A-3 and G-5 Visa

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The A-3 and G-5 nonimmigrant visa programs allow foreign diplomats and employees of international organizations to employ foreign workers for in-home domestic work. 

I. A-3 AND G-5 VISAS
A-3 and G-5 nonimmigrant visas are specifically for domestic worker employees of foreign diplomats and international officers.  A-3 and G-5 visas are very similar.  The only difference is the nature of the employer’s work or mission in the United States.  The A-3 visa allows entry for the attendants, servants, and personal employees of a diplomat or foreign government official.1 The G-5 visa is designated for attendants, servants, and personal domestic workers of an employee working for a designated international organization, such as the United Nations or the World Bank, “and the members of the immediate families of such attendants, servants, and personal employees.”2 Both visas are initially valid for up to three years, and may be extended in two-year increments.3 However, as a matter of U.S. State Department standard and customary practice, these domestic worker visas are issued for a maximum period of 24 months and may not exceed the validity of the visa held by the employer.4 Extensions are available for both visas.5 There is apparently no maximum number of years an individual may work with either an A-3 or a G-5 visa.  
 
There is no annual cap.  Even so, the number is relatively small compared to other nonimmigrant work visas.  In 2012, less than 2,000 new visas were issued for both groups of these workers combined.  Most A-3 and G-5 workers are from Asia and Africa.  The Philippines is the single country that sends the most to the United States.  
 
In the wake of numerous reports related to the underpayment, abuse and human trafficking of A-3 and G-5 workers, Congress passed extra protections for them in the 2008 reauthorization of the Trafficking and Victims Protection Act.  The U.S. State Department thereafter implemented guidelines for its consular officials specifically addressing protections for A-3 and G-5 visa applicants.6 These include, for example, a mandatory employment contract with various terms requiring, for example, that the employer pay a required wage and all transportation costs.  While having an employment contract in place prior to starting a job benefits foreign workers generally, once A-3 and G-5 workers are in the U.S., there is no system in place to make sure their employers are complying with the contract terms.  The U.S. State Department is charged with oversight, however, to date, the agency has avoided any role in contract enforcement.  Further complicating the issue, many employers of A-3 and G-5 workers are diplomats often protected by diplomatic immunity, limiting the ability to seek redress for contract violations in U.S. courts.7 One government official has even noted that “[t]here is no way any [nonimmigrant domestic workers] are being paid” the  prevailing wage.8 As with most other nonimmigrant visas that authorize work in the U.S., A-3 and G-5 workers are vulnerable to the extent that their immigration status is tied to their job placement.   
  • 1. 8 U.S.C. § 1101(a)(15)(A)(iii).
  • 2. 8 U.S.C. § 1101(a)(15)(G)(v).
  • 3. 8 C.F.R. § 214.2(a)(1), (g)(1); 9 FAM 41.112 Exhibit I.
  • 4. 9 FAM 41.112 N2.6.
  • 5. 8 C.F.R. § 214.2(a)(1), (g)(1); FAM (a) and (b).
  • 6. 9 FAM 41.21 N6.2(a).
  • 7. See generally 2 FAM 230. Diplomats and high-ranking employees of international organizations who employ these nonimmigrant domestic workers have immunity from civil and criminal prosecutions.
  • 8. Ashwini Sukthankar, Global Workers Justice Alliance, Visas, Inc.: Corporate Control and Policy Incoherence in the U.S. Temporary Foreign Labor System, p. 21 (2012).
II. A-3 AND G-5 HIRING PROCESS

Unlike with other temporary work visas, diplomatic and international employers who hire nonimmigrant workers with A-3 and G-5 visas do not petition the government for special permission.  Employers are not required to make any application with either the U.S. Department of Labor or the U.S. Department of Homeland Security.  Rather, the employer hires the prospective domestic worker, signs an employment contract with him or her, and then the prospective worker applies for the visa through either the U.S. embassy or consular post abroad.  Along with the visa application, the worker must present the signed employment contract, proof of the employer’s diplomatic mission, and be interviewed personally outside of the presence of the employer.  The U.S. State Department approves most A-3 and G-5 visa applications. Once the worker receives the visa, he or she travels to the U.S. and presents for admission at the U.S. border or port of entry.  The U.S. Department of Homeland Security’s Customs and Border Protection makes the final decision about whether to allow an individual with an A-3 or G-5 visa.

