Human Rights
U.S. Government's Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened Gao ID: GAO-08-892 July 29, 2008In 2007, the Department of State (State) reported that some foreign diplomats may be abusing the household workers they brought to the United States on A-3 or G-5 visas. GAO was asked to (1) determine the number of A-3 or G-5 visa holders who have alleged abuse by foreign diplomats with immunity since 2000, (2) review the U.S. government's process for investigating these allegations, and (3) assess how State ensures that its policies for issuing A-3 and G-5 visas are implemented correctly and consistently. GAO analyzed documents, interviewed officials, and conducted fieldwork at four consular posts that issue large numbers of A-3 or G-5 visas.
GAO identified 42 household workers with A-3 or G-5 visas who alleged that they were abused by foreign diplomats with immunity from 2000 through 2008, but the total number is likely higher. The total number of alleged incidents since 2000 is likely higher for four reasons: household workers' fear of contacting law enforcement, nongovernmental organizations' protection of victim confidentiality, limited information on some cases handled by the U.S. government, and federal agencies' challenges identifying cases. For example, State has several offices that receive allegations of abuse by foreign diplomats, but no single office maintains information on all allegations. The U.S. government's process for investigating alleged abuse of household workers by foreign diplomats is complicated by three factors. First, immunity can pose constraints for law enforcement in collecting evidence. Second, the status of foreign diplomats can heighten their workers' sense of vulnerability, causing the workers to fear cooperating with investigators. Third, the length of time it takes to obtain a legal opinion from State on the permissibility of using certain investigative techniques can hamper investigations. According to State, although some techniques are clearly prohibited by international law (such as searching certain diplomats' residences), the permissibility of others under international law is less clear. In advising on the use of investigative techniques, State considers legal and policy issues, such as reciprocity--assessing how U.S. diplomats abroad might be affected by actions taken toward a foreign diplomat on U.S. soil. State may ask Justice to provide information to help determine the permissibility of certain techniques, but the process of obtaining this information can be difficult and time consuming for Justice. Although both State and Justice have discussed creating a process to avoid delays, no formal actions have, thus far, been taken to establish one. Weaknesses exist in State's process for ensuring correct and consistent implementation of policies and procedures for issuing A-3 and G-5 visas. GAO's review of employment contracts submitted at four consular posts by A-3 and G-5 visa applicants showed that they often did not include State's required components, such as a guarantee of the minimum or prevailing wage. GAO also found that officers at the four posts were unclear about or unfamiliar with certain aspects of State's guidance. Few of the officers were aware that they should inform A-3 and G-5 visa applicants of their rights under U.S. law during their interview. Some officers at the four posts also were uncertain about the reasons for refusing A-3 or G-5 visas. State is considering adding provisions to its guidance that would more clearly stipulate reasons for refusing these visas, such as if an A-3 or G-5 applicant seeks to work for a foreign diplomat who is linked to a pattern of employee disappearance, abuse allegations, or other irregularities. However, State has not reached internal agreement on these provisions and has set no timetable for doing so. State headquarters officials said they rely on individual posts to monitor implementation of A-3 and G-5 visa policies and procedures and do not routinely assess posts' compliance
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Director: Team: Phone:GAO-08-892, Human Rights: U.S. Government's Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened
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Report to the Subcommittee on Human Rights and the Law, Committee on
the Judiciary, U.S. Senate:
United States Government Accountability Office:
GAO:
July 2008:
Human Rights:
U.S. Government's Efforts to Address Alleged Abuse of Household Workers
by Foreign Diplomats with Immunity Could Be Strengthened:
Human Rights:
GAO-08-892:
GAO Highlights:
Highlights of GAO-08-892, a report to the Subcommittee on Human Rights
and the Law, Committee on the Judiciary, U.S. Senate.
Why GAO Did This Study:
In 2007, the Department of State (State) reported that some foreign
diplomats may be abusing the household workers they brought to the
United States on A-3 or G-5 visas. GAO was asked to (1) determine the
number of A-3 or G-5 visa holders who have alleged abuse by foreign
diplomats with immunity since 2000, (2) review the U.S. government‘s
process for investigating these allegations, and (3) assess how State
ensures that its policies for issuing A-3 and G-5 visas are implemented
correctly and consistently. GAO analyzed documents, interviewed
officials, and conducted fieldwork at four consular posts that issue
large numbers of A-3 or G-5 visas.
What GAO Found:
GAO identified 42 household workers with A-3 or G-5 visas who alleged
that they were abused by foreign diplomats with immunity from 2000
through 2008, but the total number is likely higher. The total number
of alleged incidents since 2000 is likely higher for four reasons:
household workers‘ fear of contacting law enforcement, nongovernmental
organizations‘ protection of victim confidentiality, limited
information on some cases handled by the U.S. government, and federal
agencies‘ challenges identifying cases. For example, State has several
offices that receive allegations of abuse by foreign diplomats, but no
single office maintains information on all allegations.
The U.S. government‘s process for investigating alleged abuse of
household workers by foreign diplomats is complicated by three factors.
First, immunity can pose constraints for law enforcement in collecting
evidence. Second, the status of foreign diplomats can heighten their
workers‘ sense of vulnerability, causing the workers to fear
cooperating with investigators. Third, the length of time it takes to
obtain a legal opinion from State on the permissibility of using
certain investigative techniques can hamper investigations. According
to State, although some techniques are clearly prohibited by
international law (such as searching certain diplomats‘ residences),
the permissibility of others under international law is less clear. In
advising on the use of investigative techniques, State considers legal
and policy issues, such as reciprocity”assessing how U.S. diplomats
abroad might be affected by actions taken toward a foreign diplomat on
U.S. soil. State may ask Justice to provide information to help
determine the permissibility of certain techniques, but the process of
obtaining this information can be difficult and time consuming for
Justice. Although both State and Justice have discussed creating a
process to avoid delays, no formal actions have, thus far, been taken
to establish one.
Weaknesses exist in State‘s process for ensuring correct and consistent
implementation of policies and procedures for issuing A-3 and G-5
visas. GAO‘s review of employment contracts submitted at four consular
posts by A-3 and G-5 visa applicants showed that they often did not
include State‘s required components, such as a guarantee of the minimum
or prevailing wage. GAO also found that officers at the four posts were
unclear about or unfamiliar with certain aspects of State‘s guidance.
Few of the officers were aware that they should inform A-3 and G-5 visa
applicants of their rights under U.S. law during their interview. Some
officers at the four posts also were uncertain about the reasons for
refusing A-3 or G-5 visas. State is considering adding provisions to
its guidance that would more clearly stipulate reasons for refusing
these visas, such as if an A-3 or G-5 applicant seeks to work for a
foreign diplomat who is linked to a pattern of employee disappearance,
abuse allegations, or other irregularities. However, State has not
reached internal agreement on these provisions and has set no timetable
for doing so. State headquarters officials said they rely on individual
posts to monitor implementation of A-3 and G-5 visa policies and
procedures and do not routinely assess posts‘ compliance.
What GAO Recommends:
GAO recommends that the Secretary of State (1) collect and main records
on allegations of household worker abuse by foreign diplomats, (2)
establish a system alerting consular officers to seek guidance before
issuing an A-3 or G-5 visa to an individual applying to work for a
foreign diplomat who may have abused workers, and (3) spot-check
compliance with A-3 and G-5 visa policies and procedures. GAO also
recommends that the Secretaries of State and Homeland Security and the
Attorney General outline a process for determining which specific
techniques can be used when investigating foreign diplomats. State and
the Departments of Justice and Homeland Security concurred with the
recommendations addressed to them.
To view the full product, including the scope and methodology, click on
[http://www.gao.gov/cgi-bin/getrpt?GAO-08-892]. For more information,
contact Thomas Melito at (202) 512-9601 or melitot@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
42 A-3 and G-5 Visa Holders Have Alleged Abuse Since 2000; Total Number
of Alleged Incidents Is Likely Higher:
Three Factors Complicate Investigations of Abuse by Foreign Diplomats:
Weaknesses Exist in Implementation and Oversight of A-3 and G-5 Visa
Policies and Procedures:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: U.S. Government Agencies' Primary Responsibilities Related
to Foreign Diplomats and A-3 and G-5 Visa Holders:
Appendix III: Diplomatic and Consular Privileges and Immunities from
Criminal and Civil Jurisdiction:
Appendix IV: Comments from the Department of State:
Appendix V: Comments from the Department of Justice:
Appendix VI: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Relevant Responsibilities of State Department Bureaus and
Offices:
Table 2: Federal Departments with Primary Investigative and
Prosecutorial Responsibilities:
Table 3: Diplomatic and Consular Privileges and Immunities from
Criminal and Civil Jurisdiction:
Figures:
Figure 1: Number of A3 and G-5 Visas Issued Abroad, Fiscal Years 2000
to 2007:
Figure 2: Overseas Posts that Issued the Most A-3 and G-5 Visas, Fiscal
Years 2000 to 2007:
Abbreviations:
AUSA: Assistant United States Attorney:
CIS: Citizenship and Immigration Services:
CRT/CS: Civil Rights Division/Criminal Section:
FBI: Federal Bureau of Investigation:
Homeland Security: Department of Homeland Security:
ICE: Immigration and Customs Enforcement:
Justice: Department of Justice:
Labor: Department of Labor:
NGO: nongovernmental organization:
State: Department of State:
TOMIS: The Office of Foreign Missions Information System:
USUN: U.S. Mission to the United Nations:
United States Government Accountability Office:
Washington, DC 20548:
July 29, 2008:
The Honorable Richard Durbin:
Chairman:
The Honorable Tom Coburn, MD:
Ranking Member:
Subcommittee on Human Rights and the Law:
Committee on Judiciary:
United States Senate:
In June 2007, the Department of State (State) noted in its annual
Trafficking in Persons report that some foreign diplomats[Footnote 1]
may have abused individuals they had brought to the United States to
work in their households. State again highlighted this problem in a
July 2007 note to all Chiefs of Diplomatic Missions in the United
States, stating that it had recently learned of a number of allegations
of trafficking in persons[Footnote 2] with respect to household
workers, including allegations of involuntary servitude and physical
abuse. A few of these cases have garnered congressional and media
attention, particularly because the accused foreign diplomats held full
diplomatic immunity[Footnote 3] and thus could not be prosecuted in
U.S. courts. For example, in 2002, a household worker accused her
employers, a high-ranking diplomat and his wife, of verbally,
physically, and sexually abusing her. She also alleged that they
required her to work 16 to 17-hour days without any payment and
prohibited her from leaving the home unaccompanied. She filed a civil
lawsuit against her employers, but because they held full diplomatic
immunity, the case was dismissed. The diplomat and his wife have since
left the United States.[Footnote 4] While this alleged incident
involved a potential violation of U.S. antitrafficking laws, abuse
allegations by household workers against foreign diplomats have ranged
from potential wage and hour violations to involuntary servitude. For
the purposes of this report, we will use the term abuse to include all
such allegations.
