Former U.S. Citizens Face Visa Discrimination Returning to the USA

Former U.S. Citizens Face Visa Discrimination Returning to the USA

By Mark Nestmann • June 27, 2012

The numbers of U.S. citizens and long-term residents "expatriating"—i.e., giving up U.S. citizenship or long-term permanent residence status—is skyrocketing. Official statistics from the IRS state that in 2011, almost 1,800 people gave up their U.S. citizenship or handed in their "Green Card" to U.S. authorities.

That's an all-time high since the IRS began compiling expatriation statistics in 1998. Still, while there are compelling reasons for certain persons to expatriate, the official number of people doing so remains tiny when compared to the estimated six million U.S. citizens and Green Card holders residing outside the United States.

One reason why expatriation remains relatively rare is that it means that you no longer have an automatic right to live in or even temporarily visit the United States. U.S. passport-holders, by virtue of their U.S. citizenship, have a virtually unlimited right to leave and re-enter the United States, and take up permanent residence anytime. Occasionally, U.S. citizens are forbidden to re-enter the United States, but these exclusions appear to have no legal basis.

This status changes dramatically after expatriation. No country grants non-citizens automatic entry or residence rights, and the United States is no different. Indeed, U.S. border control and immigration policy is among the strictest of any country.

Don't Come Back!

Non-resident aliens (NRAs) with previous U.S. nationality or permanent residence once were treated virtually the same as other NRAs for purposes of entry or re-entry to the United States.

This status began to change in 1996, when Congress enacted the Reed Amendment to the Immigration & Nationality Act. The amendment gives the U.S. Attorney General the discretion to deny re-entry into the United States to a former U.S. citizen who renounced U.S. citizenship in order to avoid U.S. taxation. Exclusion is limited to former U.S. citizens and doesn't include former Green Card holders. (The Attorney General’s authority transferred to the Secretary of Homeland Security under the Homeland Security Act of 2002.)

While the authority of the Reed Amendment has never officially been issued, some U.S. consular officials have denied visa applications from former U.S. citizens, apparently using the Reed amendment as an excuse. This is despite the fact that according to the Department of State Foreign Affairs Manual,

"The Department of Homeland Security has not published implementing regulations on INA 212(a)(10)(E) (8 U.S.C. 1182), so no procedures implementing this law are currently in effect."

Then, only a few weeks ago, Senators Charles Schumer (D-N.Y.) and Bob Casey (D-Pa.) introduced legislation (The "Ex-PATRIOT Act") that would permanently bar "covered expatriates" from ever returning to the United States. What's more, the law would be retroactive to anyone expatriating up to ten years prior to its enactment. However, in common with the Reed Amendment, it would apply only to former U.S. citizens—not to former green card holders.

A "covered expatriate" is someone who at the time of expatriation meets one or more of the following tests:

  • A global net worth exceeding $2 million
  • Average annual federal income tax liability exceeding $151,000 for the five years preceding expatriation
  • Fails to certify compliance with all federal tax and reporting obligations for the five years preceding expatriation.

The Advantages of a "Visa-Waiver" Passport

Fortunately, the Ex-PATRIOT Act hasn't been enacted. But even without it, I've recently learned of a few examples where former U.S. citizens have been denied a re-entry visa to the United States. Visa denial hasn't been based on the Reed Amendment or any other tax or wealth-related justification. Instead, it's been based on section 214(b) of the Immigration & Nationality Act. In visa denials under this provision, the applicant:

"…did not overcome the presumption of immigrant intent, required by law, by sufficiently demonstrating that you have strong ties to your home country that will compel you to leave the United States at the end of your temporary stay."

In one case, the applicant had very strong ties to his adopted country, and could prove it. However, he didn't bring sufficient evidence of these ties to his visa interview, and thus was denied re-entry. Returning a few days later with a residence permit, driver's license, employment contract, rental contract, etc., he succeeded in obtaining a visitor's visa.

Therefore, if you expatriate and want to return to the United States to visit, bring as much evidence as possible to prove you're completely bound to your new country of residence. Increasingly, other countries—especially in the European Union—are demanding similar proof of permanent ties to another country before granting visitor's visas.

Perhaps you dream of "living nowhere" as a "perpetual traveler" with no ties to any country. That strategy won't work if you need to apply for visitor's visas from most countries. It can work, at least to some extent, if you have a passport that provides visa-free entry to the countries to which you wish to travel. That way, you avoid needing to apply for a visitor's visa. For instance, if you want to travel visa-free to the United States, then you should get a passport from one of the countries on this list. Unfortunately, none of these passports are easy to acquire.

The bottom line is that if you expatriate from the United States,  be mentally prepared never to return. Current policy merely makes it difficult to qualify for a visitor's visa, but legislation now before Congress may place you in permanent exile.

Copyright © 2012 by Mark Nestmann

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About The Author

Since 1990, Mark Nestmann has helped thousands of clients seeking wealth preservation and international tax planning solutions. He is the author of highly acclaimed Lifeboat Strategy and other books & reports dealing with these subjects.

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