 

A. Steps for Employers

Not much is known about how employers select domestic workers for jobs in the United States or if recruiting agencies are involved.  Diplomat and international employers may find their domestic workers in their home countries.  The workers, however, may or may not be from the same country as their employers. Employers are not required to make any application with either the U.S. Department of Labor or the U.S. Department of Homeland Security.  Rather, the employer hires the prospective domestic worker, signs an employment contract with him or her.  During the worker’s visa application process with the U.S. State Department, the employer provides supporting documents, including the ambassador or chief of mission’s pre-notification form, and in some cases proof of financial solvency.9 Employers are required to pay for the domestic worker’s transportation to and from the United States.10 The A-3 and G-5 visas are only available for domestic workers whose employers are nonimmigrants.  If the diplomat employer is actually a legal permanent resident in the U.S., then the domestic worker is not entitled to an A-3 or G-5 visa but rather must qualify for another type of temporary work program, such as the H-2 nonimmigrant visa for temporary unskilled labor.11

 
 
 
 
 
 

B. Steps for Workers

The prospective A-3 or G-5 worker applies for the visa through the U.S. Consulate or embassy abroad.  The first step is to complete the Form DS-160 through an online application and upload a photo.  There are no visa fees.15 All A-3 and G-5 applicants must appear for personal interviews for their visa at the U.S. embassy or consular post abroad.16 At the interview, the applicant brings a printed out confirmation of the Form DS-160, their passport, a diplomatic note confirming the official status of the employer, and a signed employment contract.17  Consular officials must conduct the interviews outside the presence of the employer or recruitment agent.18 Unlike with most other nonimmigrant work visas, A-3 and G-5 applicants do not have to show nonimmigrant intent, i.e., they do not need to show ties to a residence abroad.19 The applicants do have to show that they are in fact intending to work in the U.S. as domestic workers for the specific diplomat employers, and not trying to come to the U.S. for another type of career.20
 
A–3 and G–5 visa applicants are subject to the normal grounds of refusal applicable to nonimmigrants in general.21  The adjusted refusal rate for A-3 and G-5 visa applications was just above 10% in 2012 and has ranged between 11 and 20% since 2005.22

1. Anti-trafficking brochure and education

When workers apply for their visas, the consular officers should distribute an anti-trafficking brochure describing various work protections. The information directs aggrieved workers to call 911, a toll-free hotline for victims of trafficking, or the U.S. Department of Justice.  The State Department must train its consular officers about the labor protections described in the brochure.23

2. Admission to the United States

A visa does not guarantee admission to the United States. The U.S. Department of Homeland Security's Customs and Border Protection will either permit or deny entry and determine the permitted time allowed in the U.S.  DHS recommends that all nonimmigrant visa holders review admission requirements. Upon arrival, A-3/G-5 workers will have fingerprints taken. 

 
  • 9. U.S. State Department, Visas for Diplomats and Foreign Government Officials, available at http://travel.state.gov/visa/temp/types/types_2637.html, and Visas for Employees of International Organizations and NATO, available at http://travel.state.gov/visa/temp/types/types_2638.html (last visited October 2013).
  • 10. 9 FAM 41.22 N4.4b(6).
  • 11. 9 FAM 41.22 N4.1.
  • 15. U.S. State Department, Visas for Diplomats and Foreign Government Officials, available at http://travel.state.gov/visa/temp/types/types_2637.html (last visited July 2013). Individuals who establish entitlement to an official visa classification (such as A and G) are exempt from paying visa fees.
  • 16. 9 FAM 41.21 N6.5-2 b. However, the foreign diplomats and international organization employees themselves are generally not required to personally appear for interviews as a condition to their visa application. See, e.g., 9 FAM 41.21 N3.
  • 17. 9 FAM 41.21 N4.2b (A-3 visa may not be issued “unless the visa applicant has executed a contract with the employer or prospective employer containing detailed provisions.”).
  • 18. 9 FAM 41.21 N6.5-2 b.
  • 19. 9 FAM 41.21 N6.1(b); see also 8 U.S.C. §§ 1184(b) and 1257(b) (written waiver may be required and special adjustment of status rules apply to A-3/G-5 visa holders).
  • 20. 9 FAM 41.22 N4.2a (“However, if a consular officer believes that an applicant is presented as a domestic employee for someone in A-1 or A-2 status, but will actually work as a computer consultant for a private company, then the A-3 visa should be denied.”).
  • 21. 9 FAM 41.21(d)(3).
  • 22. U.S. State Department, Nonimmigrant Visa Statistics, NIV Workload by Category, 2006-2012, available at http://www.travel.state.gov/visa/statistics/nivstats/nivstats_4582.html (June 2013). Adjusted Visa Refusal Rate = (Refusal – Overcome)/ ((Refusal-Overcome) + Issuances). See for example, U.S. State Department, Guidelines of the Visa Waiver Program, available at http://www.travel.state.gov/pdf/refusalratelanguage.pdf (June 2013). Percentages are rounded to the nearest tenth.
  • 23. 8 U.S.C. § 1375c(b)(3).
III. A-3 AND G-5 WORKERS IN THE U.S. – DATA
The exact number of A-3 and G-5 workers that are present in the United States at any give time is unknown.  Both the U.S. Department of Homeland Security and the U.S. Department of State maintain data about them.  Over the last five years, between 1,663 and 2,097 new A-3 and G-5 visas were issued annually.  This number does not count the number of workers whose periods of stay may span more than one year and are thus already in the United States. The age and gender of A-3 and G-5 workers is not published. 
 
 
 
 
A. Number of A-3 and G-5 Workers in the U.S. 
 
1. U.S. Department of Labor
The U.S. Department of Labor (USDOL) does not have any role in the administration of either the A-3 or the G-5 visa program.  As such, USDOL neither collects nor maintains data regarding the number of these domestic workers who are present in the United States.
 