Most of the household workers brought to the United States by foreign
diplomats arrive with A-3 visas--as employees of officials from foreign
embassies, consulates, or governments--or with G-5 visas--as employees
of foreign officials for international organizations, such as the
United Nations or the World Bank.[Footnote 5] On average, almost 3,500
individuals enter the United States each year on A-3 and G-5 visas.
Several U.S. government agencies are involved in efforts to respond to
alleged abuse of these visa holders. State grants A-3 and G-5 visas,
issues guidance on diplomatic law, and maintains official records
regarding the status and immunity level of foreign diplomats in the
United States, among other things. The Department of Justice (Justice)
investigates trafficking allegations and prosecutes violations of
criminal statutes. The Department of Homeland Security (Homeland
Security) investigates trafficking allegations and grants T visas to
some trafficking victims. These visas allow victims to remain in the
United States for up to 4 years, file for permanent residence, and
receive certain government services through the Department of Health
and Human Services. The Department of Labor (Labor) investigates
allegations of wage and hour violations.
In response to your request, we (1) sought to determine how many A-3
and G-5 visa holders have alleged abuse by foreign diplomats with
immunity since 2000, (2) reviewed the U.S. government's process for
investigating abuse allegations involving foreign diplomats with
immunity, and (3) described and assessed how State ensures correct and
consistent implementation of A-3 and G-5 visa policies and procedures.
To determine how many A-3 and G-5 visa holders have alleged abuse by
foreign diplomats with immunity, we interviewed U.S. government
officials and analyzed data provided by these officials on alleged
incidents that they have handled. We requested data on alleged
incidents that occurred from calendar years 2000 through 2008. We also
met with representatives of 10 nongovernmental organizations (NGOs)
that provide services to alleged victims of abuse by foreign diplomats
and analyzed data they provided on allegations. In addition, we
conducted legal research to identify relevant civil lawsuits. To review
the U.S. government's process for investigating allegations, we
analyzed State's policies for handling allegations of criminal activity
by foreign diplomats and interviewed U.S. government officials. To
describe and assess how State ensures correct and consistent
implementation of A-3 and G-5 visa policies and procedures, we analyzed
State's guidance and requirements for adjudicating these visas, and
interviewed State officials. We also met with consular officers and
reviewed A-3 and G-5 visa files at the U.S. embassies in Peru, the
Philippines, Qatar, and Saudi Arabia. We assessed the reliability of
data analyzed and found them to be sufficiently reliable for purposes
of this report. We conducted this performance audit between October
2007 and July 2008 in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform
the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objectives.
(App. I provides a detailed discussion of our objectives, scope, and
methodology.)
Results in Brief:
We identified 42 distinct A-3 and G-5 visa holders who alleged that
they were abused by foreign diplomats with some level of immunity from
2000 through 2008, but the total number of alleged incidents is likely
higher. The 42 alleged incidents we confirmed include those identified
by federal agencies, NGOs, and legal sources, such as Westlaw. Ten of
these alleged incidents resulted in federal human trafficking
investigations, most of which remain open. In one instance, Justice
determined through its investigation that, absent immunity, it would
indict the foreign diplomat's wife. However, the diplomat's home
government declined to waive the wife's immunity; thus, Justice could
not indict. The diplomat and his wife subsequently left the United
States. The total number of alleged incidents of household worker abuse
by foreign diplomats with some level of immunity is likely higher than
the 42 distinct alleged incidents we have identified for four reasons:
household workers' fear of contacting law enforcement authorities,
NGOs' need to maintain client confidentiality, limited information on
some allegations handled by the U.S. government, and federal agencies'
difficulties in tracking household worker abuse allegations and
investigations involving foreign diplomats. For example, the Foreign
Affairs Manual [Footnote 6] states that several offices and bureaus
within State will provide the Office of Protocol and the Office of the
Legal Adviser with reports on all cases that come to their attention,
but we found that these offices were not aware of all cases that had
been handled by the department. In addition, law enforcement agencies
were unable to search their case management databases for
investigations involving foreign diplomats because these databases are
not designed to track investigations in this manner.
The U.S. government's process for investigating allegations of abuse by
foreign diplomats is complicated by three factors: (1) constraints
imposed by immunity, (2) household workers' heightened vulnerabilities
due to their employers' status, and (3) the length of time it takes for
Justice to obtain State's opinion on the use of certain investigative
techniques in trafficking investigations involving individuals with
varying degrees of immunity and inviolability. Law enforcement's
ability to investigate foreign diplomats is limited, particularly if
the subject has full immunity or inviolable premises are involved.
Diplomats with full immunity have the highest degree of privileges and
immunities. They are considered "personally inviolable" and cannot be
detained. In addition, their residences are inviolable and cannot be
entered or searched without their consent. These limitations are
particularly challenging because abuse of household workers typically
takes place in the employer's residence and often is not witnessed by
individuals outside the employer's family. Furthermore, the victims may
not cooperate out of fear that the employers will use their political
status and connections to harm them or their families or that they will
be deported if they leave their employment situations. Finally, while
Justice consults with State to identify investigative techniques that
can be used when foreign diplomats have immunity, some recent
consultations have taken several months because, according to State and
Justice officials, they raised unprecedented questions. Law enforcement
officials told us that these lengthy consultations can hamper
investigations. Justice would like for State to clarify which
techniques are not legally permissible when the subject of the
investigation has full or partial immunity but, according to State
officials, State prefers to handle these investigations on a case-by-
case basis so that it can consider fully the legal and policy
implications of each case. State considers the extent to which its
opinion on the permissibility of a given technique could be defended
legally. State also reviews each case through the lens of reciprocity-
-assessing how U.S. diplomats abroad might be affected by actions taken
toward a foreign diplomat on U.S. soil. While Justice and State agree
that it would be helpful to outline an interagency process for
communicating in a timely manner about the use of investigative
techniques in these cases, they have, thus far, not taken any formal
steps to create one.
At the four consular posts we visited, we found weaknesses in State's
process for ensuring that its policies for issuing A-3 and G-5 visas
are implemented correctly and consistently, and some consular officers
were unfamiliar with or unclear about aspects of guidance relating to
these visas. Our review of employment contracts submitted by A-3 and G-
5 visa applicants at the posts we visited showed that, in many cases,
they did not include some or all of the criteria required in the
Foreign Affairs Manual, such as a guarantee that the employee will
receive the minimum or prevailing wage (whichever is greater).[Footnote
7] Some consular officers we spoke with also were unaware of or unclear
about aspects of State's general guidance on A-3 and G-5 visas. For
example, several consular officers did not know that, according to
State guidance, they should keep electronically scanned copies of the
employment contracts on file. Consular officers also were uncertain
about the reasons for refusing A-3 or G-5 visas. State's guidance
directs consular officers to determine that A-3 and G-5 visa applicants
are entering into true employer-employee relationships, in accordance
with required terms of their personal employment contracts, but does
not explicitly state whether concerns about abuse or mistreatment are
sufficient grounds on which to refuse an A-3 or G-5 visa. At one post,
officers told us that they can refuse an A-3 or G-5 visa if they
believe that the worker may not be treated well. However, officers at
two other posts said that it can be very difficult to refuse an A-3 or
G-5 visa, even if they believe that the worker will be underpaid or
treated poorly, particularly if they lack hard evidence that an
applicant has been or could be mistreated. State headquarters officials
currently do not alert consular officers if they have information
linking a particular foreign diplomat to a pattern of abuse
allegations. State is considering steps to clarify its guidance, such
as directing consular officers to refuse A-3 or G-5 visas if there is a
pattern of past alleged abuse by a particular diplomat, but has not set
a time frame for doing so. In addition, State headquarters does not
exercise oversight by periodically assessing compliance with A-3 and G-
5 visa policies and procedures, but instead relies on individual posts
to do so.
