the opinion of the Supreme Court of the United States in the case of Perkins v. Elg, fitting it to the case and if the person has indicated an election of foreign nationality by continuing to reside in a foreign country merely because he preferred that country then we would hold that he has lost his American nationality.

The CHAIRMAN. How would you prove that? You would have to go into the proof of that.

Mr. FLOURNOY. Each case would have to be handled as it comes up. Mr. LESINSKI. I want to interject a question. Under the present law an American citizen residing in a foreign country on business has an American child born. Now that child when it attains the age of 21 years has to come back here and declare that it wants to be an American citizen. We are putting a burden on that child.

Mr. FLOURNOY. Mr. Chairman, I think the gentleman has misunderstood me.

Mr. LESINSKI. No; we put a burden on an American-born child in what it has to do. We are putting a burden on an American child. Why not put the same burden on a second child born of American parents by requiring and making them declare themselves the same as we expect our American children to declare themselves and they should have a limited time and if they think they want to stay there and marry why then let them stay.

Mr. FLOURNOY. We had such a provision in the original code prepared by the committee advisers covering precisely that and I think personally and all of us in the State Department who have had to struggle with these nationality cases feel the same way that there should be a requirement for an election in those cases.

Mr. LESINSKI. The law is a hardship on cases of children of American parents abroad on account of business, as for example, right in your own Department.

Mr. FLOURNOY. Yes, sir.

Mr. LESINSKI. They have to make their declaration. I think they must come here prior to the age of 18 and be here 2 years or whatever that law reads. We put that burden on natural American-born children.

Mr. FLOURNOY. Yes, sir.

Mr. LESINSKI. But here we are giving children who have gone away with their parents and those whose parents have elected a foreign nationality more rights. In other words, they do not have to declare until they reach the age of 21 and in some cases 15 or even 40 years more. Why should we do that? I think the law should be specific. As long as the parents elect to stay over there let them stay there and when the children reach 21 they should make their declaration. If they do not declare themselves it is just too bad, just as foreign aliens lose their right once they have made their declarations here. That is my idea.

Mr. FLOURNOY. In the code as first drafted we had a provision to take care of dual nationality cases. For instance, children of Italian parents in cases where the whole family moved back, the parents moved back to Italy and they would take the children with them. The children were then brought up in that country. Under the Italian law they are Italian nationals and under our law because they were born here they are Americans. In other words, there is a dual nationality.

Under this original provision such persons would lose the American nationality if they lived in a foreign country for 2 years after they reached their majority.

Mr. AUSTIN. Then I would say that we agree as to those children. Mr. FLOURNOY. Yes; after the provision was prepared the Departments of Labor and Justice found some objection to that, and we could not reach an agreement, and in order to get on with the code we agreed to drop it. The State Department preferred to retain it, but it is not in this code as it now stands.

Mr. AUSTIN. Everyone is excluded from the provisions except those who are between the ages of 21 and 23, is that not what it means, according to the desires of the State Department? It does not affect the man who is 25 years old over there and wants to continue what he thinks would be American citizenship. He is out of luck. Mr. LESINSKI. That is in regard to the retroactive features of the State Department's proposal. He is out of luck if he is 23 years old. Mr. FLOURNOY. We maintain the position we could not put any retroactive law in there. As to those cases that have arisen in the past where some person born here was naturalized over 40 years ago in a foreign country and has settled down there and is regarded as a citizen of that country for many years, we would simply apply in a case like that the principles found by the Supreme Court in the case of Perkins v. Elg.

Mr. REES. No matter how old they are?

Mr. FLOURNOY. Yes; if foreign residence was not due to any compulsion. If it was not due to anything or something beyond their control we would say he had elected foreign citizenship.

The CHAIRMAN. Wouldn't that give more latitude than this amendment proposes?

I

Mr. FLOURNOY. I think what you have here was the 2 years. drew up a proposal to that and that [indicating] is the Department of Labor proposal. I drew up a proposal with that 2-year provision, shutting down on a certain group, although it is a little hard on some people who were living there for reasons beyond their control. Still, I can see the advantages from the administrative point of view, and I think we could take the provisions proposed by the Department of Labor with that 2-year shut-down, as you call it, without going quite so far as they go.