2. U.S. Department of State
In 2012, the U.S. Department of State issued 1,141 new A-3 and 730 new G-5 visas.25 Since 2002, the visa numbers for both of these categories have declined dramatically.  For A-3 visas, there has been a 42% decline, and for G-5, the visa numbers have dropped by half, to 51%.
 
 
3. U.S. Department of Homeland Security
At the border or port of entry, the Customs and Border Patrol (CBP) interviews workers who have received A-3 and G-5 visas, and decides whether to grant their admission.  Unlike many of the other nonimmigrant work visa programs, the U.S. Citizenship and Immigration Services has no role in the program.  DHS annually publishes the number of admissions of nonimmigrants.26 In 2012, there were 1,553 admission events for individuals with an A-3 visa and 1,190 admissions for individuals coming on a G-5 visa.27 Each time a nonimmigrant worker enters the United States, the entry is counted as an admission. First and return entries are not distinguished; all are counted as separate admissions.28 Departures are not tracked.29
 
B. A-3 and G-5 Worker Demographics
 
1. National Origin
While most A-3 and G-5 workers consistently come to the U.S. from Asia and Africa, three of the top five countries for G-5 workers are from South America.  
 

The top five sending countries for the G-5 visa have been the same over the past five years. They are: the Philippines, Peru, Colombia, Brazil and India. 

 

For the A-3 visa, the Philippines, Sudan, Indonesia, Saudi Arabia, and India were the common sending countries for A-3 workers in 2012.  Over the last five years, however, the top five sending countries have not been stable.  For example, Sudan and Saudi Arabia each only had 2 A-3 workers in 2008.30   

Based on admissions flow, the leading sending countries are the same for the most part.31 However, A-3 workers from Mexico registered more admissions in 2012 than workers from Sudan.  This is probably because A-3 workers from neighboring Mexico are more likely to return home during the year than workers from another continent.

 
 
 
 
2. Job Location
The U.S. Department of Homeland Security publishes information about the destination states of nonimmigrants based on information gathered when A-3 and G-5 workers are admitted into the country.32   Most domestic workers are bound for the Washington D.C. and New York City metro areas, where most diplomatic missions and international organizations are based.  The five destinations receiving the largest flow of A-3 workers are the District of Columbia, New York, Virginia, California, and Maryland.  For G-5 workers, the most common destinations are New York, Virginia, Maryland, DC, and New Jersey.  
 
 
C. Employer Demographics
There is no published demographic information about employers of A-3 and G-5 domestic workers.  Workers may or may not be from the same country as their employers.  Therefore, for example, just because the largest sending country for domestic workers is the Philippines does not mean that most employers are from there as well.  Looking at the number of principal A and G visa holders from particular countries likewise provides no insight.  Based on the small number of A-3 and G-5 visas relative to the number of principals, only a small percentage of diplomats and employees of international organization employees employ domestic workers.33

IV. A-3 AND G-5 WORKERS’ RIGHTS IN THE U.S.
Federal law and U.S. Department of State guidelines mandate that visa applications for A-3 and G-5 visas include an employment contract signed by the employer and the employee that contains important worker protections regarding wages, working conditions and freedom of movement. A-3 and G-5 workers may be protected by federal and state wage and hour and discrimination laws.  However, some of those laws, such as the Fair Labor Standards Act, treat some domestic workers differently and do not offer the same range of protections afforded to other workers.34 Whether specific statutes or common law rights apply to any given worker will depend on the facts of each particular situation.  Furthermore, A-3 and G-5 workers have special problems enforcing their rights due to diplomatic immunity, which oftentimes shields their employers from criminal prosecution and civil process in U.S. courts.
 
 
 
A. Employment Contract Required 
A prospective A-3 and G-5 worker must have an employment contract with his or her employer before a visa will be granted.35 The mandatory contract must be signed by both parties and contain various terms regarding payment, work duties, weekly work hours, holidays, sick days, and vacation days.36 In addition to specific protections, the parties must make various promises in the contract.37 For example, the employer must agree to abide by all Federal, State, and local laws.38 The worker must agree to not accept any other employment while in the U.S., and the employer must explicitly state that he or she will not withhold the worker’s passport, employment contract, or other personal property.39   However, because of diplomatic immunity issues, whether and when an employment contract is enforceable depends on the particular situation.
 