In this report, we recommend that the Secretary of State (1) emphasize
to the relevant bureaus and offices the importance of the Foreign
Affairs Manual requirement to report all cases that come to their
attention and create a system for collecting and maintaining records on
these cases, (2) work with the Attorney General of the United States
and the Secretary of Homeland Security to establish an interagency
process outlining agreed-upon policies and time frames for determining
which investigative techniques can be used in trafficking
investigations involving foreign diplomats, (3) establish a system
alerting consular officers to seek guidance from State headquarters
before issuing A-3 or G-5 visas to applicants whose prospective
employers may have abused their household workers in the past, and (4)
enhance oversight by establishing a monitoring system to spot-check
compliance with A-3 and G-5 visa policies and procedures.
The Departments of State and Justice provided written comments on a
draft of our report, which are reprinted in appendixes IV and V,
respectively.
State concurred with all four of our recommendations. Regarding the
first recommendation, State indicated that it will emphasize to the
relevant bureaus and offices the importance of reporting promptly and
fully all cases of alleged abuse. State also noted that the Office of
Protocol has begun creating a system for collecting and maintaining
centralized records on these cases. With regard to our second
recommendation, State noted that it will be useful to establish a
process to address novel and difficult questions regarding
investigative techniques. In response to our third recommendation,
State said that it will proactively "watch-list" known abusers in its
Consular Lookout and Support System and will soon provide consular
officers improved information regarding A-3 and G-5 cases. Finally,
State acknowledged the need for better compliance with A-3 and G-5 visa
policies and procedures and agreed to consider our fourth
recommendation to spot-check compliance from headquarters.
Justice agreed with our findings and concurred with our second
recommendation, noting that agreeing upon time frames for deciding on
the use of investigative techniques is particularly important.
In addition, State, Justice, and Homeland Security provided technical
comments on a draft of our report, which we incorporated as
appropriate. For example, Homeland Security asked to be included in our
second recommendation, which initially was directed to the Secretary of
State and the Attorney General. We agreed to amend the recommendation
accordingly.
The Departments of Labor and Health and Human Services chose not to
comment on the draft report.
Background:
Each year, State issues A-3 and G-5 visas to individuals whose
employers are foreign diplomats on official purposes in the United
States.[Footnote 8] Most of these individuals are hired to work for
foreign diplomats in the District of Columbia, Maryland, New York, or
Virginia. For fiscal years 2000 through 2007, 207 U.S. embassies and
consular posts overseas issued 10,386 A-3 visas and 7,522 G-5 visas.
The number of A-3 visas decreased[Footnote 9] during this period by
about 56 percent--from 1,780 in fiscal year 2000 to 999 in fiscal year
2007--and the number of G-5 visas issued increased by 21 percent--from
877 in fiscal year 2000 to 1,057 in fiscal year 2007 (see fig. 1).
Figure 1: Number of A3 and G-5 Visas Issued Abroad, Fiscal Years 2000
to 2007:
This figure is a combination of two bar graphs showing the number of A3
and G-5 visas issued abroad, fiscal years 2000 to 2007. The X axis
represents the fiscal year, and the Y axis on one graph represents the
number of A-3 visas and on the other graph represents number of G-5
visas issued.
Graph #1:
Fiscal year: 2000;
Number of A-3 visas issued: 1,780.
Fiscal year: 2001;
Number of A-3 visas issued: 1,549.
Fiscal year: 2002;
Number of A-3 visas issued: 1,308.
Fiscal year: 2003;
Number of A-3 visas issued: 1,253.
Fiscal year: 2004;
Number of A-3 visas issued: 1,255.
Fiscal year: 2005;
Number of A-3 visas issued: 1,227.
Fiscal year: 2006;
Number of A-3 visas issued: 1,015.
Fiscal year: 2007;
Number of A-3 visas issued: 999.
Graph #2:
Fiscal year: 2000;
Number of G-5 visas issued: 877.
Fiscal year: 2001;
Number of G-5 visas issued: 865.
Fiscal year: 2002;
Number of G-5 visas issued: 729.
Fiscal year: 2003;
Number of G-5 visas issued: 1,115.
Fiscal year: 2004;
Number of G-5 visas issued: 946.
Fiscal year: 2005;
Number of G-5 visas issued: 997.
Fiscal year: 2006;
Number of G-5 visas issued: 936.
Fiscal year: 2007;
Number of G-5 visas issued: 1,057.
[See PDF for image]
Source: GAO analysis of State data.
[End of figure]
Figure 2 shows the 10 posts that issued the most A-3 and G-5 visas,
combined, for fiscal years 2000 through 2007. These 10 posts issued 40
percent of the total number of A-3 and G-5 visas issued during this
period. Manila issued the most A-3 and G-5 visas, accounting for almost
10 percent of the total number of these visas issued overseas during
this period.
Figure 2: Overseas Posts that Issued the Most A-3 and G-5 Visas, Fiscal
Years 2000 to 2007.
This figure is a graph of overseas posts that issued the most A-3 and G-
5 visas, fiscal years 2000 to 2007. The X axis represents the post, and
the Y axis represents the A-3 and G-5 issued.
Manila, Philippines;
Percentage of total at overseas posts: 9.9%;
A-3 and G-5 total visas issued: 1,775;
G-5 visas issued: 904;
A-3 visas issued: 871.
Lima, Peru;
Percentage of total at overseas posts: 5.3%;
A-3 and G-5 total visas issued: 956;
G-5 visas issued: 675;
A-3 visas issued: 281.
Jakarta, Indonesia;
Percentage of total at overseas posts: 5.1%;
A-3 and G-5 total visas issued: 910;
G-5 visas issued: 173;
A-3 visas issued: 737.
Bogota, Columbia;
Percentage of total at overseas posts: 4.3%;
A-3 and G-5 total visas issued: 778;
G-5 visas issued: 36;
A-3 visas issued: 742.
Casablanca, Morocco;
Percentage of total at overseas posts: 3.0%;
A-3 and G-5 total visas issued: 531;
G-5 visas issued: 322;
A-3 visas issued: 209.
Abu Dhabi, United Arab Emirates;
Percentage of total at overseas posts: 2.9%;
A-3 and G-5 total visas issued: 528;
G-5 visas issued: 206;
A-3 visas issued: 322.
Riyadh, Saudi Arabia;
Percentage of total at overseas posts: 2.8%;
A-3 and G-5 total visas issued: 509;
G-5 visas issued: 22;
A-3 visas issued: 487.
Doha, Qatar;
Percentage of total at overseas posts: 2.0%;
A-3 and G-5 total visas issued: 502;
G-5 visas issued: 38;
A-3 visas issued: 464.
Mexico City, Mexico;
Percentage of total at overseas posts: 2.0%;
A-3 and G-5 total visas issued: 367;
G-5 visas issued: 108;
A-3 visas issued: 259.
Colombo, Sri Lanka;
Percentage of total at overseas posts: 2.0%;
A-3 and G-5 total visas issued: 355;
G-5 visas issued: 211;
A-3 visas issued: 144.
Total for these posts;
Percentage of total at overseas posts: 40.3%;
A-3 and G-5 total visas issued: 7,211;
G-5 visas issued: 2,695;
A-3 visas issued: 4,516.
[See PDF for image]
Source: GAO analysis of State data.
[End of figure]
U.S. laws provide certain protections for household workers, including
individuals brought to the United States on A-3 or G-5 visas, and
State, Justice, Homeland Security, and Labor work to respond to
allegations of abuse, exploitation, or trafficking of household workers
by foreign diplomats. (App. II lists the relevant offices within these
departments and their respective responsibilities.) The U.S. government
considers involuntary servitude of household workers, as defined under
the Trafficking Victims Protection Act of 2000, to be a severe form of
trafficking in persons and a serious criminal offense. Specifically,
the act defines severe forms of trafficking in persons, in part, as the
recruitment, harboring, transportation, provision, or maintaining of a
person for labor or services through the use of force, fraud, or
coercion for the purpose of subjection to involuntary servitude,
peonage, debt bondage, or slavery. Victims of severe forms of
trafficking are offered certain accommodations under the act. Household
workers also are subject to U.S. laws and covered by the Fair Labor
Standards Act, which is the law governing minimum wages and overtime
pay. Homeland Security can provide special accommodations to
individuals who show that their employers have abused, exploited, or
trafficked them, allowing the workers to legally remain in the United
States. These accommodations are continued presence[Footnote 10]--
which permits an alien to be present legally in the United States and
to seek work during the investigation--and T nonimmigrant
status[Footnote 11]--which permits a visa holder to remain in the
United States for up to 4 years, file for adjustment of status to
lawful permanent residence, and apply for benefits from the U.S.
government such as food stamps and medical assistance. If they leave
their employment situation without either of these accommodations, A-3
and G-5 visa holders lose their legal immigration status and could be
deported.
Under international and domestic law, the U.S. government, including
its law enforcement authorities, extends privileges and immunities to
certain foreign diplomats.[Footnote 12] Employers of A-3 and G-5 visa
holders may be entitled to some degree of immunity (full or partial) or
may have no immunity at all. An employer with full diplomatic immunity
is generally immune from civil or criminal jurisdiction of U.S. courts.
Certain employers with partial or "official acts" immunity, such as
most individuals employed by international organizations, are immune
from civil or criminal jurisdiction of U.S. courts for conduct
performed under their official duties or functions. State and the
United Nations publish lists of current foreign diplomats who hold
diplomatic rank[Footnote 13] on their Web sites. Appendix III
identifies the respective privileges and immunities to which various
categories of foreign diplomats are entitled.
