An accidental American is someone whom U.S. law deems to be an American citizen, but who has only a tenuous connection with that country. For example, American nationality law provides (with limited exceptions) that anyone born on U.S. territory is a U.S. citizen (jus soli), including those who leave as infants or young children, even if neither parent is a U.S. citizen (as in the case of Boris Johnson until he renounced his U.S. citizenship in 2016). U.S. law also ascribes American citizenship to some children born abroad to a U.S. citizen parent (jus sanguinis), even if those children never enter the United States.
Since the early 2000s, the term "accidental American" has been adopted by several activist groups to protest tax treaties and Inter-Governmental Agreements which treat such people as American citizens who are therefore potentially subject to tax and financial reporting (e.g. FATCA and FBAR) requirements – requirements which few other countries impose on their nonresident citizens. Accidental Americans may be unaware of these requirements, or their U.S. citizen status, until they encounter problems accessing bank services in their home countries, for example, or are barred from entering the U.S. on a non-U.S. passport. Furthermore, the U.S. State Department now charges US$450 to renounce citizenship (or otherwise obtain a Certificate of Loss of Nationality), while tax reporting requirements associated with legal expatriation may pose additional financial burdens.
Nationality law
U.S. nationality law provides for both jus soli and jus sanguinis (see ), as well as derivative citizenship upon the naturalization of a parent ().
Birth or parental naturalization in the United States Children born in the United States are U.S. citizens, regardless of their parents' citizenship or immigration status or whether the family lives in the United States after the child is born; the only exception recognized under current law is for children born to foreign diplomats. Many babies who grew up in towns along the Canada–United States border were born in a hospital on the opposite side of the border and thus acquired the citizenship of the other country this way. Also, when an immigrant to the U.S. becomes a naturalized citizen, under the Child Citizenship Act of 2000, the immigrant's minor children become U.S. citizens along with their parent as long as they are living in the U.S. as lawful permanent residents at the time of the parent's naturalization or later enter the U.S. under LPR status in their minority.
In each of these cases, the child becomes a U.S. citizen automatically, without any choice in the matter. Mumbai tax lawyer Poorvi Chothani stated that many Indians living in the U.S. on work visas "eagerly obtain U.S. citizenship" for their children but "do not even examine the long-term implications of this", and that she even has a client who is suing his own father for the reason of such an unwanted U.S. citizenship.
Birth abroad and role of registration U.S. law also states that a child born outside of the United States to a U.S. citizen parent who previously spent sufficient time in the U.S. is a U.S. citizen at birth, regardless of whether the child also has the citizenship of the country of birth or another citizenship. U.S. citizens married to fellow U.S. citizens can transmit U.S. citizenship to their children if either parent has ever had a residence in the United States (without any minimum time limitation on how long they held that residence.) However, for U.S. citizens married to non-U.S. citizens, the required period of residence is longer; under the Nationality Act of 1940 and the Immigration and Nationality Act of 1952, the required period of residence was set to ten years, five of which had to be after the age of 14. The Immigration and Nationality Act Amendments of 1986 reduced this to five years, two of which had to be after the age of 14.
This makes it possible in some cases for "accidental American" status to be passed down over multiple generations, for example if an accidental American spends sufficient time in the U.S. to meet the physical presence requirements to pass down their U.S. citizenship to their own children born outside of the United States. Previously, this had been most likely to occur in the case of the child of an unmarried U.S. citizen mother and non-American father. Under , only one year of continuous physical presence in the United States is required for an unmarried mother to pass down citizenship to children born abroad. However, in 2017 the Supreme Court struck down the distinction between unmarried mothers and unmarried fathers as a violation of the Equal Protection Clause (resolving an earlier split between the Second and Ninth Circuits), holding instead that all American parents married to non-Americans should be required to meet the same longer five-year standard of residence to pass citizenship to their children.
Under a strict reading of U.S. nationality law, consular registration is not required in order for a child born outside of the U.S. to a qualifying parent to "become" a U.S. citizen; the child is a U.S. citizen from the moment of birth. However, for practical reasons, if a child's birth is not reported to a U.S. consulate or United States Citizenship and Immigration Services, the child would not have any proof of U.S. citizenship and the U.S. government might remain unaware of the child's citizenship status. Retired U.S. State Department official Andrew Grossman wrote in 2007 that in cases of "doubtful nationality" in which a child's derivative U.S. citizenship remained undocumented and unreported to the U.S. government, the child was not regarded as a U.S. citizen either for tax or other purposes, and he expected that it would be quite difficult for tax authorities to make determinations of jus sanguinis citizenship on their own.