1. Travel expenses paid by employer
The employer must pay the A-3 and G-5 worker’s inbound travel expenses and outbound travel back to the worker’s country of normal residence at the termination of the assignment.40
 
2. Higher of minimum or prevailing wage must be paid
The employment contract must show that A-3 and G-5 workers will be compensated at the greater of the minimum or prevailing wage.41 Even though employers are not required to seek a prevailing wage determination from the U.S. Department of Labor (USDOL), they do have to check the USDOL database that breaks down prevailing wage statistics by occupation and metropolitan area. 
 
a) Deductions prohibited 
Housing provided to A-3 and G-5 workers is for the benefit of the employer and thus it is not permissible to withhold from wages any amount for lodging.42 Neither may employers withhold wages for meals.43 Deductions from wages for any other expenses, such as the provision of medical care, medical insurance, or travel are also prohibited.44
 
b) Wages paid directly to workers
U.S. Department of State guidelines do not require that the contract specify the frequency of payment.  However, “the contract must state that after the first 90 days of employment, all wage payments must be made by check or by electronic transfer to the domestic worker’s bank account.”45 Additionally, neither the employers, nor their family members “should have access to domestic workers' bank account.”46
 
3. Recordkeeping required for three years
While the employment contract terms do not include providing wage statements to A-3 and G-5 workers, payment records must be “retained for three years after the termination of the employment in order to address any complaints that may subsequently arise.”47
 
B. A-3 and G-5 Workers and the Fair Labor Standards Act (FLSA) 
Live-in domestic workers are exempt from federal overtime requirements.48 Even so, under the FLSA, individuals who reside in the household where they work are entitled to the same minimum wage as employees who work by day.49
 
1. Counting the hours worked
The FLSA regulations do not require the employer to keep track of the number of actual hours worked by live-in domestic workers.  Rather, the employer must keep “a copy of the agreement and indicate that the employee's work time generally coincides with the agreement.”50  But, if “there is a significant deviation from the initial agreement, a separate record should be kept for that period or a new agreement should be reached that reflects the actual facts.”51
 
The amount of sleeping time, mealtime and other periods of complete freedom from all duties is generally not included as time worked. However, for periods of free time to be excluded from hours worked, the periods must be of sufficient duration to enable the employee to make effective use of the time.  If the sleeping time, meal periods or other periods of free time are interrupted by work duties, the entire on-call time must be counted as hours worked.52
 
 
 
 
 
 
 
  • 34. For example, live-in domestic workers are exempt from federal overtime requirements. See 29 U.S.C. § 213(b)(21).
  • 35. 8 U.S.C. § 1375c(b); 9 FAM 41.22 N4.4.
  • 36. Id.
  • 37. Id.
  • 38. 8 U.S.C. § 1375c(b)(2)(A).
  • 39. 8 U.S.C. § 1375c(b)(2)(C).
  • 40. 9 FAM 41.22 N4.4b(6).
  • 41. 9 FAM 41.22 N4.4b(3).
  • 42. Id.
  • 43. Id.
  • 44. Id. See also 9 FAM 41.22 N4.3(a)(4) (“Although the employer is not required to pay for medical insurance, the employer is responsible for ensuring that the employee does not become a public charge while in his or her employ.”).
  • 45. 9 FAM 41.22 N4.4b(5).
  • 46. Id.
  • 47. Id.
  • 48. 29 U.S.C. § 213(b)(21).
  • 49. 29 C.F.R. § 552.102(a).
  • 50. 29 C.F.R. § 552.102(b).
  • 51. Id.
  • 52. 29 C.F.R. § 785.23.
V. ENFORCEMENT
Even though the U.S. Department of State outlines various protections for A-3 and G-5 workers, there is no specific administrative enforcement scheme.  There is no formal complaint procedure, no ability for individual workers to sue their employers to enforce the regulations, and no anti-retaliation protection.  There is no regulatory mechanism to hold A-3 and G-5 employers liable for lost wages and benefits. Because there is no specific role for the U.S. Department of Labor in the application process, its enforcement authority with regard to A-3 and G-5 workers is almost nonexistent.  State agencies customarily will have the authority to enforce any state laws that apply.  To the extent that there is an employment contract or applicable federal or state statute allowing a private lawsuit, A-3 and G-5 workers may attempt to enforce their rights in court.  However, under the principles of diplomatic and consular immunity, many employers are protected from being sued or prosecuted in U.S. courts.  In general, though, once the employers are no longer occupying their diplomatic posts, they are no longer immune from lawsuits brought by former A-3 and G-5 workers.61
 
 
 
 
A. Diplomatic Immunity
According to the Vienna Conventions on Diplomatic and Consular Relations and U.S. law, diplomatic and consular immunity protects certain foreign nationals from being taken to court in the United States.  U.S. law directs that:
 
[a]ny action or proceeding brought against an individual who is entitled to immunity with respect to such action or proceeding under the Vienna Convention on Diplomatic Relations, under section 254b or 254c of this title, or under any other laws extending diplomatic privileges and immunities, shall be dismissed. Such immunity may be established upon motion or suggestion by or on behalf of the individual, or as otherwise permitted by law or applicable rules of procedure.62
 
This immunity exists “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.”63 High-ranking diplomats and diplomatic-level staff of missions to international organizations have virtually complete civil and criminal immunity.64 The U.S. State Department’s Office of Protocol regularly publishes a list of the diplomatic staff and their family members.  Consular employees, however, have a more limited immunity.  They are only immune from jurisdiction for “acts performed in the exercise of consular functions.”65
 
When the U.S. government wants to prosecute a criminal case against a diplomat, the U.S. Department of State can request that the foreign government waive immunity.66 In civil cases brought by individual workers, however, the U.S. Department of State usually will not get involved.  Individuals who enjoy immunity often may not even answer a complaint filed against them. If a default judgment is entered, the employer may raise a claim of immunity at that time. 
 
