IT Professionals Association of America, Inc - Dual Citizenship granted to all US naturalized Indian-Americans

Last December the Indian Parliament passed legislation to grant dual citizenship (aka overseas citizenship) to persons of Indian origin who are citizens of certain countries. The law will also grant overseas citizenship to Indian citizens who may take up the citizenship of these countries in future.

I have a REAL problem with the entire idea of dual citizenship granted to all naturalized Indians residing in their new country of choice. All naturalized citizens take the Oath of Allegiance to the US. It is supposed to be a heartfelt committed moment, one that binds the new citizen with the US.

This isn't an individual with dual citizenship, based on birth, which is then declared when reaching the age of majority (18).

This is sworn by a person who reached this country through whatever means with a genuine and heartfelt desire to be here and stay here, to participate in being American, to support his/her new country. While all would proclaim that it is "to find a better life for myself and children," this could have various interpretations and inclusions. "A better life" is in the heart and mind of the individual and is like a snowflake. . .each one distinct and unique.

Naturalization Oath of Allegiance
to the United States of America

"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, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

However, would you suppose that anyone taking that oath would deem a better life as "become fabulously wealthy at the expense of US so that I can show pride and solidarity with my homeland."? or, "now, I can freely move back and forth between India and the US to help develop BPO"?

The current MO for many has been: education w/Student Visa, to return with H1-B visa (or the more recent L-1 visa), to gain green card, to gain citizenship. Now, it can include that one doesn't have to give anything up in a quest for fulfillment of selfish desires. I didn't know that one could offshore either patriotism or citizenship.

There is a much bigger organized network of educated Indians who are truly trying to become globalized. Go anywhere, gain citizenship, and still be "truly" Indian. One might term it a conspiracy; one might term it "highly expedient; or one might term it "using the system."

And, it might also be viewed from the perspective of wanting to honor and "own" one's native children who have ventured elsewhere and achieved success, which brings acclaim for all Indians everywhere. And, I am sure that this is at least part of the intent.

However, in a time fraught with political and civilian backlash, in a time where Indian after Indian has come out in favor of offshore outsourcing (and no detractors), and in a time when it is easy to raise the spectre of racism, it's not going to "play in Peoria."

Dual citizenship: the benefits and the drawbacks CYRUS D MEHTA & POORVI CHOTHANI
SUNDAY, FEBRUARY 22, 2004 11:38:08 PM
Last December the Indian Parliament passed a legislation to grant dual citizenship (aka overseas citizenship) to persons of Indian origin who are citizens of certain countries. The law will also grant overseas citizenship to Indian citizens who may take up the citizenship of these countries in 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.

. . .The person will be granted an overseas citizen passport. Both the documents will need to be produced when travelling to India. There will be no requirement for a visa to travel to India and 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.

However, the overseas citizen will not be able take up public employment, or 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 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 US Immigration and Nationality Act 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’.

Afroyim was a naturalised 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 that had the effect of depriving an American of his citizenship without his assent.

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 naturalisation 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 voluntary acquisition of citizenship of another country 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 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 an application 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. Overseas citizens will not have the right to equal opportunities in matters of public employment, nor rights to vote or stand for public office. Indeed, the benefits of overseas citizenship are substantially similar to the benefits given to Persons of Indian Origin cardholders, 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.

(Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555 or info@cyrusmehta.com.

Poorvi Chothani is the correspondent attorney in Mumbai, India for Cyrus D. Mehta and Associates, P.L.L.C. She has graduated with an LL.M. degree from the University of Pennsylvania Law School, and is admitted to practice law in to the State of New York. She may be contacted in Mumbai at (22)-2218-1372 or 98209 39666.)

While this entire issue of dual citizenship has not been reported in the US, it has been widely reported on in India. And, the uniform opinion of those who support dual citizenship includes sentiments such as those expressed by P. M. KAMATH in the Samachar Global Indian website, run by Sify, "I have been an ardent advocate of India cultivating over 20 million of PIOs and NRIs living in various countries. They can be an important lobby to advocate Indian causes in the country of their residence. They can influence the government of the nation where they live. In return the government of India is extending them many concessions like purchase of property, admissions to Indian educational institutions, investment in India and several others."

In a news release on the passage of the dual immigration law, immigration attorney, Sheela Murthy said, "Earlier this year, the Bill had already passed the Rajya Sabha (Upper House of Parliament), but was stuck in the lower house due to the Opposition Parties wanting evidence on how such PIOs could benefit India and its economic development by being granted dual citizenship."

The Times of India hardly used language that indicated a different point of view:

The Citizenship (Amendment) Bill, 2003, would "enable both Bharatvasi s and Bharatvanshi s to contribute together to the cause of India's development", Deputy Prime Minister L K Advani said while replying to a short debate on the legislation which was earlier adopted by the Upper House.

Dual citizenship, the main concern of the diaspora in developed countries, had been a long-standing demand.

The Bill, which would be a major boost to the Indian diaspora would go a long way to enable this section of people contribute to the cause of national development.

Dual citizenship was a big issue during the first NRI festival held in New Delhi in 2003 where Prime Minister Atal Bihari Vajpayee had promised to offer the right to people in selected countries.

National pride? It would appear to be a whole lot more than that. Make no mistake about it, this is an "us" vs. "them" issue. India knows that rapid development into the 21st Century for a backwards, impoverished, overpopulated country will require the expenditure of great personal effort.

They are cranking out IT and Engineering degrees like popcorn. IndiaTimes reported that "in 2002-03, the total fresh IT labour supply was 1,46,557 and it is estimated to be 1,49,593 in 2003-04, while the projections for 2004-05 are 1,53,233, and for 2005-06, it is likely to be 1,60,152." They are estimating a surplus of 48,000 degreed IT people in four years, 2008.

This entire issue is tied part and parcel to other US Immigration elements: the ability to gain green card status through the category of "Employment-based Immigration," which allows for up to 140,000 slots annually, AND with the entire H-1B and L-1 Visa programs. The language of the employment-based immigration statute is sufficiently vague as to include "managers." One of our naturalized citizens, Cyrus D. Mehta, specializes in immigration law, has published a comprehensive overview of how to apply for and gain this specialized status on his website. Since the language for applying for either employment-based immigration status is very similar to applying for the H-1B visa, those two are closely aligned.