Karen Christensen, also of the U.S. State Department (Deputy Assistant Secretary for Overseas Citizens Services, Bureau of Consular Affairs), stated that "it is the process of being documented as a U.S. citizen that would result in official government recognition of the child’s U.S. citizenship status". This ambiguity has resulted in American emigrant parents, particularly those married to people of other nationalities, choosing not to report the births of their children born in other countries to U.S. consulates, in the hopes that this would allow the children to escape notice by the U.S. government. Mark Matthews of Caplin & Drysdale stated, "When clients who have lived abroad for years come in, concerned about whether they have an obligation under FATCA, they sometimes react to the suggestion that their kids might be American the way one might react to a horrible medical diagnosis."
Retroactive restoration of citizenship Retroactive restoration of U.S. citizenship previously lost might occur when a statute regarding loss of U.S. citizenship is declared unconstitutional. The issue ultimately arises from the fact that obtaining a Certificate of Loss of Nationality (CLN) has never been necessary under U.S. nationality law to trigger loss of citizenship, but is merely a document which confirms the loss of citizenship caused by an earlier act. In earlier years, an unknown number of people who lost U.S. citizenship according to contemporary law simply ceased to exercise the benefits of U.S. citizenship (for example, no longer voting, letting their U.S. passport expire) and began identifying themselves to the U.S. government as foreigners (for example, by using foreign passports to enter the United States) without obtaining a CLN. Additionally, the U.S. government has asserted that even a person who has been issued a CLN, but under a provision of law later found unconstitutional, remains a U.S. citizen all along. In 1998, the State Department estimated that there were several thousand individuals of this latter type, who had never contacted the U.S. government seeking to have their CLNs vacated.
One early case causing retroactive restoration of citizenship was Schneider v. Rusk (1964). In that case, the Supreme Court considered , which provided for loss of U.S. citizenship by a naturalized citizen taking up residence in a country of which they had previously been a citizen. The Court found that the statute unconstitutionally discriminated between native-born and naturalized citizens. This ruling protected plaintiff-appellee Angelika Schneider from unwanted loss of her U.S. citizenship, against which she had protested by taking her case to the Supreme Court. However, in the aftermath the U.S. government took the position that all persons who had lost U.S. citizenship under Section 1482 should be treated as never having lost citizenship, regardless of whether they made a subsequent claim to the benefits of U.S. citizenship, were ignorant of their restored citizenship, or were even unwilling to have it restored.
A more complicated situation arose from Vance v. Terrazas (1980). In that case, the Supreme Court considered , providing that U.S. citizens could expatriate themselves by performing certain acts involving citizenship or allegiance to a foreign country, including swearing an oath of allegiance to a foreign country. The State Department at the time argued that those acts themselves constituted evidence of intent to give up citizenship, but the Court disagreed and required that the intent be proven by the party asserting the loss of citizenship through the preponderance of the evidence, encompassing not only the act itself but the individual's other statements and conduct. Again, this ruling protected the individual involved, who asserted his citizenship against State Department efforts to demonstrate that he had relinquished it. However, this effectively imposed a new requirement on other people, without notification to them and without regard to whether they preferred to be U.S. citizens: before they only had to commit the act to relinquish U.S. citizenship, but afterwards if they sought to obtain a CLN, they had the affirmative burden of proving intent contemporary with the act, otherwise the U.S. government would deem them to have been U.S. citizens all along.
The issue of retroactive restoration of citizenship interacts with birth abroad as mentioned above, in that children born during a period in which the parent believed themself not to be a U.S. citizen might themselves be regarded as citizens at birth due to a retroactive restoration of the parent's citizenship to the year in which the child was born.
Awareness of U.S. citizenship
Accidental Americans may become aware in various ways that the United States considers them to be its citizens.
First, accidental Americans born in the United States may encounter difficulties when attempting to enter the U.S. on a non-U.S. passport, as U.S. law () requires all U.S. citizens to use U.S. passports when entering the country. An airline employee who notes the U.S. place of birth in the passport might refuse to allow the person to board a flight. Famously, former Prime Minister of the United Kingdom, Boris Johnson was denied boarding on a flight which transited the U.S. in 2006, after which he first claimed that he wanted to renounce his U.S. citizenship, but instead applied for a U.S. passport some years later. In the past, Canadians were unlikely to encounter such difficulties, because passports were not required to cross the Canada–United States border, but in the aftermath of the September 11, 2001 attacks, the Western Hemisphere Travel Initiative tightened documentary requirements for entering the United States by land or by sea, and so Canadians crossing into the United States had to show proof of Canadian citizenship; if they used a Canadian passport as such proof, it would indicate their place of birth.