Advice about Possible Loss of U.S. Nationality and Foreign Military Service
A U.S. national who is a resident or citizen of a foreign country may be subject to compulsory military service in that country. Although the United States recognizes the problems that may be caused by such foreign military service, there is nothing that we can do to prevent it since each sovereign country has the right to enact its own laws on military service and apply them as it sees fit to its citizens and residents.
Federal statutes long in force prohibit certain aspects of foreign military service originating within the United States. The current laws are set forth in Section 958-960 of Title 18 of the United States Code. In Wiborg v. U.S. , 163 U.S. 632 (1896), the Supreme Court endorsed a lower court ruling that it was not a crime under U.S. law for an individual to go abroad for the purpose of enlisting in a foreign army; however, when someone has been recruited or hired in the United States, a violation may have occurred. The prosecution of persons who have violated 18 U.S.C. 958-960 is the responsibility of the Department of Justice.
Although a person’s service in the armed forces of a foreign country may not constitute a violation of U.S. law, such action could serve as a predicate act for the relinquishment of U.S. citizenship under 349(a)(3) of the INA [8 U.S.C. 1481(a)(3)] under two circumstances. Section 349(a)(3) provides for loss of U.S. nationality if a U.S national voluntarily and with the intention of relinquishing U.S. nationality enters or serves in the armed forces of a foreign state engaged in hostilities against the United States or serves in the armed forces of any foreign state as a commissioned or non-commissioned officer. Note that the administrative presumption of intent to retain nationality does not apply to voluntary service in the armed forces of a state engaged in hostilities against the United States, and thus such action could be viewed as indicative of an intention to relinquish U.S. nationality, although each case is examined on its own with a view to the totality of the circumstances. Military service in a foreign country is not an expatriating act if service is as a soldier who is not an officer, unless the foreign military is engaged in hostilities with the United States. Further, foreign military service usually does not cause loss of nationality since an intention to relinquish nationality normally is lacking. In adjudicating loss of nationality cases, the Department has established an administrative presumption that a person serving in the armed forces of a foreign state not engaged in hostilities against the United States does not have the intention to relinquish nationality. One who voluntarily serves as a commissioned or non-commissioned officer in the military of a country not engaged in hostilities with the United States will lose one’s U.S. citizenship only if one intended to relinquish U.S. citizenship when he/she served in the armed forces of a foreign state.
See also information flyers on related subject available via the Department of State, Bureau of Consular Affairs home page. These flyers include:
