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Impact Of Dual Citizenship For Persons Of Indian Origin In The U.S.

by Cyrus D. Mehta

On December 22, 2003, legislation was passed by the Indian Parliament to grant dual citizenship (a.k.a. Overseas Citizenship) to persons of Indian origin who are citizens of certain countries. The legislation will also grant Overseas Citizenship to Indian citizens who may take up the citizenship of these countries in the future. At present, this benefit is being extended to persons of Indian origin of the following 16 specified countries: Australia, Canada, Finland, France, Greece, Ireland, Israel, Italy, Netherlands, New Zealand, Portugal, Republic of Cyprus, Sweden, Switzerland, United Kingdom, and United States of America.

Eligibility

The Central Government of India, on application, may register any person as an Overseas Citizen of Indian origin if:

a. the person is of Indian origin of full age and capacity who is a citizen of a specified country; or

b. the person is of full age and capacity who has obtained the citizenship of a specified country on or after the commencement of Citizenship (Amendment) Act 2003 and who was a citizen of Indian immediately before such commencement.

The second prong renders ineligible a person of Indian origin who is neither a citizen of India nor a citizen of a specified country as of December 22, 2003. Thus, a person who was a citizen of Austria (not a specified country) until December 22, 2003, and thereafter becomes a citizen of the US (a specified country), will not be able to apply for Overseas Citizenship.

Finally, no person who has been deprived of his or her Indian citizenship shall be registered as an Overseas Citizen, except by an order of the Central Government.

Who Is A Person Of Indian Origin?

The expression “person of Indian origin” shall mean a citizen of another country who:

  • was eligible to become a citizen of India at the time of the commencement of the Constitution;


  • belonged to a territory that became part of India after the 15th day of August, 1947; and


  • the children and grand-children of a person covered under the first two clauses above, but does not include a person who is or had been at any time a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify.
Procedure

At present, the Indian government has not yet established procedures or a prescribed form for application for becoming an Overseas Citizen of India. Applications may be made in India to the Collector within whose jurisdiction the applicant is ordinarily resident for transmission to the Central Government through the State Government or Union Territory Administration.

The applicant living overseas may make the application to the Indian Consulate or the Indian Embassy, which has jurisdiction over the country of which an applicant is a citizen. This application will then be transmitted to the Central Government in India.

The processing fee for an application for dual citizenship is proposed to be fixed at US $100. Further information will be published on the Ministry of Home Affairs website at http://mha.nic.in

Benefits And Privileges

An Overseas Citizen will be issued a registration certificate granting him or her such a citizenship. More important, the person will be granted an Overseas Citizen passport. Both the documents will need to be produced when traveling to India. There will be no requirement for a visa for travel to India as well as no registration formalities for staying in the country.

The following additional benefits shall also be provided:

  • no separate documentation required for admission in colleges/institutions or for taking employment;


  • parity with non-resident Indians with respect to facilities available to the latter in the economic, financial and educational field.


  • facilities as available to children of non-resident Indians for obtaining admission to educational institutions in India, including medical colleges, engineering colleges, institute of technology, institute of management etc. under the general category; and


  • facilities under the various housing schemes of the Life Insurance Corporation, state governments and other governmental agencies.
Note that the overseas citizen may not be able take up public employment, or be able to vote in Indian elections.

US Dual Nationality Policy

Some persons of Indian origin in the US have expressed concern about being dual nationals, and whether such a status would interfere with their US citizenship status. The rest of the article will examine this issue.

The concept of dual nationality means being a citizen of two countries at the same time. Each country establishes its own citizenship laws for the person holding dual nationality. The US government acknowledges that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national US citizens may conflict with US law, and dual nationality may limit US Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person’s allegiance.

Furthermore, dual nationals may owe allegiance to both the US and the foreign country. Either country has the right to enforce its laws governing taxation or military service, particularly if the person travels there. Most US citizens, including dual nationals, must use a US passport to enter and leave the US. Dual nationals may also be required by the foreign country to use its passport to enter and leave the foreign country. Use of a foreign passport does not endanger US citizenship.

