# My child is FORCED to become a US citizen?



## sookoon (Sep 15, 2015)

Hi Everyone! We have a baby who was born abroad (not born in the US) last year. She is daughter of a US father, and Brazilian mother. She has a passport of the country of her birth.

I was told a couple of days ago, that she is required to have a US passport, and that she is automatically a US citizen. We specifically don't want her to be a US citizen, or to have a US passport (all debates as to "why" aside, that is subject for another forum post). 

What are my options and avenues? 

I read in the State Department information, quoted in an interesting WSJ article, that says,

“A person born abroad to a U.S. citizen parent or parents will acquire U.S. citizenship at birth, AS LONG AS the statutory requirements of the Immigration and Nationality Act for transmission of U.S. citizenship are met, and regardless of whether the person is ever documented as a U.S. citizen (by obtaining a Consular Report of Birth Abroad of a U.S. Citizen, a U.S. passport, and/or a Certificate of Citizenship).”​
Also, in the US Constitution, it says, 

The 14th Amendment to the U.S. Constitution states (in Section 1): All persons born or naturalized in the Untied States, and subject to the jurisdiction thereof, are citizens of the United States;​
The operative words for me, are "subject to the jurisdiction thereof", which create debate about the meaning.

WSJ Article (Link not allowed) title:
When American Expats Don’t Want Their Kids to Have U.S. Citizenship

Please tell me about your real-world experience and examples of how you dealt with this.

Again, so that we don't cloud this post with shouting matches, let's set all debates as to "why" aside, and make that the subject for another forum post.

Thank you everyone!


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## BBCWatcher (Dec 28, 2012)

sookoon said:


> I was told a couple of days ago, that she is required to have a US passport, and that she is automatically a US citizen.


She is not required to have a U.S. passport unless she enters or exits the United States. She is indeed legally a U.S. citizen.



> We specifically don't want her to be a US citizen....


That's not an option. She is a U.S. citizen from birth, and there's nothing whatsoever you can do to change that. Only she can change that when she is age 18, and only if she independently wants to do so.

The only choice you have is whether you document the legal fact of her citizenship or not. Being an undocumented U.S. citizen is not fun, in short, in my view. Being undocumented means it's hard to take advantage of the privileges of that citizenship, but you still have at least some of the disadvantages. For example, if she were to visit the United States -- illegally if she did so without a U.S. passport -- and get into trouble with the law (or the law with her), she would not be able to receive any consular assistance from her other government.



> The operative words for me, are "subject to the jurisdiction thereof", which create debate about the meaning.


The Fourteenth Amendment is not particularly relevant here. Another part of the U.S. Constitution gives Congress the right to enact legislation determining who and who is not a U.S. citizen, subject to the minimum requirements in the Fourteenth Amendment. The Supreme Court has further held that Congress cannot strip citizenship from citizens once declared. (There's another part of the Constitution that assures that protection.) Congress has established a law that makes your daughter a U.S. citizen from birth, and thus she is, and with no controversy as to Congress's legal right to do so.

Your daughter is a U.S. citizen, and there is nothing whatsoever you can do to change that fact. Her birth and your parentage determined that.


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## nyclon (Apr 3, 2011)

Your child is a US citizen. You have no control over that. If you want to visit the U.S. your child must enter on a U.S. passport.


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## Bevdeforges (Nov 16, 2007)

Basically, your child is a US citizen. That you can't change.

The potential problems arise if you were to visit the US as a family, because an alert Immigration agent might question the fact of a child traveling on a non-US passport with a parent who has one. If said child is traveling on his or her own (say, later, as an adult) it probably won't be noticed because their passport wouldn't have a US place of birth.

The other potential problem could be if the child decides to go to the US on their own (without claiming their US citizenship) because the documents required for a visa would probably uncover the child's US citizenship. (Or maybe not - depends on the format for the birth certificate in use where you are.)

The one potential "gotcha" is if the child himself decides to claim their citizenship as an adult. Getting a US Social Security number as an adult can be quite a hassle, involving personal appearances, etc. It's certainly do-able, just a long drawn-out process.
Cheers,
Bev


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## BBCWatcher (Dec 28, 2012)

It happens to be illegal for a U.S. citizen to enter the United States on a foreign passport -- and even an international flight connection includes entering the United States. I know you're not suggesting or recommending that the child/parent break the law, but I'd like to just make sure we're clear on that point.


