Does Dual Citizenship Disqualify An Applicant For A Security Clearance?

The signing of Security Executive Agent Directive (SEAD) 4 in 2016 served as a monumental change in the government’s policy for dual citizens wanting to obtain a security clearance.  Previous Adjudicative Guidance barred security clearance holders from “any right, privilege or obligation of foreign citizenship after becoming a U.S. citizen.” The government interpreted this guidance to include any use of a foreign passport. Prior to this 2016 policy change, most dual citizens were required to renounce their dual citizenship in order to obtain a security clearance.

Of course there were exceptions, the most common exception involved Intelligence Community SCI clearances, which had limitations to use of the dual citizenship.  These limitations included assessing whether the country posed a particular security risk, and that the individual did not travel with the passport of the country in question.

While SEAD 4 allowed for this policy to apply across the IC, implementing guidance by the Defense Security Service wasn’t issued until Jan. 28, 2019. The released Industrial Security Letter provides the necessary guidance for government contractors wanting to address their dual citizenship.

The ISL instructs facility security officers to no longer retain or destroy foreign passports or identity cards for their employees with dual citizenship.  The ISL specifically states:

“In order to implement SEAD 4, cleared contractors who have retained a cleared employee’s foreign passport or identity card, based on DoD directions or personnel security adjudicative decisions, should immediately return the foreign passport or identity card to the cleared employee. Upon returning the foreign passport or identity card to the cleared employee, the facility security officer, or designated JPAS user acting on behalf of the contractor, will remind the cleared employee of their responsibility to enter and exit the United States using their U.S. passport.”

Does this mean dual citizens should immediately plan that return trip home with their original passport, without fear of reprisal? Hardly. The ISL notes that FSOs should remind dual citizens that they are expected to travel with their U.S. passports. Dual citizens have good reason to stay on the right side of this policy decision. Last August the Department of Homeland Security stood up its Continuous Evaluation (CE) Travel Record Data Service project. That means security clearance holders’ travel information is being shared between DHS and the government’s CE systems. Regardless of whether a security clearance holder travels with their U.S. or another country’s passport, expect that information to be provided to the Office of Director of National Intelligence, and potentially used to trigger an investigation if anything suspicious is discovered.

The move emphasizes the importance of self reporting any travel. You might save a few minutes getting through customs on another passport – but you’ll risk losing your clearance.

When it comes to national security clearance under petitions through the Department of Defense and Intelligence Community Policy Guidance, both seem to have comparable standards, however, the language used in the regulations allow them to be interpreted quite differently. In petitioning for a dual citizenship, this can be used to your advantage.

Important Factors to Consider Before Applying With a Dual Citizenship

Attorney Brett O’Brien  has represented countless clients who have a dual citizenship and need to obtain a national security clearance. He has guided many petitioners through successful applications under both the ICPG 704.2 and the DOD 5520.6. Security clearance petitions can be quite complex, however, despite the complications, having a trusted and well-recognized law firm to guide you through the process is essential. Attorney Brett O’Brien thrives in a courtroom and has the knowledge and drive to understand all aspects of the ever-changing security clearance law. He has the ability to interpret the laws and regulations to make your petition for security clearance have an advantage.

If you have a dual citizenship and need security clearance, consult the legal advice of a proficient national security clearance attorney – contact the National Security Law Firm firm today.

Interpreting Different Regulations

As of 2016, the Security Agent Directive 4, National Security Adjudicative Guidelines, was approved. The new guidelines have superseded those previously supported by the President in 2005 and the Intelligence Community Policy Guidance. The new guidelines represented one major change:

Guideline C – Foreign Preferences

Under the 2005 Adjudicative Guidelines, it was prohibited to practice rights and privileges or obligations of any foreign citizenship once becoming a United States citizen. The identity of the foreign country had no significance. Furthermore, there were also no mitigating conditions available for national security clearance applicants that were not willing to renounce their foreign citizenship or surrender foreign passports. This included those who had dual citizenship in countries such as the United Kingdom, Canada, New Zealand, and Australia.

Under the ICPG version of the Adjudicative Guidelines, it was now possible for people that have a dual citizenship petitioning for access to Sensitive Compartmented Information the ability to partake in certain privileges, rights, or obligations of foreign citizenship once becoming a United States citizen. This was only when the foreign country did not pose a heightened national security risk to the United States.

The ICPG lessened the difficulty for dual citizen applicants to obtain Sensitive Compartmented Information clearance but concerning language remained prevalent: Foreign association raises concerns with regard to a person’s reliability, trustworthiness, and judgment when the foreign nation in in conflict with the United States’ interests and when the applicant acts to obscure it. Isolating the situation, a United States citizen, being the citizen of another nation, is not an eliminating factor without an objective presenting such issues or attempts at concealment. This is true for United States citizens’ ability to exercise the privilege or right of foreign citizenship and the actions taken to acquire and obtain recognition of foreign citizenship. 

Now, however, it will be permissible for those with national security clearance or seeking to obtain a national security clearance to:

1. Petition for or acquire a foreign citizenship, and
2. Possess or utilize a foreign passport, with the exception of entering or exiting the United States, when the existence of the passport to the foreign country has been identified to the appropriate United States security officials.

When the issue of a conflict of interest arises, the dual citizenship could be mitigated, if the petitioner has a willingness to renounce the foreign citizenship or there is no sign of having a foreign preference.

Holding a Dual Citizenship Is No Longer Exclusive to Certain Foreign Nations

As previously mentioned, context within the ICPG claims that national security clearance while holding a dual citizenship will not be possible when the foreign country poses a risk to the national security of the United States. Previously, petitioners with a dual citizenship with a trusted ally were perceived to have easier access to an expedited application. Although this can still be the case today, the matter will largely depend on a case-by-case basis and it will also depend on the foreign nation’s present extent of involvement with the United States.

Although there have been significant policy changes, national security clearance holders should not believe that having a dual citizenship will not continue to present challenges. Having a dual citizenship can still be viewed has a possible security issue. It should be noted that there is a stark difference between individuals that hold a dual citizenship through birth and individuals who seek out a dual citizenship by choice. The latter will be viewed as possibly showcasing foreign preference, which is incompatible with the United States national security interests.

When Seeking National Security Clearance, Hire the Legal Support of a Proficient Attorney

Having a dual citizenship is no longer impossible in terms of also having or petitioning for a national security clearance. However, the perceived notion of having a foreign passport can still be viewed as having foreign preference when the foreign passport is used for matters besides travel necessity. National security clearance should continue to use discretion and limit the use of a foreign passport to activities that cannot be reasonably constructed as exerting the privileges and rights of a foreign citizenship.

Dual citizenship is a complex matter when it seeking national security clearance. Nonetheless, successful cases are possible. The matter can largely depend on the knowledge, courtroom skill, and experience of a national security clearance attorney. If you are concerned with your petition to national security clearance or the loss of clearance, which could cause your employment termination, consult the legal support of a proficient attorney as soon as possible.

Attorney Brett O’Brien has many years of dedicated experience helping applicants obtain a security clearance. Today, it is feasible for individuals with a dual citizenship to obtain a national security clearance when the petition to do is handled correctly. Seek the guidance and legal support of an experienced national security clearance attorney today.