Loss Of US Citizenship

Section 349 of the Immigration and Nationality Act (8 USC § 1481) specifies several conditions under which a US citizenship may be lost. These include:

  • becoming a naturalized citizen of another country, or declaring allegiance to another country, after reaching age 18;


  • serving as an officer in a foreign country’s military service, or serving in the armed forces of a country which is engaged in hostilities against the US;


  • working for a foreign government (e.g., in political office or as a civil servant);


  • formally renouncing one’s US citizenship before duly authorized US officials; or


  • committing treason against, or attempting or conspiring to overthrow the government of the US.
The primary effect of recent developments in the US regarding dual citizenship has been to add the requirement that loss of citizenship can only result when the person in question intended to give up his citizenship. At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship. However, the Supreme Court overturned this concept in Afroyim v. Rusk, 387 U.S. 253 (1967) and Vance v. Terrazas, 444 U.S. 252 (1980). Congress amended Section 349 in 1986 to require that loss of citizenship would result only when a potentially “expatriating” (citizenship-losing) action was performed voluntarily and “with the intention of relinquishing US nationality.”

Example: Afroyim was a naturalized US citizen originally from Poland who moved to Israel in 1950. He tried to renew his US passport in 1960, but the State Department refused on the grounds that he had lost his citizenship by voting in an Israeli election in 1951. Afroyim sued the State Department, and the Supreme Court ruled (5-4) that he was still a US citizen. The Supreme Court held that Congress had no right to pass a law which had the effect of depriving an American of his citizenship without his assent.

Example: Terrazas was a dual US/Mexican citizen by birth (born in the US to a Mexican father). While a university student in Mexico, he signed a document reaffirming his Mexican citizenship. This document contained a section, required by Mexican law, by which Terrazas explicitly renounced his US citizenship. Although the Supreme Court disagreed with Terrazas’ contention that he had not really meant to renounce his US citizenship, despite what was on the Mexican document he had signed, the Court upheld the principle that Congress could not designate an action as automatically resulting in loss of citizenship. According to the Supreme Court, even if such action were voluntarily performed, it would still be necessary to show that the individual did so with the intent of giving up his citizenship.

On April 16, 1990, the State Department adopted a new policy on dual citizenship, under which US citizens who perform a potentially expatriating act are normally presumed not to have done so with intent to give up US citizenship. Thus, the overwhelming majority of loss-of-citizenship cases nowadays will involve people who have explicitly indicated to US consular officials that they want to give up their US citizenship.

Oath Of Allegiance

US naturalization laws have always required an oath of allegiance as a prerequisite to naturalization. A person taking the oath states, in part: “I hereby declare, on oath, that I absolutely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen…..” One who takes the oath of allegiance is precluded from retaining dual allegiance. However, the prohibition against dual allegiance does not preclude dual citizenship. There may be situations where the oath may have been taken in bad faith, and thus may subject the naturalization to revocation.

Take for example an Indian citizen who becomes a naturalized citizen of the US after taking the oath renouncing and swearing of allegiance to any other country. Under Indian law, the acquisition of US citizenship automatically voids Indian citizenship. This person immediately after naturalization applies for Overseas Citizenship. Would this application for Overseas Citizenship indicate that the person took the oath of allegiance to the US in bad faith?

Impact Of Overseas Indian Citizenship On US Citizenship

The acquisition of Overseas Citizenship to persons of Indian origin in the US should not jeopardize their existing US citizenship. It does not appear that applicants will have to take an oath of allegiance to India or even require them to renounce US nationality. The acquisition of Overseas Citizenship will not permit the dual national to vote in an Indian election or become a member of the Indian Parliament. Even the Indian government, in its announcements regarding dual citizenship in 2003, specifically indicated that persons seeking Overseas Citizenship should still continue to remain loyal to the countries where they are already citizens.

The most problematic situation would involve a foreign naturalization accompanied by an oath of renunciation of US citizenship. Australia, Brazil, Mexico and the Philippines have required such oaths. The closest parallel to the new Indian citizenship law is the Israeli “Right to Return,” where applications for recognition merely confirms a nationality already acquired. The “Right to Return” law has never been problematic with regards to a person’s US citizenship status.

It can also be argued that Overseas Citizenship does not give an Indian the same rights as full Indian citizenship, and the former only accords better travel and residency privileges. Indeed, the benefits of Overseas Citizenship are substantially similar to the benefits given to Persons of Indian Origin card holders, which is similar to lawful permanent resident status (a.k.a. Green Card) in the US.

Moreover, US policy in recent times has shifted away from stripping people of US citizenship, unless one explicitly informs a US consul that he or she wants to give up US citizenship.


About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is First Vice Chair of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or info@cyrusmehta.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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