42 A-3 and G-5 Visa Holders Have Alleged Abuse Since 2000; Total Number
of Alleged Incidents Is Likely Higher:
We identified 42 individual A-3 and G-5 visa holders who have alleged
abuse by foreign diplomats with some level of immunity in the United
States from 2000 through June 2008. However, the total number of
alleged incidents is likely to be higher for four reasons: household
workers' fear of contacting law enforcement authorities, NGOs'
protection of victim confidentiality, limited information on some
allegations handled by the U.S. government, and federal departments'
difficulties in tracking household worker abuse allegations and
investigations involving foreign diplomats.
GAO Identified 42 A-3 and G-5 Visa Holders Who Have Alleged Abuse Since
2000:
We identified 42 distinct A-3 or G-5 visa holders who, since 2000, have
alleged that foreign diplomats[Footnote 14] with some level of immunity
abused them.[Footnote 15] We confirmed that 17 of the incidents alleged
by these A-3 or G-5 visa holders were handled by federal
agencies.[Footnote 16] These 17 incidents[Footnote 17] can be
categorized as follows:
˛ 10 alleged incidents of human trafficking, which resulted in eight
human trafficking investigations;[Footnote 18]
* one investigation of alleged visa fraud;[Footnote 19]
* one investigation of an alleged wage and hour violation; and:
* five alleged incidents identified by State, some of which may have
resulted in investigations, including:
- one human trafficking allegation;
* two allegations of physical or verbal abuse; and:
* two alleged wage and hour violations.
Most of the human trafficking investigations remain open. However, in
one of the human trafficking investigations, Justice determined that,
absent immunity, it would indict the foreign diplomat's wife. State
requested that the diplomat's home government waive immunity, which
would allow Justice to indict her. However, the diplomat's home
government declined to waive immunity; thus, Justice could not indict.
The diplomat and his wife subsequently left the United States, and
Justice has since closed this case.
We identified the remaining 25 distinct alleged incidents through legal
sources, such as Westlaw, and interviews with NGOs who provided
services to the alleged victims, such as assistance in applying for T
visas and filing lawsuits against their employers. According to NGOs, 4
of these 25 alleged victims applied for and received T visas. In
addition, we determined that civil suits were filed in 9 of these 25
alleged incidents. In most of these lawsuits, household workers sought,
in part, to recoup unpaid wages. According to NGOs, the courts
dismissed three of the nine lawsuits on the basis that the foreign
diplomats had immunity.[Footnote 20] Of the remaining six lawsuits,
NGOs indicated that five were settled out of court, and one resulted in
a default judgment because the defendants failed to respond. Although
we could not confirm that any of these 25 alleged incidents were
investigated or handled by the U.S. government, NGOs told us that they
reported 12 of them to federal agencies. They did not report the other
13 alleged incidents.
Number of Alleged Incidents Likely Higher Than the 42 We Identified:
The total number of alleged incidents of household employee abuse by
foreign diplomats with some level of immunity is likely to exceed the
total we have identified for four reasons. First, as we have previously
reported, trafficking victims are a hidden population because
trafficking is a clandestine activity.[Footnote 21] Trafficking victims
often are in a precarious position and may be unwilling or unable to
report to, or seek help from, relevant authorities. Moreover, the
Department of Health and Human Services reported that victims live
daily with inhumane treatment, physical and mental abuse, and threats
to themselves or their families back home. Victims of human trafficking
may fear or distrust the government and police because they are afraid
of being deported or because they come from countries where law
enforcement is corrupt and feared. In such circumstances, reporting to
the police or seeking help elsewhere requires courage and knowledge of
local conditions, which the victims might not have. In addition, some
victims may not be permitted to leave their employers' residences,
which makes it much more difficult to report their abuse to
authorities.
Second, NGOs have provided services to alleged victims who did not want
to be identified or who did not want to identify their employers. NGOs
we contacted told us that, since 2000, they have received allegations
from 66 A-3 or G-5 visa holders stating that they were abused by their
employers. However, in 31 of these alleged incidents, the worker and
the diplomat involved were not identified either because the worker was
too afraid to reveal his or her identity or because the organization
agreed to protect the client's confidentiality.
Third, because of federal agencies' need to protect sensitive
information, we received limited data on some alleged incidents handled
by the U.S. government, and thus did not include those incidents in our
total count. In most instances, federal agencies did not reveal the
names or countries of origin of the worker and foreign diplomat
involved in alleged incidents they had investigated or otherwise
handled. It is law enforcement policy not to disclose details of
ongoing criminal investigations. Without this information, however, we
could not fully reflect federal agencies' data in our overall count of
alleged incidents without potentially double counting ones that had
already been reported to us by NGOs. For example, although Justice told
us of 19 human trafficking investigations involving foreign diplomats
with immunity, we could only confirm that 8 of them were included in
our count of 42 distinct alleged incidents. Justice officials also told
us that there are likely multiple victims in some of the 19 trafficking
investigations they reported to us. Furthermore, while Homeland
Security identified nine A-3 and G-5 visa holders who received T visas
from Homeland Security's Citizenship and Immigration Services, we did
not learn the names of their employers, and therefore could not confirm
if they held immunity.
Fourth, federal officials said they could not determine definitively
the total number of alleged incidents they had handled and could only
estimate that number by reviewing specific case files and consulting
with knowledgeable staff. Officials had difficulty identifying all
alleged incidents or investigations in their records or databases for
several reasons as explained below:
* Justice, Immigration and Customs Enforcement, and Diplomatic Security
officials could not identify all investigations because their databases
are not designed or meant to facilitate searches based on
characteristics of the alleged perpetrators, such as whether they are
foreign diplomats.
* Justice officials told us that the ongoing investigations they
identified, primarily by canvassing knowledgeable staff, only went back
as far as May 2005.
* In addition, Immigration and Customs Enforcement could not identify
investigations before 2003, because it had difficulties capturing
trafficking-in-persons data prior to its creation as part of Homeland
Security in that year.[Footnote 22]
* State has several offices that receive allegations of abuse by
foreign diplomats, but no single office maintains information on all
allegations. According to the Foreign Affairs Manual, the Office of
Protocol establishes and maintains complete records of each reported
case that comes to its attention in which a foreign diplomat with
immunity from criminal jurisdiction has been accused of a crime in the
United States. State defines "accused of a crime" to mean cases in
which Justice has determined that, absent immunity, it would seek to
indict. Therefore, although the Office of Protocol receives reports of
allegations from other federal agencies,[Footnote 23] other State
bureaus and offices, and some NGOs, it does not systematically maintain
records on other ongoing criminal investigations, civil lawsuits that
have been filed, or any other allegations. Moreover, the Foreign
Affairs Manual indicates that State's Bureau of International
Organizations, the U.S. Mission to the United Nations (USUN), each
regional bureau, and Diplomatic Security will provide the Office of
Protocol and the Office of the Legal Adviser with reports on all cases
that come to their attention. However, there is no mechanism to ensure
that these reports are referred to and recorded by the Office of
Protocol and the Office of the Legal Adviser. We found that the Office
of Protocol was unaware of cases that USUN had handled, and the Office
of Protocol and the Office of the Legal Adviser were unaware of all
cases that Diplomatic Security had handled.
* While Labor's system tracks the 30,000 to 40,000 investigations of
alleged wage and hour violations it conducts each year, it does not
specifically identify those involving foreign diplomats. In addition,
although Justice and Homeland Security officials told us they have
referred allegations of wage and hour violations to Labor, they could
not identify the specific allegations. Labor officials told us that
they were aware only of one investigation of an alleged wage and hour
violation, but that policy is for field offices to inform headquarters
of any allegations of wage and hour violations received involving
foreign diplomats.
Three Factors Complicate Investigations of Abuse by Foreign Diplomats:
The U.S. government's process of investigating foreign diplomats for
alleged abuse is complicated by three factors--(1) constraints posed by
immunity, (2) household workers' heightened vulnerabilities due to
their employers' status, and (3) the length of time it takes for
Justice to obtain State's opinion on the use of specific investigative
techniques in trafficking investigations.
Immunity Poses Constraints for Investigations:
When investigating foreign diplomats with immunity, law enforcement
agents face constraints that become particularly pronounced when the
alleged crime has taken place in the diplomat's residence.
Investigators' options are most limited when a diplomat has full
immunity and is considered to have personal inviolability or when the
diplomat's residence is considered inviolable. Diplomats who are
personally inviolable cannot be detained, and property that is
considered inviolable (including vehicles and residences) cannot be
entered or searched without the diplomats' consent. Although the
residences of foreign diplomats with partial immunity may be searched,
these diplomats cannot be obliged to give evidence concerning matters
related to their official duties.
Officials at Justice, Homeland Security, and the Federal Bureau of
Investigation (FBI) told us that these limitations pose particular
problems when the allegation involves abuse of a household employee
because the worker's mistreatment often occurs in the employer's
residence and is not witnessed by individuals outside the employer's
family. For example, a Justice official told us that these allegations
can be among the most difficult to investigate and prosecute because it
is hard for investigators to gather enough corroborating evidence.
Investigators are prohibited from observing working and living
conditions in the home absent the diplomat's consent, and possible
witnesses often include the diplomat's family, who also may have
immunity. Instead, investigators often have to rely primarily on
interviewing the victim and talking to neighbors who may have observed
interactions between the diplomat and the household employee. In some
instances, the evidence collected through these methods is considered
insufficient to pursue prosecution. These constraints resulted in at
least one instance in which law enforcement officials closed an
investigation for lack of sufficient evidence after they determined
that constraints posed by immunity prevented investigators from talking
to witnesses inside a foreign diplomat's home.