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## sookoon (Sep 15, 2015)

Here's info I got from a pretty well respected emigration advisor in Chile (note: not an immigration adviser):

As I read it, your child is NOT automatically a U.S. citizen; or, at least there is more exactly, your child does have a right to REQUEST U.S. citizenship but is not obligated to request U.S. citizenship.

that is, if the child is able to comply with all the other requirements involved (e.g. your own physical residency in the U.S. seems to be important requirement).

In any case, even if your child is a U.S. citizen, they have the absolute right to renounce as soon as they are an adult (just make sure they apply for bunch of student loans first, and before registering for the draft).

If you are really worried about it, don't go register the birth at the U.S. embassy. It is that simple. When your kid is 18, 30, 40, perhaps they will suddenly feel an urge to get a U.S. passport, and they can go register their birth with the U.S consulate.


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## twostep (Apr 3, 2008)

sookoon said:


> Here's info I got from a pretty well respected emigration advisor in Chile (note: not an immigration adviser):
> 
> As I read it, your child is NOT automatically a U.S. citizen; or, at least there is more exactly, your child does have a right to REQUEST U.S. citizenship but is not obligated to request U.S. citizenship.
> 
> ...


Hopefully this was a pro bono consultation You know how to use Google? Have you tried USA and draft? It never hurts to check behind so called legal advise.

The decision is not your's but your child's once it is of age. Your US residence does not matter. The U.S. parent's does.

There is more then one case of heartbreak floating around forums where parents neglected to file birth abroad and children have a hard time to bring by the required documents.

Whatever the problem is you and your US spouse have with your daughter's citizenship. You cannot take it away from her. She has to give it away.


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## accbgb (Sep 23, 2009)

BBCWATCHER, if you would please comment on this:

I agree that the child is a US citizen, regardless of any moves made or not made by her parents at this time. The child was fathered by a US citizen and, presuming that the father's name is on her birth certificate, then there is no doubt concerning her citizenship.

My question: the US taxes the worldwide income of all US citizens. That being the case, is it true that this child will eventually be required by law to file US federal tax returns and failure to do so will more than likely catch up with her at some point in the future, possibly resulting in a huge unpaid tax liability + penalties?


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## twostep (Apr 3, 2008)

accbgb said:


> BBCWATCHER, if you would please comment on this:
> 
> I agree that the child is a US citizen, regardless of any moves made or not made by her parents at this time. The child was fathered by a US citizen and, presuming that the father's name is on her birth certificate, then there is no doubt concerning her citizenship.
> 
> My question: the US taxes the worldwide income of all US citizens. That being the case, is it true that this child will eventually be required by law to file US federal tax returns and failure to do so will more than likely catch up with her at some point in the future, possibly resulting in a huge unpaid tax liability + penalties?


A) It will probably take a while for the child to be at the point of taxable income unless there are unforeseen circumstances and considerable funds involved.

B) Who knows what tax laws will be in 15-20 years world wide.

C) Unless their income is outside specific perimeters US citizens are required to file income taxes. I have not come across a documented case of double taxation on the U.S. side yet.


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## accbgb (Sep 23, 2009)

twostep said:


> ...
> C) Unless their income is outside specific perimeters US citizens are required to file income taxes. I have not come across a documented case of double taxation on the U.S. side yet.


Regardless of actual tax liability, there are penalties for failing to file returns. Yes?

And, as to double-taxation, wouldn't that be somewhat dependent upon whether the US has a tax treaty with the country of residence and, if so, the particulars of that treaty?


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## twostep (Apr 3, 2008)

accbgb said:


> Regardless of actual tax liability, there are penalties for failing to file returns. Yes?
> 
> And, as to double-taxation, wouldn't that be somewhat dependent upon whether the US has a tax treaty with the country of residence and, if so, the particulars of that treaty?


There are income levels which do not require filing of income tax. You can read about these on a regular basis here when it comes to sponsor ship for a spouse.

Google will give you details about every current tax treaty between the USA and whatever country you need information for.

None of this has any bearing on OP's child.


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## accbgb (Sep 23, 2009)

twostep said:


> ...
> 
> None of this has any bearing on OP's child.


Why? Sooner or later the "child" will be old enough to have an income. Then, if she chooses at some point to claim her US citizenship rights (or otherwise comes to the attention of US tax authorities), outstanding tax US liabilities will rise to the surface. Won't they?