1. Commercial activities exception does not apply to employment of domestic workers
The Vienna Convention on Diplomatic Relations allows an exception to immunity for civil claims “relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”67 In other words, allowing cases against diplomats for commercial disputes.  However, courts have held that disputes involving the employment a domestic worker are not commercial in nature.68 Instead, “[d]ay-to-day living services. . . . are incidental to daily life.”69 Therefore, aggrieved A-3 and G-5 workers will not be able to get around their employer’s claim of immunity with this exception.70
 
2. Consular immunity limited to official duties
Employers who work for certain international organizations or consuls have more limited immunity than diplomats.  In other words, it is easier for a domestic worker’s case to proceed against them. These employers are only able to assert the defense of consular immunity where the challenged conduct is related to their official duties.71 A consul’s employment of a housekeeper, for example, is not an official act.  An A-3 worker successfully sued her employer - who was a deputy consul general from Korea – for violating various federal and state laws related to not receiving proper payment for work.72 The employer raised an immunity defense, but lost.
 
[T]he supervision and management of a domestic servant who was required to cook, clean, care for the children, and otherwise tend to the diplomat's personal affairs, but also required to assist in entertaining official guests at the diplomat's home were not “consular functions” within the meaning of the Vienna Convention.73
 
3. Residual diplomatic immunity limited to official acts
Unlike consular immunity, diplomatic immunity is generally not limited to official acts and will shield a diplomat from a lawsuit by an employee.  However, after a diplomat leaves his or her post, the key question is whether there is residual diplomatic immunity.74 This defense for former diplomats is limited to acts committed in the course of being “a member of the mission.”75 In other words, diplomats are protected from all civil and criminal cases while an acting member of a diplomatic mission, but once that mission ends, they are only immune for official acts.  Employing a domestic worker for personal in-home services is not sufficiently linked to the exercise of official functions as a diplomat.76
 
For example, a G-5 domestic worker from India was allowed to sue her former employer who had been part of the Kuwaiti diplomatic mission to the United Nations.77 After suffering years of violent abuse and wage violations, the worker left the diplomat’s home and abandoned the job.  The worker sued the employer and the court decided that the case was barred by diplomatic immunity and dismissed the case without prejudice, recognizing that it was conceivable for the worker to sue the diplomat when his mission was complete.78 After the diplomat’s family relocated to France, the worker sued him again.  The court found that the diplomat was not shielded by residual diplomatic immunity because the alleged facts clearly showed that that domestic worker met the family's private needs and was not there to assist with “mission-related functions.”79  For example:
 
Swarna worked an average of seventeen hours a day, seven days a week, cooking, cleaning, caring for Al-Awadi's children, and tending to the family's personal needs. Al-Awadi also allegedly raped Swarna. If Swarna's work for the family may not be considered part of any mission-related functions, surely enduring rape would not be part of those functions either. Although Swarna also cooked and served guests at official functions from time to time and taught other servants how to cook Kuwaiti dishes, these duties were incidental to her regular employment as Al-Awadi's personal servant.80
 
To be sure, after a diplomat’s mission is complete, there is no remaining immunity for unofficial acts.  Therefore they may be subject to lawsuits by domestic workers.81
 
 
 
 
 
 
 
B. U.S. Department of State – Suspension Authority
The Trafficking Victims Protection Act provides the U.S. Department of State with the authority to suspend the issuance of A-3 or G-5 visas for any country upon finding “credible evidence” that at least one employer has “abused or exploited” a worker and that the diplomatic mission or international organization “tolerated” such conduct.88 The duration of the suspension is such period “as the Secretary determines necessary.”89 If the agency determines that “a mechanism is in place to ensure that such abuse or exploitation does not reoccur” the suspension may be lifted.90  However, even though there have been documented cases of abuse involving diplomats from Kuwait and Tanzania, for example, the Department of State has yet to issue a suspension order.91
 
 
 
 
C. U.S. Department of Justice
 
The U.S. Department of Justice (DOJ) has encountered significant obstacles investigating and prosecuting diplomats with immunity.  Between 2005 and 2008, DOJ conducted 19 trafficking investigations on behalf of domestic workers but they did not result in any indictments against foreign diplomat.95  Subsequently, only one report has surfaced of DOJ prosecuting a criminal case against a Tanzanian World Bank economist who had partial immunity against claims brought by her G-5 visa housekeeper.96
 
D. U.S. Department of Homeland Security
The U.S. Department of Homeland Security’s (DHS) enforcement role is not directed towards A-3/G-5 worker cases in particular.  However, DHS does focus some attention on trafficking, which is all too common with A-3 and G-5 domestic workers.  For example, DHS runs a project known as the Blue Campaign.  Designed to help combat human trafficking, the awareness campaign includes multi-lingual public service announcements, billboards, newspaper advertisements, victim assistance materials, and indicator cards for law enforcement. DHS also expanded online resources, including social media, and distributed a virtual toolkit to employers in the lodging, transportation, entertainment, agricultural, manufacturing and construction industries.  
 