Diplomats' Status Heightens Workers' Vulnerabilities:
The status of foreign diplomats under investigation can heighten their
household workers' sense of vulnerability. For example, household
workers may be intimidated by their employers' wealth, political
connections, or prominent positions in society. One Justice official
told us that abusive situations involving foreign diplomats' household
workers have 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. This fear can inhibit
household workers from cooperating with investigations, further
limiting the investigators' options for collecting evidence. NGOs told
us that foreign diplomats have used immunity as a weapon to frighten
their household workers and discourage them from escaping or taking
actions to improve their situation. Workers have alleged that their
employers threatened their family members back home, told them they
would be deported if they did not do as they were instructed, and
stated they could treat them as they chose because immunity allows them
to do so with impunity. As reported above, we also learned from some
NGOs of a number of allegations of household worker abuse by foreign
diplomats that were not reported to the U.S. government because the
workers were too afraid of potential consequences. In these instances,
an investigation could not even be initiated.
Lengthy Process for Determining the Permissibility of Using
Investigative Techniques Can Hamper Trafficking Investigations:
Justice requests State's advice on how diplomatic immunity impacts the
legal permissibility of using certain investigative techniques, but the
time-consuming process of obtaining State's opinion can hamper
investigations. When Justice receives an allegation that a foreign
diplomat has abused a household worker, it reviews the facts and
determines if they merit opening a trafficking investigation. If
Justice decides to open an investigation (or learns that Immigration
and Customs Enforcement or the FBI has opened a new investigation), it
contacts State to (1) confirm the diplomat's identity and level of
immunity; (2) determine how State wants to be kept informed of the
investigation; and (3) obtain State's opinion, if necessary, on the use
of certain investigative techniques. State officials said that there is
no formal requirement for Justice to consult with them on whether
certain investigative techniques are permissible, but that it is
appropriate and they welcome Justice to do so. According to Justice,
because U.S. courts take into account State's interpretation of
international treaties and conventions, Justice requests State's legal
interpretation on these matters. Although certain techniques, such as
searching the residence of a diplomat who has full immunity and
inviolability without the diplomat's consent, are clearly prohibited,
other techniques may touch the diplomat's "sphere of privacy."
According to State officials, the permissibility of these techniques
under international law is less clear.[Footnote 24]
While State can readily confirm a diplomat's identity, State's process
of advising on which investigative techniques are legally permissible
has, in some instances involving unprecedented circumstances, taken
several months. In one instance, a victim agreed to a specific
investigative technique that could have allowed Justice to collect
important evidence. The victim's lawyers postponed filing a civil suit
on her behalf to avoid alerting the diplomat involved that he was under
investigation. State spent 6 months deliberating the issue, but did not
advise Justice on whether use of this technique was legally
permissible. Justice did not use the technique, the victim's lawyers
eventually filed suit, and the criminal investigation remains open. In
other instances, State has asked Justice to provide specific
information that it believes could help it formulate an opinion on
whether use of the technique is legally permissible. According to a
Justice official, obtaining some of this information can be difficult
and time-consuming. Both Justice and State officials agreed that when
the issue at hand is relatively straightforward, they reach agreement
quickly.
According to State, its internal process of reaching an opinion on the
legal advisability of investigative techniques can be time-consuming
because State takes both legal and policy considerations into account
when considering the advisability of using investigative techniques
that fall into the "gray area." For example, the involvement of foreign
diplomats can raise sensitivities for the U.S. government. State may
need to consider reciprocity, such as how use of a specific technique
might affect treatment of U.S. diplomats abroad. Similarly, if the
foreign diplomat's country is a close ally of the United States, State
also will assess how relations with that country might be affected by
use of the investigative technique. The process of addressing these
questions through State's supervisory chain of command, which can go
above the Assistant Secretary level, if necessary, is lengthy,
according to State officials. Once State makes a final determination, a
State official conveys to a Justice official the department's opinion
on use of the investigative technique in the specific case. This
opinion covers both State's legal determination and any policy concerns
the department may have. For example, a State official might say that
the department could probably defend the use of a technique legally,
but it would raise serious reciprocity concerns.
According to Justice, State's policy considerations do not affect its
trafficking investigations, but the length of State's deliberative
process in determining what is legally permissible can hamper them. The
investigative techniques in question are, according to Justice
officials, among the most useful for gathering corroborating evidence,
but they are unlikely to succeed unless they are implemented quickly.
As one Justice official explained, "time is the enemy of successful
investigations," meaning that the longer it takes to get approval from
State, the greater the likelihood that the investigation will be
compromised. For example, the subjects might learn that they are under
investigation or they might leave the United States for their next
assignment, further limiting the opportunity to collect evidence.
Homeland Security officials also told us that any delays are
detrimental to the preservation and collection of physical and
testimonial evidence.
To expedite the investigative process, Justice officials said that it
would be helpful for State to provide them with a list of investigative
techniques that, in State's view, are not legally permissible when the
subject of the investigation has full or partial immunity. However,
State prefers to continue handling these investigations on a case-by-
case basis. State officials explained that, while they could make a
list of techniques that are clearly acceptable (such as asking the
diplomat to agree to an interview) or prohibited (such as searching the
residence of a diplomat with full immunity and inviolability), they
would rather not indicate the legal permissibility of other, less clear-
cut techniques because they want to be able to consider both the legal
and policy implications of each case. However, these officials added
that they are aware of the need to provide a more timely response to
Justice. Officials from both agencies told us they are considering
developing an interagency process that would outline time frames for
discussing the use of investigative techniques, but they have, thus
far, not taken any formal actions toward creating one.
Weaknesses Exist in Implementation and Oversight of A-3 and G-5 Visa
Policies and Procedures:
At the four consular posts we visited, we found weaknesses in State's
process for ensuring that its policies for issuing A-3 and G-5 visas
are implemented correctly and consistently, and some consular officers
were unfamiliar with or unclear about aspects of guidance relating to
these visas. Although State headquarters issues A-3 and G-5 policies
and procedures, it relies on individual posts to ensure they are
implemented correctly and consistently and has not instituted a process
to spot-check compliance.
GAO Found Weaknesses in the Implementation of A-3 and G-5 Visa
Policies:
Through our fieldwork, we identified instances in which A-3 and G-5
policies were not implemented correctly and consistently. State
requires that A-3 and G-5 visa applicants submit employment contracts
signed by both the employer and employee that include:
* a guarantee that the employee will be compensated at the state or
federal minimum wage or prevailing wage, whichever is greater;
* a statement by the employee that he or she will not accept any other
employment while working for the employer;
* a statement by the employer that he or she will not withhold the
passport of the employee; and:
* a statement indicating that both parties understand that the employee
cannot be required to remain on the premises after working hours
without compensation.
However, the contracts we reviewed[Footnote 25] did not include at
least one of State's requirements 71 percent of the time at one post,
35 percent at the second, 23 percent at the third, and 6 percent at the
fourth.[Footnote 26]
* In some cases, the contracts were clearly deficient in one or more
areas. For example, one contract we reviewed showed that the employee
would receive $5 per hour (below the minimum wage) and that the
employee would reimburse her employer for items received. This
particular contract also did not include a statement that the employee
could not be required to remain on the premises after working hours
without compensation.
* In other cases, the contracts included statements that appeared to
comply with State's requirements, but also contained information that
contradicted these statements. For example, some contracts stated that
"the normal working hours of the second party [employee] shall be at
the prevailing wage for a 40 hours [sic] week." However, these
contracts also showed that the employees would be paid well below the
prevailing wage for their occupation and intended destination.
Our review of employment contracts revealed other shortcomings and
raised questions about whether the employee would be paid fairly.
* A-3 and G-5 visa applicants must submit contracts in English and a
language understood by the applicants to demonstrate they understand
their duties and rights regarding salary and working conditions.
However, at one post where consular officers told us that A-3 and G-5
visa applicants rarely speak or read English, none of the contracts we
reviewed was in a language other than English.[Footnote 27]
* We identified some contracts where the employee would be paid
overtime "in accordance with [the foreign diplomat's home] embassy
regulations."
* In another contract, the employee's overtime hourly rate was lower
than her wage for normal working hours.
Some Consular Officers Unfamiliar with or Unclear about Aspects of A-3
and G-5 Policies and Procedures:
At the four posts we visited, we also found that some consular officers
were unfamiliar with or unclear about certain aspects of State's
guidance on A-3 and G-5 visas.
Requiring a Diplomatic Note:
According to State's guidance, A-3 and G-5 visa applications must be
accompanied by a diplomatic note from the appropriate foreign mission
or international organization that identifies the applicant's employer
and confirms the employer's official A or G status. Some consular
officers overseas told us that they believed a note was not required if
they could identify the employer and confirm his or her status through
The Office of Foreign Missions Information System (TOMIS), a database
of foreign diplomats posted to the United States, which, according to
the Foreign Affairs Manual, can be a useful tool for consular officers
to confirm a diplomat's status. However, senior consular officials at
State headquarters told us that TOMIS may contain inaccurate or
outdated information and confirmed that a diplomatic note was in fact
required.
