I was recently introduced to Roger Ver through a post written by Petros of the Isaac Brock Society. He reminds of me a “Live Free or Die” American, who may be a Libertarian. Seems like Mr. Ver wanted to “Live Free”. Seems like the U.S.A. – “that great citadel of freedom and justice“ – wanted him to die. Although Mr. Ver was allowed to live, he did spend some time incarcerated.
Fast forward. Mr. Ver is apparently a “BitCoin” entrepreneur. In addition, he is reported to have “renounced his U.S. citizenship“. As a non-citizen, he no longer has an automatic right of entry to the U.S.A. Like all others who do NOT have the good fortune of being U.S. citizens he can entry the U.S. only with the permission of the U.S. Government. That permission is expressed in the form of a visa. Now the story gets interesting. Mr. Ver has apparently been denied a visa to enter the U.S.
Now before, anybody gets excited, there is NO evidence that that is an attempt to invoke the “Reed Amendment“. After all, his visa was NOT declined on the basis that he had renounced his U.S. citizenship. His visa was declined on the basis that he could not prove that he was NOT attempting to enter the U.S. for the purpose of staying permanently. In other words, the concern of the U.S. government appears to be:
We don’t want people renouncing U.S. citizenship on the one hand and THEN entering the U.S. to stay there permanently. (Of course if he were to overstay his welcome that would make him subject to the “substantial presence” test and he would become a U.S. taxpayer all over again.
This law and principle is explained courtesy of the U.S. Embassy in Iran as follows:
As explained by the U.S. Embassy in Iran:
The United States is an open society. Unlike many other countries, the United States does not impose internal controls on most visitors, such as registration with local authorities. In order to enjoy the privilege of unencumbered travel in the United States, aliens have a responsibility to prove they are going to return abroad before a visitor or student visa is issued. Our immigration law requires consular officers to view every visa applicant as an intending immigrant until the applicant proves otherwise.
What Is Section 214(b)?
Section 214(b) is part of the Immigration and Nationality Act (INA). It states:
Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…
To qualify for a visitor or student visa, an applicant must meet the requirements of sections 101(a)(15)(B) or (F) of the INA respectively. Failure to do so will result in a refusal of a visa under INA 214(b). The most frequent basis for such a refusal concerns the requirement that the prospective visitor or student possess a residence abroad he/she has no intention of abandoning. Applicants prove the existence of such residence by demonstrating that they have ties abroad that would compel them to leave the U.S. at the end of the temporary stay. The law places this burden of proof on the applicant.
In any case, the “Roger Ver” chronicles have been the subject of two interesting posts. The first is a post by Wendy McElroy in Dollar Vigalante. The second was an interesting commentary by U.S. Tax Lawyer Virginia La Torre Jeker.
I include commentary from both authors.
First, Wendy McElroy:
Roger Ver is a virtual currency millionaire who has been dubbed the Bitcoin Jesus because of his avid advocacy of the blockchain money, which includes his seeding many businesses that use it. Last year, the libertarian-anarchist became a citizen of the Caribbean nation of St. Kitts and Nevis and renounced his American citizenship. Ver may be a bellwether of how the US plans to treat those who renounce their citizenship or who are otherwise inconvenient expats.
A frequent speaker at bitcoin events held in the US, Ver was meticulous about the process of renunciation and its implications. “I checked with lawyers very carefully before I renounced, and they clearly assured me that I will qualify for a visa to visit the USA. I would be fine with them denying my visa if it was for a valid reason.”
Ver also went through a mandatory “one-week cooling-off period” and confronted such official questions as “Did you know if you renounce citizenship, you won’t be able to serve in the armed forces?” Ver remembers thinking, “darn,” before renouncing as fast as he could.
On January 6, he was denied a visa to attend the North American Bitcoin Conference, held from January 16 to 18 in Miami, a three-hour flight from St. Kitts and Nevis. (That passport allows for visa-free travel to 120 countries but the US is not one of them.)
It was apparently Ver’s third attempt to re-enter America within an eight day period. The US Embassy in Barbados was happy to accept the $160 application fee each time it refused a visa. The stateside government had also willingly accepted his payment of a $325,000 tax bill just weeks before. Blood money, yes; entry, no. Ver cannot appeal the decision, only reapply and lawyers opine that each denial reduces the chances of future approval.
The official reason? The denial of entry was based on Section 214(b) of the Immigration and Nationality Act (INA) which is notoriously elastic. The Section states, “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” In short, this section of the INA presumes every applicant for a visa to America intends to eventually reside in America. It is the burden of each applicant to demonstrate that this is not the case…”
The embassy’s rejection letter stated: “One of the most common elements within the various nonimmigrant visa requirements is for the applicant to demonstrate that they have a residence in a foreign country which they have no intention of abandoning … You have not demonstrated that you have the ties that will compel you to return to your home country after your travel to the United States.” In short, America allegedly fears Ver will overstay his visa and become an illegal immigrant in the land of his own birth.
Second, further analysis from Virgina La Torre Jeker:
Even if the Reed Amendment is not being enforced, there are other ways to keep expatriates out of the country. Just a scant few weeks ago, former US citizen, Roger Ver, the virtual currency millionaire commonly known as “Bitcoin Jesus”, was denied re-entry to US after taking on Saint Kitts’ citizenship and then expatriating. We understand that denial of entry was based on Section 214(b) of the Immigration and Nationality Act which is very ambiguous by its terms. The Section states, “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…” Generally, this provision of the law assumes that an applicant for a US visa intends to eventually reside in America and the applicant bears the burden of proving that he does not intend to overstay. We also understand that the US embassy’s rejection letter stated that Mr. Ver could not demonstrate that he had a residence in a foreign country which he had no intention of abandoning. “ You have not demonstrated that you have the ties that will compel you to return to your home country after your travel to the United States.” Mr. Ver has stated the US Embassy in Barbados would not even look at paperwork supporting his case that demonstrate Ver’s strong ties and business connections to Japan.
Remember, it is within the discretion of the consular officer to grant a visa to enter the US or to permit entry to those holding passports entitled to the 90-visa waiver. Given the growing trend in expatriations, and (in the eyes of some) the taint associated with giving up one’s US citizenship, if the would-be entrant’s record shows he has “renounced”, I think we may be seeing more and more visa denials and refusal of entry requests at the border. A practitioner colleague has shared his view and stated that “[o]ne of the great ‘spots’ of almost unfettered discretion is the American consular officer in an Embassy. If he or she denies the visa, it will be very hard, time-consuming and expensive to reverse this. This is my experience.”
Conclusion – if there is one:
This is a good reminder that the “Reed Amendment” (whether operational or constitutional) is NOT the problem for those renouncing U.S. citizenship. The problem is that the U.S. can, pursuant to the Immigration and Nationality Act, deny entry to those who are NOT U.S. citizens. Of course, they can also deny entry to U.S. citizens who are NOT traveling on a U.S. passport.
Look at it this way. There are two kinds of people who may be denied entry to the U.S.A.
First, those who are NOT U.S. citizens.
Second, those who ARE U.S. citizens and don’t have a U.S. passport (the majority of the U.S. population).
Therefore the obvious conclusion is:
Do NOT under ANY circumstances EVER leave the U.S.A.! You might not be able to return! (Only kidding)