Pertaining to the question of “close and continuing contact with a foreign national” - If you have close and continuing contact with someone who is foreign born, but is now (and has been for 20+ years) a US Citizen, has lived in the USA for this period of time, and still maintains their birth country passport (and keeps it renewed) - would this be a yes or no on that question?
This is a contact that I would recommend reporting. At issue will be what country the hold a passport for and perhaps their connections in their native country.
No, this is not reportable since the person is also a US citizen. Dual citizen with US citizenship is not reportable. Foreign national means non-US citizens.
I agree with Ed, I would recommend reporting as a precaution.
See, I wanted to make a post just about this. Section 19 of the SF-86 clearly indicates “A foreign national is defined as any person who is not a citizen or national of the U.S.” and my FSO said that dual citizens who have US citizenship do not need to be reported as foreign nationals.
However, I have seen a number of posts, Ed’s comment, and my BI who have all said that dual citizens with US citizenship count as foreign nationals. I got blindsided by this in my interview since I had read the SF-86 very closely and I had to explain why I didn’t list them.
I understand that US citizens with other citizenships pose a national security threat and are worth investigating further. Absolutely. I just don’t like that there isn’t a clearer definition on the form.
Note: I said that I would recommend reporting. Not that it was required. That was, in part, because you didn’t provide enough information to know if the person was going to be an issue or not. What country? What connections? Did they serve in a foreign military or intelligence organization? Do they still have close ties?
Remember . . . If every question were rewritten to remove ALL ambiguity, the form would become too long to fill out.
I can certainly relate to @danorou… I once had an investigator directed me to report a rommmate (who was a dual citizen) even though the SF-86 explcitly stated not to include it. In another instance, I was directed to report green card holders/dual citizens.
Anyway, the advice that I received from security clearance attorneys and security professionals is… stick to the plain meaning of the form. Providing information outside the scope of the investigation or form is entirely voluntary. If you do not want to volunteer, you can politely decline or better… ask the investigator for justification --preferably in writing.
I am not sure why does additional information matters. The plain meaning of the form is clear on the subject In contract law, the writer of any contract bears the burden of clarifying the meaning not the reader/applicant. Any ambiguity usually goes against the writer.
That’s nice . . . but, we aren’t talking about contract law. The process here is almost completely unrelated to any other area of law. Keep in mind that the burden of proof here is on the applicant, not the government. You can choose to not report something when requested but that, alone, provides sufficient reason to deny your application.
Remember also that the investigation isn’t limited to what is on the SF86. It’s not limited to the information that you provide nor is it limited to the questions on the form.
So, in the case of the OP, if the investigator decides that this contact should be investigated, the contact will be investigated or the application denied.
As always, when I answer questions here, the goal is to be granted access to classified material. Right and wrong don’t enter into the question and neither does trying to split legal hairs in a situation where denial is the default position.
huh? I am not sure where the burden of proof comes in when we are talking about plain meaning of a document. The standard form 86 is a contract between applicant/holder and the US Government; thus, contract law applies.
on what basis are you asserting this claim?
Are you suggesting that an investigator has a carte blanche as to investigate outside the scope of the questions? I am not sure if I agree with that. I will imagine that the investigator will need to assert the basis for the investigating items that are clearly outside the scope of an investigation.
I am mindful that our goal is to get a job, which comes with a favorable determination; however, we must follow the legal course of action. Questions from an investigator that deviate from what asked on the form or alter the plain meaning of the form are probably illegal or impermissible.
In this case here, foreign nationals do not enjoy the same constitutional protections as do American citizens. By revealing information about a dual citizen who is also a US citizen, that information is illegal for Government use. We need to thread carefully in this case and make sure disclosures are both voluntary and legal.
Obviously, I take this seriously. Anyway, I am not going to hijack this thread by going down that lane.
In order to approve an applicant it must be “clearly in the interest of national security to allow the applicant access to classified material”. During an appeal, the government has no need to prove its case. The applicate is required to show that government is wrong in their determination.
An investigation is not a contract dispute. Any shortcomings in a contract can void the entire contract. This is an investigation and the security forms and interview are more like a deposition than a contract. If an applicant legitimately misunderstands or misinterprets a question, they have an opportunity to provide the additional information. This is usually only held against them if it appears that they DID understand the question and purposefully withheld information.
We regularly, here, hear about “developed leads”. These are items or people who were not listed on the application but turn up during the investigation.