Informing A-3 and G-5 Visa Applicants of Their Rights:
State's guidance also includes provisions encouraging consular officers
to help educate A-3 and G-5 visa applicants about their rights under
U.S. laws, but some officers we spoke with were unaware of these
provisions. Consular officers are required to interview all A-3 and G-
5 visa applicants. State recommends that officers use the interview to
advise applicants in a language they understand that the U.S.
government considers involuntary servitude of household workers to be a
severe form of trafficking in persons and a serious criminal offense
and that victims of involuntary servitude are offered protection under
the Trafficking Victims Protection Act. Officers are encouraged to make
A-3 and G-5 applicants aware that the telephone number for police and
emergency services is 911, and that there is a telephone hotline for
reporting abuse of household workers and other trafficking-related
crimes.[Footnote 28] State also reminds consular posts that an
antitrafficking brochure titled "Be Smart, Be Safe" is available as a
handout to household worker applicants. However, while several officers
said they try to explain to A-3 and G-5 visa applicants that they have
rights under U.S. laws, the officers also were unaware of the telephone
hotline, State's advice to refer workers to 911, or the brochure. None
of the posts we visited made copies of the "Be Smart, Be Safe" brochure
available to visa applicants, although two of them had created one-page
informational handouts for A-3 and G-5 visa applicants.[Footnote 29] At
one of these posts, officers generally did not speak with applicants
about their rights but instead relied on giving them the one-page
handout. NGOs and alleged victims we spoke with told us that measures
to educate A-3 and G-5 visa applicants are important. For example, one
alleged victim said that U.S. embassies abroad should tell domestic
workers coming to the United States that they have rights because, in
her experience, one of the ways that employers abuse their workers is
to tell them that they are still under the laws of their home country.
She added that, specifically, embassies should give A-3 and G-5 visa
applicants information about whom to contact if they experience
physical or psychological abuse. Another worker, whose employer was
investigated and sent home for allegedly trafficking household workers,
told her attorneys that she knew to seek help because a consular
officer had told her about her rights under U.S. law when she applied
for her A-3 visa.
Scanning Employment Contracts:
Another area of the guidance that posts we visited were largely unaware
of was the March 2007 direction from State headquarters to
electronically scan copies of A-3 and G-5 employment contracts into the
Consular Consolidated Database, which contains information on visa
applicants. Two of the posts we visited had not scanned any of their
contracts into the database, one had scanned about half of the
contracts we reviewed, and the remaining one had only scanned a few. A
State official in Washington explained that scanning documents is
useful because, in cases of alleged abuse, accessing a copy of the
contract provides evidence that the diplomat had agreed to provide
better working conditions.[Footnote 30] NGOs also emphasized the
importance of being able to access employment contracts. For example,
an NGO told us that in one case, a foreign diplomat gave his worker a
contract to present when applying for a G-5 visa that said that she
would receive $1,200 per month, but gave her a different contract when
she arrived in the United States that said she would receive only $425
per month. The organization is now trying to locate a copy of the
original contract.
Criteria for Refusing A-3 and G-5 Visas:
Finally, consular officers at the posts we visited were uncertain about
the reasons for which they could refuse A-3 and G-5 visas. State's
guidance directs consular officers to determine that A-3 and G-5 visa
applicants are entering into true employer-employee relationships, in
accordance with required terms of their personal employment contracts.
However, it does not explicitly state if concerns about abuse or
mistreatment are sufficient grounds on which to refuse an A-3 or G-5
visa. At one post we visited, consular officers told us they were
comfortable refusing these visas, particularly if there were
indications that the worker might not be treated well. They might
refuse the visa if the applicant was under age 18 or if the employer
resisted requests by the consular officers to interview the applicant
alone. In an attempt to ensure better treatment of household workers,
that post instituted a policy of preferring individuals to have worked
for the sponsoring diplomat for 1 year before applying for an A-3
visa.[Footnote 31] While the consular officers at this post said they
believed they had considerable latitude to refuse A-3 or G-5 visas,
other officers we spoke with said that they did not. For example, the
Deputy Chief of Mission at one post told us that he "wished he could
refuse more A-3 and G-5 visas," but that he was unsure of consular
officers' ability to deny A-3 and G-5 visa applicants. Several consular
officers echoed these comments, noting that, without hard evidence that
an applicant has been or could be mistreated, it is difficult to deny
an A-3 or G-5 visa. For example, a consular officer at one post we
visited told us that, in one case, she was concerned that the applicant
had never met her employer, but her supervisors told her that as long
as the applicant had a valid employment contract, she had to issue the
visa.
State is considering steps to address confusion about refusing A-3 and
G-5 visas, but has not taken actions to implement them. Consular
officials in Washington told us that, while it is appropriate and even
expected for consular officers to refuse A-3 and G-5 visas if they
believe that visa applicants may be abused by their prospective
employers, the officers have "little to go on beyond the contract" and
it is impossible to refuse a visa based on something that has not
happened or will not happen for another 6 months. State is considering
adding specific provisions to the Foreign Affairs Manual outlining
certain circumstances in which these visas should be denied. These
provisions might place a heavier burden on lower-ranking foreign
diplomats to document sufficient means to employ household staff under
the contractual requirements stipulated for A-3 and G-5 visas. The
provisions also might result in refusal of an A-3 or G-5 visa if a
particular diplomat is linked to a pattern of employee disappearance,
abuse allegations, or other irregularities. A State official told us
the department is drafting possible language for these additional
provisions to the Foreign Affairs Manual, but officials have not
reached internal agreement on final language and have no timetable for
doing so. In addition, officials in State headquarters do not currently
alert consular officers if they have information that could help in the
adjudication of an A-3 or G-5 visa based on a pattern of employee
disappearance, abuse allegations, or other irregularities because that
information is not included in State's databases. For example,
headquarters does not alert consular officers to seek guidance if a
foreign diplomat is under investigation for trafficking or if a foreign
diplomat has employed anyone who subsequently received a T visa.
State Headquarters Does Not Routinely Assess Compliance with A-3 and G-
5 Visa Policies and Procedures:
Consular officials in Washington told us they rely on individual posts
to ensure correct and consistent implementation of A- 3 and G-5
policies and procedures and do not independently monitor compliance on
a routine basis. Supervisory officials at consular posts abroad review
a selection of visas that were issued or refused at that post each day.
The reviews these officials conduct may cover some of the A-3 and G-5
visas that were adjudicated, but not all of them. Furthermore,
officials conduct these reviews through the Consular Consolidated
Database, so they are unlikely to review supporting documents for A-3
and G-5 visas, such as employment contracts and diplomatic notes, which
we found were usually not scanned into the database. Consular officials
at State headquarters told us they provide advice to individual posts
on an as-needed basis, but generally rely on supervisory reviews to
ensure compliance with State policies and procedures because it is not
their role or responsibility to oversee the consular posts in this
regard.[Footnote 32] As such, they do not routinely and independently
monitor compliance with A-3 and G-5 policies and procedures.
The people who come to the United States on A-3 and G-5 visas are among
the most vulnerable who enter our borders legally. They are often poor,
uneducated, and unfamiliar with their rights under U.S. law. If they
find themselves in an abusive situation, their ability to hold their
employers accountable can be limited, particularly if their employers
hold full diplomatic immunity and inviolability. Although State has
expressed concerns that some foreign diplomats may be abusing their
household workers, it has not systematically collected and maintained
information on cases of alleged abuse that have come to its attention.
In addition, State has not always ensured that the visa policies and
procedures in place to provide protections for these most vulnerable
individuals have been correctly and consistently implemented, such as
the policy requiring certain elements within these workers' employment
contracts. Furthermore, if officials at State headquarters have
information linking a particular diplomat to a pattern of employee
disappearance, abuse allegations, or other irregularities, they do not
routinely alert consular officers to seek guidance. Finally, the U.S.
government's process for investigating trafficking of household workers
by foreign diplomats has, in some instances, been hampered by delays in
coordination between State and Justice on the use of investigative
techniques. In addressing these problems, the U.S. government can
strengthen its commitment to combating human trafficking within the
United States.
Recommendations for Executive Action:
To improve the U.S. government's process for preventing and responding
to allegations of household employee abuse by foreign diplomats, we are
making four recommendations.
1. To ensure that the Office of Protocol and the Office of the Legal
Adviser are aware of all cases involving alleged abuse of household
workers by foreign diplomats that have come to the attention of the
department, we recommend that the Secretary of State (1) emphasize to
the relevant bureaus and offices the importance of the Foreign Affairs
Manual requirement to report all cases that come to their attention and
(2) direct the Office of Protocol and the Office of the Legal Adviser
to create a system for collecting and maintaining records on these
cases.
2. To assist in timely handling of future investigations, we recommend
that the Secretary of State, the Attorney General, and the Secretary of
Homeland Security establish an interagency process outlining agreed-
upon policies and time frames for determining which investigative
techniques can be used in trafficking investigations involving foreign
diplomats.
3. We recommend that the Secretary of State direct the Bureau of
Consular Affairs, in coordination with the Office of Protocol and the
Office of the Legal Adviser, to establish a system alerting consular
officers to seek guidance from State headquarters before issuing A-3 or
G-5 visas to applicants whose prospective employers may have abused
their household workers in the past. For example, if State headquarters
is aware that a foreign diplomat is under investigation for alleged
human trafficking, it could place an alert in the system advising
consular officers to request guidance should an individual apply for an
A-3 or G-5 visa to work for that diplomat.
4. To better ensure correct and consistent implementation of A- 3 and G-
5 visa policies and procedures, particularly those that outline
requirements for employment contracts, we recommend that the Secretary
of State enhance oversight by establishing a system to spot-check
compliance with these policies and procedures. This spot-check system
would allow headquarters to assess compliance without dedicating the
resources needed to review all A-3 and G-5 visas issued in a given year
and could be targeted at posts that issue high numbers of A-3 or G-5
visas or that have identified difficulties interpreting guidance on
these visas classes.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Departments of State,
Justice, Homeland Security, Labor, and Health and Human Services for
their comments. State and Justice provided written comments on the
draft, which we have reprinted in appendixes IV and V, respectively.
