislators debate bills relating to comprehensive immigration reform, another hot topic flies more under the radar. While foreign nationals and their advocates petition for smoother paths to U.S. permanent residence, simultaneously, a number of Americans, particularly high net worth individuals, seek to renounce their U.S. citizenship in ever-increasing numbers. But contrary to popular belief, from the immigration perspective at present, the act of renunciation does not necessarily foreclose subsequent visits to the United States as a visitor for business or pleasure.
The Internal Revenue Service (IRS) issues quarterly reports with renunciants' names; and the most recent report of Aug. 9, 2013, lists 16 pages of names.1 In fact, the number of named expatriates for the first two quarters of 2013 was more than the total number for all of 2012. As another comparison, there were 1,780 expatriates in 2011, in contrast to only 235 in 2008. Perhaps the press coverage of the 2012 expatriation of Eduardo Saverin, the billionaire cofounder of Facebook Inc.,2 as well as others like Tupperware founder Edward Tupper and Denise Rich, who was formerly married to Marc Rich, raised awareness of the option to similarly situated citizens.3 Commentators have speculated that these expatriations may have been due to increased enforcement of tax penalties. This article will discuss expatriating acts, the procedure for renunciation, visits to the United States as a tourist following the renunciation, and legislative responses.
U.S. citizenship can of course be revoked, although this complicated process entails prosecution in court and therefore is reserved for serious offenses, including fraud.4 (One common reason for de-naturalization based on fraud is where the individual lied on the application form.) U.S. citizenship can also, however, be given away by the individual, through an expatriating act. Expatriating acts generally include the following:
1. Formal renunciation;
2. Service in the armed forces of a foreign state engaged in hostilities against the United States;
3. Service as a commissioned or noncommissioned officer of a foreign state engaged in hostilities against the United States;
4. Acceptance of a policy-level position in a foreign state as either a dual national of that state or after taking an oath of affirmation in connection with the position; and
5. Conviction for treason.5
Importantly, the Department of State has "adopted the administrative presumption…that a U.S. citizen/noncitizen national intends to retain U.S. nationality when he or she commits certain expatriating acts," including naturalization to a foreign state; taking an oath of allegiance to a foreign state; service as a commissioned or noncommissioned officer of the armed forces of a foreign state that is not engaged in hostilities against the United States; and acceptance of a non-policy level position with a foreign government, as either a dual national or after taking an oath or affirmation for the employment. In contrast, a formal renunciation requires that the individual do the following:
1. Personally appear before a U.S. consular or diplomatic officer at a U.S. Embassy or Consulate;
2. Do so voluntarily;