 
 
 
 
E. Private Litigation
A-3 and G-5 workers may file a lawsuit to enforce their rights and have their day in court just like any other U.S. workers.  A-3 and G-5 workers may enforce the terms of their employment contract, or any applicable federal or state statute, or common law claim.  A-3 and G-5 workers may have civil claims under various for unpaid minimum or overtime wages or other civil rights.98 The Trafficking Victims Protection Act allows workers to sue their “traffickers” in federal court to recover damages and fees.99 However, because diplomatic immunity shields most A-3 and G-5 employers from prosecution or civil action, the chances of practical success while the employer is in the United States are limited.  The problem of diplomatic immunity compounds the standard access to counsel issues faced by most nonimmigrant workers.  However, A-3 and G-5 workers may effectively use private litigation to enforce their rights if their employers’ immunity fades after the diplomatic mission is over.
 
1. Access to Counsel
A-3 and G-5 workers have similar access to counsel issues as other groups of nonimmigrant workers in that lawyers may not be available to take their cases due to language barriers, cultural differences and isolation in the home.  Moreover, because A-3 and G-5 workers are typically low-wage earners, the amount of money owed may be small relative to the cost and complication of litigation. Furthermore, because usually there is only one domestic worker per household, there is likely to be little chance of an attorney pursuing a collective or class action lawsuit, a course which often makes the effort more worthwhile in terms of time and cost.
 
a) Legal Services lawyers
Federally funded Legal Service Corporation (LSC) lawyers may represent individuals with an income below a certain financial level (usually 125% of the federal poverty guideline) and only certain classes of immigrants.100 In most cases individuals with A-3 and G-5 visas will not be eligible for representation by an LSC grantee because of these immigration restrictions. However, there may be an exception if the worker is a victim of domestic violence, human trafficking or another crime.101
 
2. Deferred action when enforcing civil rights
A-3 and G-5 workers who file a civil claim against their employer concerning the terms and conditions of their employment can now remain in the U.S. and work legally (with some limited exceptions) for the amount of time necessary “to fully and effectively participate in all legal proceedings related to such action.”102   This right to deferred action and employment authorization for aggrieved A-3 and G-5 workers was created by the 2008 reauthorization of the Trafficking Victims Protection Act.103 However, the right does not just apply when trafficking is alleged.  Rather, it applies in any civil case the worker brings against his or her employer alleging violations of employment terms.104   If the A-3 or G-5 worker does not pursue claims against their former employer, the government may terminate his or her lawful immigration status.105
 
 
 
