Official and unofficial enforcement Reed Amendment (immigration)

1 official , unofficial enforcement

1.1 general issues
1.2 @ ports of entry
1.3 in visa application process

official , unofficial enforcement
general issues

the u.s. government has never issued regulations implement reed amendment. 1 issue enforcement of law attorney general never authorized obtain required information internal revenue service in order able make determination whether former american s loss of citizenship motivated tax reasons. restriction arises 26 u.s.c. § 6103.

michael g. pfeifer of caplin & drysdale states unclear whether reed amendment intended apply persons relinquishing u.s. citizenship committing expatriating act intention of losing u.s. citizenship (all acts listed in 8 u.s.c. § 1481(a), including (1) obtaining nationality in foreign country, (2) swearing allegiance foreign government, (3) serving in foreign military under conditions, or (4) working foreign government), or renounced making formal renunciation of nationality under § 1481(a)(5) or (6). mark nestmann of nestmann group states despite non-enforcement of reed amendment, advises clients avoid making formal renunciation of nationality, , instead naturalize citizen of foreign country , obtain u.s. certificate of loss of nationality on basis of having committed expatriating act under § 1481(a)(1).

at ports of entry

passport control @ john f. kennedy international airport. u.s. customs , border patrol officers decide whether former u.s. citizens arriving in u.s. inadmissible based on reed amendment. have found 2 people inadmissible in past 15 years.

according retired irs international tax counsel willard yates, former immigration , naturalization service , irs office of associate chief counsel (international) worked in effort create procedures work around 26 u.s.c. § 6103 limitation. under proposal, customs service (now customs , border protection) have been required check names of aliens appearing @ u.s. ports of entry against list of former united states citizens published irs under health insurance portability , accountability act of 1996. identified former u.s. citizens required sign waiver of rights under § 6103; customs fax waiver irs irs provide customs tax information relating former citizen, in particular whether former citizen met asset thresholds of 26 u.s.c. § 877(a)(2), , private letter ruling regarding whether or not former citizen had tax motivations giving u.s. citizenship.

however, there various practical difficulties these proposed regulations. notably, 1 irs agent have been assigned handling such requests; if former u.s. citizen arrived on weekend, or might have detained until monday in order border agents make required determination of tax motivation, no irs staff might available respond request information on weekend. additionally, irs had large workload drafting other guidance former citizens , green card holders under newly passed tax laws. furthermore, dhs later indicated if department able obtain tax information on former citizens, agents lack[ed] expertise , resources review tax filings meaningfully or engage in complicated tax liability analysis, involving both domestic , foreign tax law . in end, proposed regulations never issued.

in june 2014, reed used position on senate committee on appropriations insert language senate report on 1 version of department of homeland security appropriations act, 2015 (s. 2534) directing dhs report, within 90 days of act s passage, on steps undertaking enforce reed amendment, including schedule issuing guidance or regulations, if necessary. dhs report, submitted congress in november 2015, stated there no advisable options altering enforcement of inadmissibility ground against persons not affirmatively admit renouncing u.s. citizenship purpose of avoiding u.s. taxation . dhs considered implementing reed amendment presuming former citizen seeking entry had renounced u.s. citizenship purpose of avoiding taxation if or failed pay expatriation tax, obtained windfall shortly after renunciation, or established residence in tax haven, , placing burden of proof on individual rebut presumption; however, department concluded procedure have both many false negatives (failing identify people renounced tax avoidance reasons) many false positives (incorrectly denying entry people had other reasons renouncing u.s. citizenship).

according dhs report, 2 individuals denied admission united states on grounds of reed amendment between 2002 , 2015, while 5 individuals identified possibly inadmissible on basis not removed. joel paget of ryan, swanson & cleveland states 1 such denial (against person renounced before enactment of reed amendment) reversed after renunciant s lawyer submitted legal brief cbp.

in visa application process

the u.s. embassy in bridgetown, barbados (pictured) rejected ex-u.s. citizen businessman roger ver s application u.s. visa, states later able obtain visa u.s. embassy in tokyo. sources disagree whether reed amendment had visa rejection.

according foreign affairs manual (fam), due lack of regulations, department of state has no procedures in effect implement reed amendment. fam instructs consular officers [t]he role of department , consular officer limited in implementing ground of inadmissibility. unless applicant appears hit in lookout system revealing finding of inadmissibility under ina 212(a)(10)(e), must assume applicant eligible. finally, fam states person found inadmissible due reed amendment request waiver of inadmissibility under ina 212(d)(3)(a) obtain non-immigrant visa, no waiver available obtain immigrant visa.

since 2000, first year state department s report of visa office included relevant statistics, no consular officer has found visa applicant ineligible entry united states on grounds of reed amendment. however, charles m. bruce of moore & bruce llp states u.s. consular officers may have unofficially , improperly applied reed amendment refuse issuance of visas former u.s. citizens. mark nestmann states knows of occasional cases in former citizens have been denied u.s. visas, consuls citing reed amendment authority. nevertheless, eugene chow of chow & king associates states in spite of reed amendment, consular officers routinely issue visas ex-u.s. citizens, , state department s office of legal adviser has reversed denials based on reed amendment after being made aware of them.

in 2015, u.s. embassy in bridgetown, barbados rejected application ex-u.s. citizen roger ver u.s. visitor visa speak @ bitcoin conference in florida. official reason stated in rejection letter ver had failed prove ties country of residence, meaning had not overcome presumption of immigrant intent. decision did not bar ver later obtaining u.s. visa if overcome presumption intended immigrate. commentators speculated reed amendment true reason behind ver s visa denial, though tax lawyers expressed doubts due known reasons law s non-enforcement. ver states obtained u.s. visa later in same year u.s. embassy in tokyo, , visited u.s. in june 2016 speak @ conference in denver, colorado.