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## Bevdeforges (Nov 16, 2007)

accbgb said:


> My question: the US taxes the worldwide income of all US citizens. That being the case, is it true that this child will eventually be required by law to file US federal tax returns and failure to do so will more than likely catch up with her at some point in the future, possibly resulting in a huge unpaid tax liability + penalties?


I'd respond a bit differently than what you've gotten so far.

A big "maybe." Officially, yes, as a US citizen (assuming the US father spent the requisite time in the US over the age of 14 and prior to the birth of the child in question) the child is required by law to file US federal tax returns for any year in which the child's worldwide income exceeds the filing threshold for said child's filing status. (I.e. single, married filing jointly or separately, head of household, whatever else there is)

However, your assumption about "failure to do so will more than likely catch up with her" is a huge one. If the child is not registered with the consulate at birth and has no US social security number, there is not too much likelihood that the failure to file will ever be noticed unless the child somehow calls attention to or acknowledges her own US citizenship. Case in point is probably Boris Johnson - nobody ever thought about his being a citizen until he got big publicity about selling his house for some huge amount which would actually generate some taxes due to the US.

And so far at least, the "penalties" for failure to file usually amount to interest on the back taxes due - as long as the failure to file can be justified as "not willful." There are actually thousands of folks out there who either don't realize they are US citizens, or who don't realize they are supposed to be filing US taxes as US citizens. So far there has been no big movement toward hunting these folks down and punishing them for their ignorance. (Probably more than enough willful tax evaders resident in the US to track down first. And still they continue to cut the IRS' budget.)
Cheers,
Bev


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## BBCWatcher (Dec 28, 2012)

The questions you're asking about tax obligations are not germane. The citizenship exists, now, and the child cannot terminate her U.S. citizenship until she reaches age 18, and then only if she alone chooses.

But since you asked, I'll answer your non-germane questions. 

Children do not generally have U.S. tax or financial reporting requirements. As I'm fond of saying, I've never met an infant who was born into the 25% tax bracket.  Children don't generally work in factories or offices, trade stocks and bonds, or otherwise receive much income or hold many assets. They are children, after all. (Maybe if mommy or daddy is on her/his computer trying to buy 100 shares of stock the child can reach over and bang on one of the keys, turning that 100 shares into 1000. But that's an unintentional accident. ) There are some _rare_ exceptions. Justin Bieber, for example, earned quite a substantial amount of income before his 18th birthday -- perhaps more than he will earn in most of his adult years.

All U.S. citizens and U.S. residents are _obliged_ to file U.S. tax returns if they meet the filing threshold. Children can babysit, deliver newspapers, or whatever and they're just not going to meet the filing threshold that way. (Unless we're talking a HUGE number of newspapers, and last I checked the newspaper business isn't doing so well.) However, if the amount of U.S. tax owed is genuinely zero -- and for an estimated 94% of U.S. citizens living overseas that's true (and _particularly_ for children) -- then the penalty for failure to file a tax return is also zero, there is no penalty. Moreover, children who are not legally emancipated (i.e. the vast majority of children) cannot be held legally responsible like adults even if they're among the 6% who do owe some U.S. tax. Of course their parents can be held responsible.

The U.S. also requires all U.S. citizens and U.S. residents to file a financial report if they hold non-U.S. financial assets worth US$10,000 or more. That's called FinCEN Form 114. Most children do not hold such assets truly in their names -- indeed, they cannot in most jurisdictions because they are children. (Think of U.S. UGMA accounts, for example, and their foreign counterparts.) The parents again bear ultimate legal responsibility. Same thing with foreign trust reports if required to file (IRS Forms 3520 and/or 3520-A) -- not something the vast majority of children would ever run into, and to the rare extent they do it'd be the parents' ultimate responsibility.

In the incredibly rare cases when a child turns 18 and assumes full legal responsibility for his/her own tax and financial affairs and who has high income and/or high wealth, many such young adults decide that the privileges and rights associated with their U.S. citizenships -- unfettered, complete access to Hollywood and Silicon Valley, as examples, to increase their incomes and wealth -- are valuable. Others may decide otherwise. But _they_ decide, not their crazy American mothers and fathers.


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## MarylandNed (May 11, 2010)

Bevdeforges said:


> Basically, your child is a US citizen. That you can't change.
> 
> The potential problems arise if you were to visit the US as a family, because an alert Immigration agent might question the fact of a child traveling on a non-US passport with a parent who has one. If said child is traveling on his or her own (say, later, as an adult) it probably won't be noticed because their passport wouldn't have a US place of birth.
> 
> ...