 
  • 61. Martina Vandenberg and Alexandra Levy, Human Trafficking and Diplomatic Immunity: Impunity No More, 7 Intercultural Hum. Rts. L. Rev. 77, 79-81 (2012) (“It is now possible to hold diplomats accountable. It only takes competent counsel and a significant amount of time.”).
  • 62. 22 U.S.C. § 254d.
  • 63. Vienna Convention pmbl. cl. 4. See also 767 Third Ave. Assocs. v. Permanent Mission of the Republic of Zaire, 988 F.2d 295, 300 (2d Cir. 1993) (“[M]odern international law has adopted diplomatic immunity under a theory of functional necessity.”).
  • 64. Vienna Convention on Diplomatic Relations, Art. 31(1), Apr. 18, 1961, 23 U.S.T. 3227; International Organizations Immunities Act, 22 U.S.C. § 2881.
  • 65. Vienna Convention on Consular Relations, Art. 43(1), Apr. 24, 1963, 21 U.S.T. 77.
  • 66. 2 FAM 232.5.
  • 67. Vienna Convention on Diplomatic Relations, Art. 31(1)(c).
  • 68. See, e.g., Tabion v. Mufti, 73 F.3d 535, 538-39 (4th Cir. 1996); Gonzalez Paredes v. Vila, 479 F. Supp. 2d 187 (D.D.C. 2007).
  • 69. Id.
  • 70. Id.
  • 71. 2 FAM 232.2 and 232.3(b), Immunities and Liabilities of Foreign Representatives and Officials of International Organizations in the United States, (Dec. 14, 2006) available at http://www.state.gov/documents/organization/84395.pdf.
  • 72. Park v. Shin, 313 F.3d 1138 (9th Cir. 2002).
  • 73. Id. at 1143.
  • 74. Martina Vandenberg and Alexandra Levy, Human Trafficking and Diplomatic Immunity: Impunity No More, 7 Intercultural Hum. Rts. L. Rev. 77, 79-81, 90-91 (2012).
  • 75. Vienna Convention on Diplomatic Relations, Art. 39(2).
  • 76. Id. Compare Brzak v. United Nations, 597 F.3d 107, 113 (2d Cir. 2010) (U.N. officials qualified for residual immunity under the Vienna Convention on Consular Relations against alleged acts of sex discrimination, retaliation, the intentional infliction of emotional distress because they were “personnel management decisions falling within the ambit of the [U.N. officials'] professional responsibility” in the course of office management).
  • 77. Swarna v. Al-Awadi 622 F.3d 123 (2d Cir. 2010).
  • 78. Id. at 130 (noting that in that first case, when the defendant was served, “he was employed as a diplomat by the Kuwait Mission and therefore was entitled to diplomatic immunity. The court dismissed the case without prejudice because Swarna could plausibly institute a new action against the individual defendants-“if she can locate them”-after their association with the Kuwaiti Mission had terminated.”)
  • 79. Id. at 135-38.
  • 80. Id. at 138.
  • 81. See also Baonan v. Baja, 627 F.Supp.2d 155 (S.D.N.Y. 2009) (finding no residual immunity for former member of the Philippines diplomatic mission to the United Nations; former G-5 worker’s lawsuit for forced labor and minimum wage violations survived motion to dismiss).
  • 88. 8 U.S.C. § 1375c(a)(2); 9 FAM 41.21 N6.6.
  • 89. Id.
  • 90. 8 U.S.C. § 1375c(a)(3).
  • 91. U.S. State Department, Trafficking in Persons Report 2010, at 343, available at http://www.state.gov/documents/organization/142984.pdf.
  • 95. GAO-08-892 at 12.
  • 96. Strauss-Kahn case raises issue of abuse by diplomats in the U.S., (May 19, 2010), available at http://www.reuters.com/article/2011/05/18/us-strausskahn-diplomats-idUST....
  • 98. See, e.g., New York Department of Labor, Domestic Workers’ Bill of Rights, available at http://www.labor.ny.gov/sites/legal/laws/domestic-workers-bill-of-rights... (as of 2010, domestic workers in New York have enhanced protections, including a statutorily-defined workweek of eight hours per day and 44 hours per week for live-in workers, time-and-a-half overtime pay, at least three vacation days each year, temporary disability benefits and opportunities to raise claims involving discrimination and sexual harassment).
  • 99. 18 U.S.C. §§ 1595, 1589.
  • 100. See 45 C.F.R. Part 1611 (Financial Eligibility) and Part 1626 (Restrictions on Legal Assistance to Aliens).
  • 101. Legal Services Corporation Program Letter 05-2 (Oct. 6, 2005), available at http://www.lsc.gov/sites/default/files/Grants/pdfs/Progltr05-2.pdf.
  • 102. 8 U.S.C. § 1375c(c)(1), (2).
  • 103. Martina Vandenberg and Alexandra Levy, Human Trafficking and Diplomatic Immunity: Impunity No More, 7 Intercultural Hum. Rts. L. Rev. 77, 96-97 (2012).
  • 104. 8 U.S.C. § 1375c(c)(1), (2) (applies to A-3/G-5 workers with regard to civil actions alleging “a violation of any of the terms contained in the contract or violation of any other Federal, State, or local law in the United States governing the terms and conditions of employment”).
  • 105. 8 U.S.C. § 1375c(c)(1)(C).
VI. A-3 AND G-5 WORKERS – ISSUES
As the U.S. Department of State has noted, the U.S. does not “offer protection to domestic workers under prevailing labor laws, [instead] perceiving their work as something other than regular employment.”107 Furthermore, many individuals legitimately fear retaliation if they complain about working conditions.  Compounding the problem, they have relatively few effective legal options to hold foreign diplomats accountable.  A-3 and G-5 workers cannot raise many of the traditional federal remedies open to other low-wage workers in the U.S. due in part to diplomatic immunity and various exemptions in federal employment and civil rights law.  Unfortunately, the Department of State, the only agency charged with overseeing the A-3 and G-5 programs, apparently has neither wherewithal nor desire to enforce the rights of even the most abused workers.
 
 
A. History of Abuse
The abuse of domestic workers brought to the U.S. on A-3/G-5 visas has been an open concern for decades.  In 1996, the Department of State announced concern about continuing problems with diplomat employers who underpay wages, confiscate passports, and even imprison workers.108 Since then, numerous independent investigations have uncovered cases where A-3 and G-5 workers suffer unpaid wages, intimidation, retaliation, sexual harassment, and even violence.109 For example, an in-depth Human Rights Watch report found that employers routinely did not adhere to signed contracts, underpaid their workers, and often confiscated their passports.  The U.S. Government Accountability Office documented 42 cases of abuse over the course of an eight year period and noted “a striking power imbalance because workers often are poor, uneducated, and fear retaliation, not only against themselves but also against family members in their home country.”110 Indeed, exploited domestic workers often fear reporting their diplomat and international employers to the authorities.111
 
B. Trafficking
There are numerous examples of A-3 and G-5 trafficking cases brought against former employers.112 For example, one worker received a million dollar default judgment in a case brought against her Tanzanian diplomat–employer for subjecting her to involuntary servitude and forced labor.113  In another trafficking case that was settled in 2012, three women from India sued their diplomat employers from Kuwait, claiming that they were forced to work more than 18 hours per day for just $250 to $350 a month.114 Their passports were confiscated, they were subject to threats and verbal and physical abuse, and they were not allowed time to eat or use the bathroom.115 In another trafficking lawsuit from in 2012, a Bolivian former G-5 worker sued her employer (a dual Bolivian and German citizen) who worked at the World Bank.  The worker’s passport was confiscated.  She was forced to work for nearly three years receiving very little pay and was threatened when she asked about her wages.116
 