I am not, anywhere suggesting that an investigator has carte blanche to investigation outside the scope of the REQUIRED INVESTIGATION. Outside the scope of the questions asked on the form? They most certainly do and it happens. When I say “the investigator decides,” I’m not talking about capricious decisions to go on fishing expeditions. I’m talking about decisions by experienced investigators who, in good conscience, see something that should be explored.
So . . . On what basis are asserting that I am incorrect?
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https://news.clearancejobs.com/2015/06/16/security-clearance-background-investigator-shouldnt/
“Ask questions that alter from the language on the SF-86 questionnaire. While the interview should have a conversational tone, your investigator should read the questions on the [SF-86] verbatim. An investigator who provides his or her own interpretation of the questions encroaches into risky territory, especially if an applicant misunderstands a question and the response substantially affects the final adjudication.”
https://news.clearancejobs.com/2018/04/27/dos-donts-background-investigation-interview/
“Don’t offer up new information, unless it’s to mitigate or clarify something from your SF-86.”
Section 19 reads: A foreign national is defined as any person who is not a citizen or national of the U.S.
Using that standard, applicants/holders are not required to report nor do they need to report US citizen/national (green card holder) who is also a citizen of another country.
That’s great . . . See how it works out?
Done with the question . . .
I agree that, from the point of view of an investigator, you want applicants to provide as must information as possible. From the point of view of an applicant, you want to provide as little extraneous information as possible.
I agree with you in principle that the SF-86 can’t be totally clear, but in this case it’s pretty simple. If they want to know about duals, then just define foreign national as “Anyone with a citizenship other than or in addition to U.S. citizenship”.
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@sapguy If I understand you correctly, the individual is a dual citizen. According to my investigator and several FSOs in my circle, dual citizens fall within the “Foreign National” category. You have to list this person.
I think the misunderstanding between @EdFarmerIII and @AWoodhull in this thread just comes down to how things should work from a strict perspective and how things should work from a national security perspective.
As an applicant, you would like to think that if you can answer every question on the SF-86 satisfactorily (or have a reasonable defense for any problems), you want to think that they shouldn’t be able to spring additional things on you which might throw off your chances at a clearance. That’s how I felt when my interviewer told me that dual citizens with US citizenship are considered foreign nationals, because I was put on the spot to think of any close/continuing relations from the last 7 years. That was stressful and felt unfair because I read the definition very strictly.
But I get it. National security is important. You don’t want the US national security to be at risk simply because a question wasn’t written clearly. And I think that interviewers should be able to look into anything they want. It’s just that they need to (and adjudicators should recognize) that missing information may simply be a fault of the wording on the form.
As long as that balance is held, I see no problem. But the easiest remedy is just to make the SF-86 as clear as possible, and this is one small area that could use improvement.
Why are investigators and FSO’s making statements contrary to the instructions on the SF86?
Section 19:
“A foreign national is defined as any person who is not a citizen or national of the U.S.”
If an applicant has a close and continuing relationship with a US Citizen, who is foreign born holding a dual passport, they’re still a US Citizen. They can vote. They have been naturalized and recognized as an American by the US Government. That they hold a second passport, which is permitted by US Law, should not really be relevant anyway.
Contrary to popular belief (wishes?) Agents and investigators are not limited to the questions on the SF 86/SF 85. The Subject is only responsible for the responses to the questions, meaning the Subject is responsible for answering each question honestly.
This does not give the investigators carte blanche into everything, but allows the investigation to chase down concerns and issues for the adjudicator and the requesting Agency.
You really don’t want your background investigator to be surprised during the investigation. Unfortunately, too many of my Subjects don’t understand this concept.
I strongly suggest answering any questions the investigator might ask. If the questionnaire is not clear, such as the dual citizenship (which has bounced back and forth over the last few years) being a foreign citizen, read the question literally and provide your response.
If asked by an investigator why you did not list someone, responding that the questionnaire did not ask, incident was outside the time frame, etc, is a good response. Then answer any questions from the investigator.
We are not a “gotcha” investigation. I have no knowledge if you will be cleared or denied because of how the process works. We are legally responsible to provide the good and the bad (issue and mitigating factors) to the adjudicator. Often, the questions asked are mitigating questions
As for the dual citizenship friends, there are many times providing the information a head of time mitigates the possible issue. Common example, “Subject has a Chinese brother in law” said Subject’s best friend. Where as reporting that your brother in law is a dual citizen of US and China mitigates a possible issue, especially when the “China” is Taiwan.
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