Similar clarification that I made on another thread. The child wouldn't be "claiming their US citizenship". The child already is a USC (assuming the father can pass on US citizenship to his child born abroad). The child would simply be applying for proof of his/her existing US citizenship. Whether or not the child applies for proof of US citizenship, is irrelevant to his/her status as a USC.


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## MarylandNed (May 11, 2010)

sookoon said:


> Also, in the US Constitution, it says,
> 
> The 14th Amendment to the U.S. Constitution states (in Section 1): All persons born or naturalized in the Untied States, and subject to the jurisdiction thereof, are citizens of the United States;​
> The operative words for me, are "subject to the jurisdiction thereof", which create debate about the meaning.


This doesn't apply as your child wasn't born in the US. What this means is that children of foreign diplomats do not become USCs by being born in the US. This is because foreign diplomats and their families have diplomatic immunity and are not "subject to the jurisdiction" of the US. Sounds good in theory. In practice, the US authorities don't track or enforce this because Congress has failed to provide guidance on how to do so. So these children are often able to obtain regular US birth certs, SSNs, and US passports. But, again, not relevant to you anyway.

What is relevant to you and your child is this. Assuming your husband is eligible to pass on US citizenship to his foreign-born children, then your child is a USC by descent and is "subject to the jurisdiction" of the US. There is no debate.


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## twostep (Apr 3, 2008)

This is a forum for those who are or want to immigrate to the U.S. to exchange information.


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## accbgb (Sep 23, 2009)

BBCWatcher said:


> The questions you're asking about tax obligations are not germane. The citizenship exists, now, and the child cannot terminate her U.S. citizenship until she reaches age 18, and then only if she alone chooses.
> 
> But since you asked, I'll answer your non-germane questions.
> 
> ...


I think you missed the point I was trying to make.

The child _IS_ a US Citizen; we are all agreed on that point.

At some point that child will grow into an adult. Given her mother's apparent refusal to accept the child's US citizenship status, it seems entirely possible that the now-adult child may have no idea of her actual status or her responsibilities as a US citizen. By not dealing with this subject in a rational manner, the mother is setting the child up for potential difficulties down the road - not least, difficulties with the IRS.

That is what I was driving at.


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## BBCWatcher (Dec 28, 2012)

I do not recommend that parents fail to disclose actual and potential obligations, liabilities, risks, and (most importantly) _opportunities_ that their children may have, if that's what you mean. Most of those obligations, liabilities, risks, and opportunities have nothing whatsoever to do with citizenship status, though citizenship status(es) is(are) on the list.

Disclosure should be age-appropriate and utterly factual and neutral, preferably. Telling a child that the U.S. government (or the Swiss government, to pick another random example) is trying to "indoctrinate" her is not a good start. Though maybe Nestle is cleverly indoctrinating her with their Swiss chocolate. (Those damn Swiss. )

As an aside, it seems very odd to me that a parent would legally maintain his/her own citizenship then get upset when his/her child enjoys the same citizenship from birth. If it's "bad" enough for your child, why is it not something you yourself terminated, as all adult Americans (in possession of another citizenship) have the right to do? I can't square that discrepancy, and it seems most unfair to the child to try (in vain, in this case) to maintain such a discrepancy.

Note that there are some countries that make it legally impossible or effectively impossible even for their adult citizens to terminate their citizenships. The United States is not one of those countries, fortunately.


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## Bevdeforges (Nov 16, 2007)

BBCWatcher said:


> Note that there are some countries that make it legally impossible or effectively impossible even for their adult citizens to terminate their citizenships. The United States is not one of those countries, fortunately.


As with many things in the US, all it takes is money - lots of it. For some folks here, $2350 is definitely a budget buster.
Cheers,
Bev


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## twostep (Apr 3, 2008)

Bevdeforges said:


> As with many things in the US, all it takes is money - lots of it. For some folks here, $2350 is definitely a budget buster.
> Cheers,
> Bev


It takes a lot more effort and often money to get US citizenship and a lot more folks are trying to get it compared to those trying to get rid of it.

Whatever OP's issues are - I hope her decisions will not come to haunt her in the future.


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## MarylandNed (May 11, 2010)

twostep said:


> It takes a lot more effort and often money to get US citizenship and a lot more folks are trying to get it compared to those trying to get rid of it.
> 
> Whatever OP's issues are - I hope her decisions will not come to haunt her in the future.


Yes, although let's not forget that only the child can renounce his/her US citizenship and only when old enough to do so.


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