I have a draft here that I would be very glad to turn over to the committee.

The CHAIRMAN. It would be a counterproposal to that of the Department of Labor.

Mr. FLOURNOY. Yes, sir; I mean taking their proposal with modifications, retaining that 2-year provision, but without going so far as to make it necessary to hold that all these people, regardless of how long they had been living abroad, are citizens. I have that and I will be glad to turn it over to the committee. I will read it as it is not very long.

The CHAIRMAN. Go ahead.

Mr. FLOURNOY. This is the Department of Labor draft with these variations:

Provided further, That a person who, prior to the effective date of this act, has acquired foreign nationality through the naturalization of his parent or parents, shall, if abroad and he has not heretofore, after attaining the age of 21 years,

manifested an election of such foreign nationality, be permitted within two years from the date of the approval of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen. Failure on the part of such person to so return and take up permanent residence in the United States during such period shall be deemed to be a determination on the part of such person to discontinue his status as an American citizen, and such person shall be forever estopped by such failure from thereafter claiming such American citizenship.

The principal changes there are this statement—

shall, if abroad and he has not heretofore, after attaining the age of 21 years, manifested an election of such foreign nationality,

That is different from the Department of Labor's proposal

shall, if abroad and he has not heretofore expatriated himself as an American citizen by his own voluntary act.

The CHAIRMAN. Have you furnished a copy to the Labor Department to their counter amendment?

Mr. FLOURNOY. I don't believe so. I wrote it at the last meeting with the idea of discussing it.

The CHAIRMAN. All right. Is there anything else you want to say on this controversy? If so, I would like to hear the Department's views.

Mr. FLOURNOY. Well, I can read our own proposal if you wish. If section 401 (a) is to be amended it should be by the addition of the following two provisos :

Proviso 1, that nationality shall not be lost as the result of naturalization of a parent unless and until the child shall have attained the age of 23 years without having acquired a permanent residence in the United States.

Both Departments agreed on that.

The second proviso that we propose is the following:

Proviso 2, that in the case of one who, on the effective date of this act, shall have obtained naturalization in a foreign state through the naturalization of a parent but is under the age of 23 years, nationality shall not be lost until such person shall have attained the said age without having acquired permanent residence in the United States.

That was our own proposal. If it is decided to make any changes in subsection 401 (a), what I read a moment ago was an attempt to reach an accord with the Department of Labor by modifications of their proposal.

Mr. CURTIS. Under the second proviso, the Department of Labor would permit persons who have lost their citizenship because of their parents, regardless of their age, any time within 2 years of the passage of the act, they could proceed to make their election as an American citizen.

Mr. FLOURNOY. Yes, sir.

Mr. CURTIS. And your proposal is that if they were 23 years of age they cannot do that. Isn't that what it amounts to?

Mr. FLOURNOY. No, sir; it is not quite that. There are two things: We want to get them straight. Our whole proposal was to the effect that if it is decided that a change in section 401 (a) be made that the change should be limited to the cases of persons who attain the age of 23 years in the future. No attempts should be made to decide whether a person who is at an advanced age and has been living in a foreign state since naturalization has or has not lost citizenship, but we would apply the principle laid down by the Supreme Court in the

case of Perkins v. Elg and we would not attempt any retroactive legislation. That is one thing.

The other was simply an attempt to take the proposal of the Department of Labor with that 2-year foreclosure, or whatever you might call it, which has administrative advantages, but not going so far as the Department of Labor wishes to go.

Mr. CURTIS. And that is the one where you would apply the negative action of the person in the foreign state as to whether or not they had elected to become citizens of the foreign state.

Mr. FLOURNOY. Yes, sir.

Mr. CURTIS. That would be the determining factor. In this it would be a positive election to remain an American. That is the difference, isn't it?

