Dual Citizenship: What the State Department Actually Says, the Persistent Myth, and the Rules That Govern Loss of U.S. Nationality

What changed

The Department of State’s settled position on dual citizenship is set out at the DOS Dual Nationality fact sheet and elaborated in the binding adjudication guidance at 7 FAM 1110 (“Acquisition of U.S. Nationality”) and 7 FAM 1210 (“Loss of U.S. Nationality”). The legal framework rests on three points:

1. U.S. law does not encourage dual nationality, but it is permitted in practice. The DOS fact sheet states explicitly: “U.S. law does not mention dual nationality or require a person to choose one nationality or another.” The popular belief that a U.S. citizen who acquires a second nationality automatically loses U.S. citizenship is incorrect.

2. Loss of U.S. nationality requires both an expatriating act AND the intent to relinquish citizenship. INA §349(a) (8 U.S.C. §1481(a)) lists seven categories of expatriating act, including naturalizing in a foreign state, taking an oath of allegiance to a foreign state, serving in foreign armed forces engaged in hostilities against the United States, accepting certain foreign government employment, formally renouncing nationality, and committing treason. Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. Terrazas, 444 U.S. 252 (1980) hold that involuntary loss is constitutionally barred; the act must be performed voluntarily and with the specific intent to relinquish U.S. nationality. The current operating presumption at 7 FAM 1222 is that a U.S. citizen who performs a routine expatriating act (e.g., naturalizing in another country) does NOT intend to relinquish unless she affirmatively manifests that intent.

3. The intent presumption was confirmed by the 1990 DOS administrative review. The current “rebuttable presumption against loss” framework dates to the April 16, 1990 DOS adoption of the rule, memorialized at 7 FAM 1222(c), under which a U.S. citizen who acquires foreign citizenship after birth, who accepts non-policy-level foreign government employment, or who takes a routine oath of foreign allegiance is presumed not to have intended relinquishment.

Why it matters

Four practical implications follow.

First, a U.S. citizen can hold a second (or third) nationality without affirmative action. A child born in the United States to foreign-national parents typically acquires both U.S. citizenship by jus soli under the Fourteenth Amendment and the parents’ citizenship under the country-of-origin’s nationality law; she is a dual citizen from birth, requires no documentation of the dual status, and cannot be required to choose between them. A naturalized U.S. citizen whose country of former nationality does not require renunciation as a condition of leaving — the DOS fact sheet notes that the U.S. oath of allegiance includes language renouncing other allegiances but does not, by itself, operate to terminate the foreign nationality under the foreign country’s law — likewise typically retains the prior nationality.

Second, the U.S. citizen must enter and exit the United States on a U.S. passport. 22 U.S.C. §212 and the DOS dual-nationality fact sheet require U.S. citizens to use a U.S. passport for entry and departure, even when the dual citizen would prefer to enter on the foreign passport. Entering on the foreign passport will typically be detected at primary inspection and may trigger a referral to secondary; the practical consequence is delay rather than denial. Conversely, the dual citizen may use the foreign passport when entering the foreign country, and indeed must, since that country’s law typically requires its citizens to do so.

Third, U.S. tax obligations follow citizenship, not residence. A U.S. citizen residing abroad remains liable for U.S. federal income tax on worldwide income under 26 U.S.C. §1 and subject to FBAR foreign-account reporting under 31 U.S.C. §5314 and FATCA Form 8938 reporting under 26 U.S.C. §6038D. The foreign-earned-income exclusion at IRC §911, the foreign tax credit at IRC §901, and U.S. tax treaties mitigate but rarely eliminate the obligation. Dual citizens routinely discover the U.S. tax-on-worldwide-income rule late, sometimes decades into expatriate life; the standard remediation is the IRS Streamlined Foreign Offshore Procedures.

Fourth, certain expatriating acts can still cost U.S. citizenship if performed with the requisite intent. Even after the 1990 reform, a U.S. citizen who:

• Accepts a policy-level foreign government position — head of state, head of government, foreign minister, or equivalent — may face an INA §349(a)(4) review without the benefit of the routine-non-policy presumption (see 7 FAM 1224);
• Serves as an officer in a foreign armed force engaged in hostilities against the United States — INA §349(a)(3); or
• Makes an affirmative renunciation under INA §349(a)(5) via the DS-4080 oath at a U.S. consulate abroad,

faces loss of U.S. nationality unless she rebuts the intent presumption. The routine cases — naturalizing abroad, taking a routine foreign oath of office, accepting non-policy government employment — do not, under current practice, result in loss.

A common related question: does the citizenship oath at U.S. naturalization terminate the applicant’s prior citizenship? The oath text at 8 C.F.R. §337.1 includes a renunciation phrase: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty…” The renunciation is effective for U.S. legal purposes, but it does not operate to terminate the foreign nationality under that country’s law. Whether the prior citizenship persists depends on the foreign country’s nationality statute. Many countries (Mexico, Ireland, Israel, the United Kingdom, many EU member states) do not treat U.S. naturalization as terminating their nationality; others (Japan, India, China for adults, Singapore) do.

Way forward

Practical guidance for a U.S. dual citizen:

1. Verify your status on both sides. Confirm your U.S. citizenship documentation (passport, birth certificate, naturalization certificate, or N-600 Certificate of Citizenship) and your foreign citizenship documentation (foreign passport, foreign national ID). The U.S. side and the foreign side operate under independent legal systems; what one recognizes the other may not.

2. Travel with both passports. Use the U.S. passport for entry to and exit from the United States and for clearing U.S. customs; use the foreign passport for entry to that country. Carry both on any trip that crosses both jurisdictions.

3. File U.S. tax returns every year. A U.S. citizen living abroad must file a federal income-tax return if her gross worldwide income exceeds the standard filing threshold, regardless of where the income is earned or whether foreign tax has been paid on it. The Foreign Earned Income Exclusion (Form 2555) and the Foreign Tax Credit (Form 1116) mitigate but do not eliminate the obligation; the return must still be filed.

4. File FBAR and FATCA reports. Annual FBAR (FinCEN Form 114) reports are required for U.S. citizens whose aggregate foreign-account balances exceed $10,000 at any point in the year. FATCA Form 8938 reports attach to the federal return at higher thresholds. Penalties for non-filing are substantial.

5. Before accepting foreign government employment, check the §349(a) implications. Routine foreign government positions are not expatriating under current 7 FAM guidance, but heads of state, heads of government, foreign ministers, and ambassadorial-level appointments raise INA §349(a)(4) policy-level concerns. The DOS dual-nationality fact sheet and 7 FAM 1224 detail the analysis.

6. Do not rely on consular informal guidance to resolve a borderline question. Loss-of-nationality questions go through the DOS Office of Overseas Citizens Services on the Form DS-4079 questionnaire and result in a written determination — either a Certificate of Loss of Nationality or a confirmation that nationality is retained. Get the question in writing if it matters.

Disclaimer

This article is editorial commentary on the U.S. position regarding dual citizenship and loss of nationality under INA §349; it is not legal or tax advice. Loss-of-nationality determinations and the corresponding tax obligations are fact-specific and the foreign-law side varies country by country. Verify against the primary source — 7 FAM 1110 and 1210, the INA §349 statutory text, and the DOS Dual Nationality fact sheet — and consult both an immigration attorney and a cross-border tax specialist when the question carries financial or estate-planning weight.