State agreed with all four of our recommendations. Regarding the first
recommendation, State indicated that it will emphasize to the relevant
bureaus and offices the importance of reporting promptly and fully all
cases of alleged abuse of household workers by foreign diplomats. State
also noted that the Office of Protocol is now creating a system for
collecting and maintaining centralized records on these cases that
would allow for ready access to records of cases that involve
individuals with immunity. Regarding our second recommendation, State
said that, while most investigations go forward without consultations
on investigative techniques, it will be useful to establish a process
to address novel and difficult questions regarding investigative
techniques. In response to our third recommendation, State said that it
will place known abusers of household workers in the Consular Lookout
and Support System, a database designed to screen visa applicants and
maintain watch lists. State will also upgrade consular officers' access
to TOMIS to provide improved information regarding A- 3 and G-5 cases.
State responded to our last recommendation by acknowledging the need
for better compliance with policies and procedures to ensure that A-3
and G-5 employment contracts contain all required elements and are
electronically scanned for future reference in case of alleged abuse.
State reiterated that it is primarily the responsibility of senior
consular managers at posts to ensure compliance with visa adjudication
procedures and practices in their consular sections, but added that it
will consider and review whether spot-checking compliance from
headquarters is appropriate and consistent with judicious use of
limited resources. As indicated in our fourth recommendation, we
believe that spot-checking is important for enhancing oversight and
could be targeted in such a way as to minimize use of resources.
Justice generally agreed with our findings, particularly our finding
that obstacles to investigating allegations of household worker abuse
are compounded when employers have diplomatic immunity. Justice also
concurred with our second recommendation, highlighting the importance
of agreeing upon time frames for determining which investigative
techniques can be used, so that criminal investigations are not
compromised.
State, Justice, and Homeland Security provided technical comments,
which we incorporated as appropriate. For example, Homeland Security
asked to be included in the second recommendation, which was initially
directed to the Secretary of State and the Attorney General.
Specifically, Homeland Security officials stated that Immigration and
Customs Enforcement should participate in the recommended interagency
process because the introduction of persons into the United States for
the purpose of exploitation is a primary law enforcement responsibility
and area of expertise of Immigration and Customs Enforcement. We agreed
to include the Secretary of Homeland Security in the second
recommendation.
The Departments of Labor and Health and Human Services did not provide
comments on the draft report.
We are sending copies of this report to other interested Members of
Congress. We are also sending copies to the Secretary of State, the
Attorney General, the Secretary of Homeland Security, the Secretary of
Labor, and the Secretary of Health and Human Services. In addition, the
report will be available at no charge on the GAO Web site at
[hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-9601 or melitot@gao.gov. Contact points for our
offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made significant
contributions to this report are listed in appendix VI.
Signed by:
Thomas Melito:
Director, International Affairs and Trade:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Our objectives were to (1) seek to determine how many A-3 and G-5 visa
holders have alleged abuse by foreign diplomats with immunity since
2000, (2) review the U.S. government's process for investigating abuse
allegations involving foreign diplomats with immunity, and (3) describe
and assess how State ensures correct and consistent implementation of A-
3 and G-5 visa polices and procedures. In this report, we define abuse
to include illegal activities ranging from wage and hour violations to
human trafficking.
To determine how many A-3 and G-5 visa holders have alleged abuse by
foreign diplomats from 2000 (when the U.S. government enacted the
Trafficking Victims Protection Act) through June 2008, we collected
data, interviewed officials from four U.S. government agencies and 10
nongovernmental organizations (NGO), and searched legal databases, such
as Westlaw, to identify civil lawsuits.
* At the Department of State (State), we met with officials from the
Office of the Legal Adviser, Office of the Chief of Protocol,
Diplomatic Security Service, Office of Foreign Missions, Bureau of
International Organizations Affairs, United States Mission to the
United Nations (USUN), Office to Monitor and Combat Trafficking in
Persons, and Bureau of African Affairs.
* At the Department of Justice (Justice), we met with officials from
the Human Smuggling and Trafficking Prosecution Unit within the Civil
Rights Division/Criminal Section (CRT/CS), Executive Office for United
States Attorneys, headquarters and field offices of the Federal Bureau
of Investigation (FBI), and one local Assistant United States
Attorney's (AUSA) Office.
* At the Department of Homeland Security (Homeland Security), we met
with officials from Immigration and Customs Enforcement's (ICE) Human
Smuggling and Trafficking Unit and Citizenship and Immigration Services
(CIS).
* At the Department of Labor (Labor) we met with officials from the
Employment Standard Administration's Wage and Hour Division
headquarters office and its New York City district office.
* We identified and met with 10 NGOs that have provided legal services
to A-3 and G-5 visa holders through analysis of civil lawsuits filed on
behalf of A-3 and G-5 visa holders, referrals from NGOs, and a review
of past and recent media reports. These 10 NGOs have a broad range of
experience and expertise on cases involving victims of household worker
abuse and are all located in the Washington, D.C., and New York
regions.
State, Justice, Homeland Security, and Labor provided data on the
number of incidents they have handled by canvassing current staff and
reviewing specific case files. To avoid double-counting the number of
these alleged incidents, we asked the departments to verify with each
other the number of investigations in which they had participated.
Homeland Security also provided us with the number of individuals who
had received T visas and identified themselves as A-3 or G-5 visa
holders on their T visa applications. We counted NGO-alleged incidents
if we could determine the name of the diplomat involved and confirm
that he or she held immunity or if we received enough information from
a law enforcement source to ensure that a diplomat with immunity was
involved and that the alleged incident was not duplicative with any
other incident. Therefore, we believe that the data we obtained from
federal agencies and the NGOs are sufficiently reliable for reporting
the minimum number of incidents of alleged abuse of A-3 and G-5 visa
holders by their employers since 2000.
To review the U.S. government's process for investigating abuse
allegations involving foreign diplomats with immunity, we reviewed
State documents including the Foreign Affairs Manual, cables sent to
consular officers on A-3 and G-5 visas, "Diplomatic and Consular
Immunity Guidance for Law Enforcement and Judicial Authorities,"
diplomatic notes to Chiefs of Diplomatic Missions in the United States
regarding conduct of diplomatic agents in the United States, USUN's
diplomatic notes to Permanent Missions and Permanent Observer Offices,
and State's 2007 document to the Senate Committee on Foreign Relations
entitled "State's Initiatives to Promote Fair Treatment of Domestic
Workers by Diplomatic Personnel." We also interviewed officials from
State's Office of the Chief of Protocol, Office of the Legal Adviser,
Diplomatic Security Service, USUN, and Office to Monitor and Combat
Trafficking in Persons. Because federal law enforcement agencies have
no written policies or procedures specifically regarding abuse of
household workers by foreign diplomats, we relied on testimonial
evidence to determine their processes for handling alleged abuse of
household workers by foreign diplomats. We interviewed law enforcement
officials from Justice including the FBI, the Human Smuggling and
Trafficking Prosecution Unit within CRT/CS, and one AUSA Office. We
also met with officials at the Human Smuggling and Trafficking Unit
within ICE. We interviewed one of the two U.S. Attorneys assigned to
prosecute two relevant cases. The second prosecutor did not comment
about the case, given the early stage of the review. At Labor we
reviewed a document describing the agency's policy regarding household
workers employed by foreign nationals titled "Domestic Service Workers
Employed by Foreign Nationals," and interviewed officials at the Wage
and Hour Division headquarters office and the Office of Enforcement
Policy and the New York City District Office. We also analyzed key
sections of international conventions, acts, and agreements on immunity
to describe in general terms the different levels of immunity and the
protections accorded under each one, specifically with regard to
investigations of alleged abuse or trafficking of household workers by
foreign diplomats. Finally, we interviewed NGOs and three alleged
victims of abuse by foreign diplomats.
To describe and assess how State ensures correct and consistent
implementation of A-3 and G-5 visa polices and procedures, we reviewed
documents, analyzed data provided to us by State, and interviewed State
officials in Washington, D.C; New York; Lima, Peru; Manila,
Philippines; Doha, Qatar; and Riyadh, Saudi Arabia. We reviewed the
Foreign Affairs Manual, State's circular notes, training and guidance
materials for consular officers, and guidance for visa applicants on
State's public Web site and consular posts' Web sites. We interviewed
officials from State's headquarters, including Consular Affairs and the
Office of the Chief of Protocol. We also interviewed consular officers
and reviewed A-3 and G-5 applications at four consular posts: Lima,
Peru; Manila, Philippines; Doha, Qatar; and Riyadh, Saudi Arabia. In
selecting these four consular posts, we analyzed data provided to us by
Consular Affairs on A-3 and G-5 visas issued for fiscal years 2000
through 2007. Each of the 4 posts is among the 10 that issued the most
A-3 and G-5 visas, combined, during this time period. Together these
four posts account for about 22 percent of all A-3 and G-5 visas issued
abroad since 2000. The U.S. embassy in Manila issued more A-3 and G-5
visas from fiscal year 2000 through 2007 than any other overseas post.
The total number of A-3 and G-5 visas issued in Manila accounts for
almost 10 percent of all A-3 and G-5 visas issued during this period.