 
 
 
C. Displacement of U.S. Workers
The regulations do not set up any system to evaluate whether A-3 and G-5 workers will displace U.S. workers.127 Neither the Department of State, nor the employers are required to consult with the U.S. Department of Labor, conduct a labor market test, recruit U.S. workers, or circulate job offers through the interstate clearance order system, like with other temporary nonimmigrant work programs (such as under the various H programs). 
  • 107. U.S. State Department, 2010 Trafficking in Persons Report, p.32.
  • 108. U.S. State Department, Circular Diplomatic Note, at 5 (May 20, 1996), available at http://www.state.gov/documents/organization/32298.pdf.
  • 109. See, e.g., Brian Grow, Reuters, Strauss-Kahn case raises issue of abuse by diplomats in the U.S., Reuters (May 19, 2010) available at http://www.reuters.com/article/2011/05/18/us-strausskahn-diplomats-idUST... (examining several of the 11 civil cases and one criminal case concerning abuse of domestic workers brought against foreign diplomats from 2005 to 2010); Washington Post, Diplomatic Immunity at Issue in Domestic-Worker Abuse Cases (Sept. 20, 2009) available at http://www.washingtonpost.com/wp-dyn/content/article/2009/09/19/AR200909... E. Keyes, Casa of Maryland and the Battle Regarding Human Trafficking and Domestic Workers’ Rights, 7 U. Md. L.J. Race, Religion, Gender & Class 14, (May 14, 2008) available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1025... A. Bernhardt, S. McGrath, & J. DeFilippis, Unregulated Work in the Global City: Employment and Labor Law Violations in New York City (2007), available at http://www.brennancenter.org/dynamic/subpages/download_file_49436.pdf; Montgomery County Council, Working Conditions of Domestic Workers in Montgomery County, Maryland (2006) available at http://www.montgomerycountymd.gov/content/council/pdf/REPORTS/domestic_w... (domestic workers not paid overtime in violation of local law); Domestic Workers United and DataCenter, Home is Where the Work Is: Inside New York’s Domestic Work Industry, at 21, (July 14, 2006) available at http://www.domesticworkersunited.org/media/files/266/homeiswheretheworki... (survey of New York City domestic workers revealed that 48% of live-in workers reported at least one type of abusive behavior by their employer in the past twelve months, and of those workers 37% described abuse such as yelling, threatening, or insults, and 1% reported physical abuse by their employers).
  • 110. U.S. Government Accountability Office, U.S. Government‘s Efforts To Address Alleged Abuse Of Household Workers By Foreign Diplomats with Immunity Could Be Strengthened, GAO-08-892, at 17 (July 29, 2008) available at http://www.gao.gov/new.items/d08892.pdf
  • 111. Oppressed Nannies: State Department Orders Embassies to Clean up Their Act, The Washington Diplomat (2010) (noting that “many incidents of abuse by foreign diplomats here likely remain unreported because their victims are too frightened or intimidated to complain, especially because diplomatic immunity is involved”).
  • 112. See, e.g., Kiwanuka v. Bakilana, 833 F. Supp. 107 (D.D.C. 2012) (Tanzanian G-5 worker sued World Bank employer). See also Martina Vandenberg and Alexandra Levy, Human Trafficking and Diplomatic Immunity: Impunity No More, 7 Intercultural filed against diplomatic employers since 1999.
  • 113. Mazengo v. Mzengi, 542 F. Supp. 2d 96, 97–98, 100 (D.D.C. 2008).
  • 114. American Civil Liberties Union, Domestic Workers Who Accused Diplomats of Human Trafficking Settle With Kuwaiti Government, Press Release (February 15, 2012), available at https://www.aclu.org/womens-rights/domestic-workers-who-accused-diplomat...
  • 115. Sabbithi, et al., v. Al Saleh, et al., Complaint and Jury Demand, Case No. 07-CV-00115 (D.D.C. filed Jan. 17, 2007), available at https://www.aclu.org/files/images/humanrights/asset_upload_file802_28028....
  • 116. Carazani v. Zegarra, Complaint (http://www.npr.org/templates/story/story.php?storyId=7626754), Case No. 1:12-cv-00107-CKK (D.D.C. filed Jan. 23, 2012).
  • 127. Compare 8 C.F.R. §§ 214.2(a)(5)(ii)(D) and (g)(5)(ii)(D) (One condition of employment authorization for some A and G dependents is that the proposed employment is not “in an occupation determined by the Department of Labor to be one for which there is an oversupply of qualified U.S. workers in the area of proposed employment.”). While some family members of diplomats may not displace U.S. workers, there is no such prohibition for A-3 and G-5 domestic workers.

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