Mr. FLOURNOY. In both of our proposals, we attempt to leave it open to decide both cases where the naturalization took place many years ago and the case of a person who has resided in a foreign country for years since attaining his majority. Since we apply the principle laid down by the Supreme Court, if he has indicated by his own act, including his choice of residence, he continues to reside in that country for many years and we would regard that as manifestation of election of that country, but we do not say in here just how the election might manifest itself. It might be in other ways. It might by voting in a foreign country; it might be by voluntarily entering the army of the foreign country, or other things. This, after all, is a broad provision that

if abroad and he has not heretofore, after attaining the age of 21 years, manifested an election of such foreign nationality, be permitted within two years from the date of the approval of this act to return to the United States and take up permanent residence therein, and it shall be thereafter deemed that he has elected to be an American citizen.

Mr. AUSTIN. If you want to make that a present manifestation it would amount, as I understand it, to practically this: That any national, whether by birth or naturalization, who shall have lost his nationality by the naturalization in a foreign state either through his own application or through the naturalization of the parent, he shall not by his return to the United States for permanent residence before attaining the age of 23 years lose his American citizenship.

Mr. FLOURNOY. Well, the gentleman assumed in that statement that the gentleman had lost his American nationality. The statement just made is an assumption that the individual had actually lost his American nationality, but the Department of Labor's proposal carries an assumption that the individual has not lost his nationality, as I understand the proposal. He has not lost it even though he has lived in a foreign state some 40 years; he is naturalized and is still an American citizen.

The CHAIRMAN. Is not the Department of Labor proposal more restrictive; that is,. their amendment? It carries a dead line of this 2 years. They can come back within 2 years after the passage of the act.

I think we ought to stop unlimited controversy on the right of citizenship or else the State Department will be just flooded by applications from the thousands and thousands of people who will want to avail themselves of it.

Mr. AUSTIN. In other words, Mr. Chairman, do you think that the 2-year qualification will do away with this unsound dual citizenship? The CHAIRMAN. That is my opinion, not leave it open any more. Mr. FLOURNOY. We are perfectly willing to agree to this 2-year foreclosure provided it is not necessary to hold that all of these people are still citizens regardless of what they have done since they were naturalized in the foreign state and since they have attained majority. We think that individuals who have been living for 40 years since they attain a majority have made their election and the decision of the Supreme Court amply supports that position. Mr. AUSTIN. If he has maintained the election by staying there 40 years he will not bother you by coming over here.

Mr. FLOURNOY. We do not know that.

Mr. REES. The State Department may hold that a certain individual cannot come within the United States because he has gone as he says for a number of years, but there is a little contention here that will be offset by some other witnesses who claim that if we write into the law that everybody born here who has become naturalized by their parents still has 2 years within which to elect citizenship. It might be the opening of a gate. However, the testimony of the State Department in my opinion has not brought it out very clearly. It might be an encouragement to bring them in and get them to come back and claim citizenship.

Mr. AUSTIN. If they were born here they should be allowed to return. If we are responsible for them we should go ahead and allow them to return.

Mr. VAN ZANDT. But they neglected citizenship that they wanted to retain and the passage of this bill or law will excite them and encourage them to return.

Mr. REES. There is a question as to whether it will or will not. The other question is that we are setting a dead line and if they do have a right to become citizens now is the time to do it. I do want to know what the State Department's interpretation is.

Mr. FLOURNOY. Our contention is in regard to the setting of this dead line that the man who has resided many years in a foreign state after attaining his majority and has been naturalized is already a citizen. Furthermore, I would like to call attention to a point raised last week. That is in regard to the children of these people. Many of them are married in those countries and they have had children born there, which makes it necessary to hold that all of those children are citizens of the United States born in those alien surroundings and you can let them in within 2 years. Some of them will be reaching military age and they will want an opportunity to get out and come over here and they are no more Americans than any other people in that country, but they think they are.

Mr. REES, Is that your contention, or not? Do you contend that that group, as I understand it, ought to rest on the present law and present code decisions?

Mr. FLOURNOY. Yes, sir.

Mr. REES. And let the State Department or whoever is in authority determine whether or not they shall or shall not come in at any time. Mr. FLOURNOY. Yes, sir; determine each case according to the facts of that case, That would be a natural presumption that if a person

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