Rights after expatriation

Your rights after renunciation

There’s a lot of misinformation about what happens after renunciation, in particular regarding what rights you have vis-à-vis the United States. Some of the bad information comes from old regulations, some of it from media misreports and rumors. In this section, we want to clear up the confusion and show you exactly what you can expect.

The most important point we can make:

After renunciation, you have the same rights vis-a-vis the United States as any other citizen of your country.

Loss of U.S. Rights

When you renounce citizenship, you lose the right to live and work in the U.S.

You will not be able to vote in U.S. elections.

You will not be entitled to the protection of the United States overseas.

You will no longer be able to enter the U.S. and remain indefinitely.

Any children you have who are born after your renunciation will not receive U.S. citizenship from you (although they may receive U.S. citizenship from the other parent, from birth on U.S. soil, from naturalization later in life, etc).

Renunciation of U.S. citizenship is final and irrevocable. You lose citizenship for the rest of your lifetime.

There are no temporary renunciations or options to re-acquire U.S. citizenship. In contrast, a British citizen is allowed to renounce his citizenship in order to acquire another nationality, and then later reapply for and “resume” his British citizenship at a future date. In the U.S., there is no such provision. Once you renounce, you can never resume your citizenship.

Visiting the U.S.

If you have citizenship from one of the 35 visa-waiver countries (mainly Europe, and a few countries in Asia-Pacific; see here for list), you can travel visa-free to the U.S. for tourism or business for up to 90 days, just as any other citizen of your country may.

[Note that even though you don’t need a visa if your citizenship is from a visa-waiver country, you will still need to hold the “ESTA Travel Authorization”, which the U.S. started in January 2009 to pre-screen travellers against law-enforcement databases before they embark for the U.S. You apply for free on-line and generally receive approval within seconds.]

If your country of citizenship is not a visa-waiver country, then you can apply for a visa to the United States, just as any other citizen of your country would. You should be treated in the visa application process as other citizens of your country would be treated. Generally, if you are not a security risk and the embassy believes you have sufficient funds, sufficient reasons to return to your country, and will not overstay your visit, then you should be granted a visa. We’re personally familiar with several cases of individuals who were citizens of the U.S., renounced, and at some point later applied for visas to visit the U.S. In every case, they were treated normally and were approved for visas.

Under current law, the U.S. cannot treat you differently after your renunciation than other citizens from your country. The only law that calls for different treatment is the so-called Reed Amendment (described below), which is unworkable and unused.

Please note that after your renunciation, your biometric information – 10-digit fingerprints and digital photograph – will be taken and stored by the U.S. either when you apply for a visa or when you enter the U.S. This policy applies to all non-U.S. citizens from the ages of 14 to 79. The U.S. does not currently take biometric information from its own citizens, although it seems quite likely to begin within a few years.

We’ve had a few questions about the possibility that although the law doesn’t specify anything, U.S. officials nonetheless follow an “unwritten policy” to bar entry to ex-citizens. We know personally that this is not true. Moreover, we think it unlikely this could ever be the case. It’d be very difficult to apply (not to mention impossible to keep secret). First, information on ex-citizens is very faulty (see here for details). Ex-citizens from non-visa-waiver countries might be identified in the visa process, but records are not good enough to find all of them. And ex-citizens from visa waiver countries don’t go through any visa application process at a U.S. embassy, so border control in the United States would somehow need to have access to details of every ex-citizen and be prepared to stop them. It could happen, but it’d be a lot of technical work, and we don’t think it’s a priority for anyone.

Note that this is the current state of the law after the 2008 expatriation changes in the HEART act. Any of these policies could be altered by a new law, but at the present time there is no movement to change anything.

Regarding taxes, you will be taxed as a non-resident non-citizen unless you spend “substantial” time in the U.S., roughly defined as more than 4 months per year, on average. (The exact calculation looks at a rolling 3-year period; see here for our explanation of the full details).

Barring entry because of “taxpatriation”: The Reed Amendment

In 1996, Congress included a provision in the expatriation law to bar entry to any individual “who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States.”

This section of the 1996 Immigration law, known as the Reed Amendment, added ex-citizens to the list of other “excludables” which includs practicing polygamists, international child abductors, and aliens who have unlawfully voted in U.S. elections.

The Reed Amendment has never been enforced. There is no case of a former ctizen who was barred entry to the United States because of tax reasons.

Besides questions of basic fairness and legality, there are enormous enforcement problems with the law. How is the Attorney General supposed to determine who renounced citizenship primarily for the purpose of avoiding taxation? It’s not realistic to interview each former citizen (the Department of State interviews the individual prior to renunciation, but unless the law changes, the only purpose of that interview is to establish voluntary intent to expatriate). And even if they did interview each renunciant, on what grounds could the Attorney General contest a statement by a citizen who says that he/she didn’t expatriate in order to avoid taxation?

As for tax information, the IRS can’t legally provide tax details to other federal agencies, so the Attorney General has no information about any renunciant’s financial situation. Moreover, even if the law were somehow changed to allow the IRS to pass on tax information about former citizens, the IRS itself only gets post-renunciation tax documents from ex-citizens who meet the high-income economic test of the “covered expatriate”.

And then there’s the problem that the Attorney General doesn’t even have an accurate list of citizens who have expatriated.

A 2003 Congressional report acknowledged that the rule is unworkable, hampered by legal problems and lack of coordination among different government agencies, and that no former citizen has ever been denied entry based on the law.

None of these issues has been addressed since 1996, despite several changes to the expatriation law. The most recent law dealing with expatriation, the 2008 HEART act, also did not address the problems of the Reed Amendment.

So in theory, it’s possible that the U.S. could bar you from entry to the United States because the Attorney General believes you expatriated with the primary purpose of avoiding U.S. taxation. In practice, though, we think the chances are extremely low that this would ever happen under current law. There have been several very wealthy individuals whose expatriation drew intense media attention and Congressional criticism for tax avoidance, but they nonetheless managed to enter the U.S. after their renunciations with no problems. So unless you’re somehow more of a tax evader and object of media and Congressional scrutiny than they were, you won’t be barred entry.

5 thoughts on “Rights after expatriation

  1. Marie Gaudreau

    do you lose your right to the Social Security allowance you may have earned while you were living in the U.S.? To collect Social Security benefits one requires a SS# – does your SS# number get “cancelled’?

    Reply
  2. Manoj Parayankode Unni

    Hi,
    Thanks for the information.
    Would you also please explain the possibility of renouncing US citizenship of my minor child.

    Me and my wife are Indian citizens, we have a son (18 months old) born in USA. At present he has US passport and VISA to India.
    We are currently in US with H1B visa & H4 visa. We will return back to India for good after 3 years completing my current assignment.

    The reason for renouncing US citizenship is to avoid NRI (Non Resident Indian) status for him in school, which helps us not to pay extra fees if our son were to join school as NRI. Also we wish to make all options available in Indian education system to our son as for any other Indian citizen.

    Thanks & regards,
    Manoj

    Reply
  3. Scott Patterson

    Your site is very informative. One correction: I found on the instructions for one form on irs.gov that if a renouncer spends more than 30 days in the USA in 2015, he must file and pay taxes for the following tax year 2016. I can’t find this now, but I know its there somewhere. This differs from the rule you discuss, which applies to everyone else.

    Reply
  4. Steen Hauerbach

    What happens if the person in question later wants to live permanently in the U.S. with her U.S. husband and U.S. born children?

    Reply

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