The U.S. embassy in Lima issued the second highest number of A-3 and G-
5 visas, about 5 percent of the total, and the U.S. embassies in Riyadh
and Qatar followed closely behind Lima, with about 4 percent and 3
percent, respectively, of all A-3 and G-5 visas issued during this
period.
As part of our site visits or through telephone interviews, we
interviewed consular officers to determine the steps State's Bureau of
Consular Affairs has taken to ensure that State's policies and
procedures for issuing A-3 and G-5 visas are implemented correctly and
consistently. To examine the procedures for issuing A-3 and G-5 visas,
we reviewed documents describing the requirements that household
workers and U.S. consular officers should meet during the visa
application process. We did not review or evaluate consular officers'
decisions to refuse or issue visas. We worked with State officials to
identify documentation that we could review both at consular posts and
in Washington, D.C.
To determine the extent to which A-3 and G-5 applications met
documentation requirements, we developed a checklist of State's
requirements for A-3 and G-5 visa applicants and then assessed
applications at each post against this checklist, reconciling any
differences in our assessments. For one of the four posts, we were able
to review all available documentation for A-3 and G-5 visas adjudicated
since March 1, 2007. (We selected this date because State issued
updated guidance to posts on the A-3 and G-5 visa class in March 2007.)
For the other three posts, we were able to review only a sample of
available files and documentation. Although the cases we reviewed from
these posts are not generalizable, we reviewed a randomly selected set
of cases to minimize any selection bias. Below is a more detailed
explanation of our methodology for selecting and reviewing files from
each post:
* In Lima, Peru, we reviewed 87 A-3 and G-5 visa files that had been
adjudicated between March 1, 2007, and February 26, 2008, and that had
a paper copy of the employment contract, the diplomatic note, or both.
While 53 additional A-3 and G-5 application files were not available
for our review in Lima, Consular Affairs in Washington, D.C., later
agreed to search the Consular Consolidated Database to determine
whether any documents for these 53 files had been scanned into it.
These officials also searched the database for scans of accompanying
documents for any of the 87 files in Lima for which we had seen only
one of the required documents. (For example, if we saw only a
diplomatic note in a given file, we asked if the related employment
contract had been scanned into the database.) The officials determined
that documents that we had not reviewed, related to 2 of the 87 files
in Lima, had been scanned into the database. They also determined that
one or both of the required documents for 5 of the 53 files that were
not available for review at post had been scanned into the database. We
did not review these seven files.
* In Manila, Philippines, we reviewed 61 A-3 and G-5 visa application
files from December 1, 2007, to March 15, 2008, including all available
documentation. Due to physical space constraints, this post only
maintains 3 months of visa applications on file. In addition, the post
had not been scanning employment contracts or diplomatic notes into the
Consular Consolidated Database, so we were unable to review any files
earlier than December 2007.
* For Riyadh, Saudi Arabia, we reviewed a total of 25 A-3 or G-5 visa
files. At post, we reviewed two application files, including all
documentation available for these A-3 or G-5 visa applications.
Although we had requested to review all files available since March 1,
2007, consular officials in Washington, D.C., instructed the post to
allow us to review files only if the particular case was mentioned in
the course of interviews at posts. These officials later agreed to
provide us redacted copies of 25 percent (or 23) of the A-3 and G-5
visa files from the U.S. Embassy in Riyadh between March 1, 2007 and
February 29, 2008. We randomly selected these 23 files and reviewed
them in Washington.
* In Doha, Qatar, we reviewed all 56 A-3 and G-5 visa application files
that were adjudicated between March 1, 2007, and February 28, 2008,
including all documentation available.
Although we were unable to review all requested A-3 and G-5 visa files
at the posts we visited, the information we obtained was sufficient for
addressing our third objective.
We conducted this performance audit between October 2007 and July 2008
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
[End of section]
Appendix II: U.S. Government Agencies' Primary Responsibilities Related
to Foreign Diplomats and A-3 and G-5 Visa Holders:
We analyzed State's roles and responsibilities related to A-3 and G-5
visa holders, as well as foreign diplomats, and identified key State
offices and bureaus involved in these matters. Table 1 summarizes our
analysis.
Table 1: Relevant Responsibilities of State Department Bureaus and
Offices:
Office: Office of the Chief of Protocol, Diplomatic Affairs Division;
Responsibility: * Accredits diplomatic agents and consular officers of
foreign governments in the United States;
* Maintains the official records regarding the status and immunity
level of all diplomatic and consular officers;
* Makes available to the public the Diplomatic List and Foreign
Consular Offices in the United States;
* Submits State's annual report to the Secretary of State and Congress
entitled Report on Criminal [and Civil] Cases Involving Immunity.
Office: Bureau of Consular Affairs;
Responsibility: * Issues policy, guidance, and training to consular
officers on the adjudication of A-3 and G-5 visas.
Office: U.S. embassies and consulates;
Responsibility: * Adjudicates A- 3 and G-5 nonimmigrant visa
applications (reviews documents and interviews visa applicant and,
possibly, employer).
Office: Office of the Legal Adviser, Consular Affairs;
Responsibility:
* Provides legal advice and representation in relation to the
performance of consular functions by State (including adjudication and
revocation of visas and passports).
Office: Office of the Legal Adviser, Diplomatic Law and Litigation;
Responsibility: * Advises law enforcement authorities on diplomatic and
consular immunity.
Office: Office to Monitor and Combat Trafficking in Persons;
Responsibility: * Encourages partnerships and leads the coordination of
antitrafficking efforts both worldwide and domestically;
* Consults with nongovernmental organizations and affected victims of
trafficking.
Office: United States Mission to the United Nations (USUN);
Responsibility: * Facilitates and evaluates registration and
accreditation of individuals accredited by the United Nations;
* Communicates with the UN Protocol and Liaison Service for full
listing in the publicly available Blue Book of the missions' diplomatic
personnel and their spouses.
Office: Bureau of International Organizations;
Responsibility: * Receives allegations of abuse by UN diplomats from
USUN;
* Works in cooperation with the USUN and Office of the Legal Adviser,
Diplomatic Law on allegations of abuse by UN diplomats.
Source: GAO analysis of State documents and interviews.
[End of table]
We also analyzed various federal agencies' role in investigating and
prosecuting federal law violations related to abuse of household
workers by foreign diplomats with some level of immunity. Table 2
summarizes our analysis.
Table 2: Federal Departments with Primary Investigative and
Prosecutorial Responsibilities:
Investigative and prosecutorial departments: Justice;
Office: Civil Rights Division/Criminal Section, Human Trafficking
Prosecution Unit;
Responsibility: * Receives allegations that a crime has occurred;
* Refers cases to lead investigative agency, if the agency has not
already begun an investigation;
* Prosecutes trafficking crimes in conjunction with the U.S. attorney
for the relevant jurisdiction.
Investigative and prosecutorial departments: Justice;
Office: Federal Bureau of Investigation;
Responsibility: * Investigates trafficking crimes.
Investigative and prosecutorial departments: Justice;
Office: U.S. Attorneys;
Responsibility: * Prosecutes trafficking cases in their geographic
jurisdiction in conjunction with the Human Trafficking Prosecution
Unit.
Investigative and prosecutorial departments: Homeland Security;
Office: Immigration and Customs Enforcement (ICE), Human Smuggling and
Trafficking Unit;
Responsibility: * Investigates human trafficking crimes and provides
short-term immigration relief to alien victims (continued presence).
Investigative and prosecutorial departments: State;
Office: Bureau of Diplomatic Security Service, Criminal Investigation
Division;
Responsibility: * Investigates passport violations and visa fraud,
which may be in connection with other serious crimes such as
trafficking.
Investigative and prosecutorial departments: Labor;
Office: Employment Standards Administration, Wage and Hour Division;
Responsibility: * Maintains policy on wage and hour investigations
involving foreign nationals attached to a foreign embassy, consulate,
or international organization;
* Notifies State of these investigations.
Supporting departments: State;
Office: Office of the Legal Adviser, Diplomatic Law and Litigation;
Responsibility: * Advises law enforcement authorities on diplomatic and
consular immunity.
Supporting departments: State;
Office: Office of the Chief of Protocol;
Responsibility: * Refers alleged criminal violations to law enforcement
authorities.
Supporting departments: Homeland Security;
Office: Citizenship and Immigration Services;
Responsibility: * Processes and approves T nonimmigrant status for
alien victims of trafficking;
* Processes short-term immigration relief for alien victims (continued
presence).
Supporting departments: Health and Human Services;
Office: [Empty];
Responsibility: * Oversees administration of benefits to T nonimmigrant
status visa recipients.
Source: GAO analysis of Justice, Homeland Security, State, Labor, and
Health and Human Services documents and interviews.
[End of table]
[End of section]
Appendix III: Diplomatic and Consular Privileges and Immunities from
Criminal and Civil Jurisdiction:
We analyzed key sections of international conventions, acts, and
agreements on immunity to describe in general terms the different
levels of immunity and the protections accorded under each one,
specifically as they relate to investigations of alleged abuse of
household workers by foreign diplomats. We also consulted with the
Department of State on our analysis, which is summarized in table 3.
This table represents only a general description of these privileges
and immunities and, as indicated in the notes following the table,
exceptions may apply for each general category.
Table 3: Diplomatic and Consular Privileges and Immunities from
Criminal and Civil Jurisdiction:
Category: Diplomatic agent[A](E.G., ambassadors and other diplomatic
officers);
May be arrested or detained: No[B];
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: No;
May be prosecuted: No;
Immunity from civil jurisdiction: Yes[C];
Recognized family member: Same as sponsor (full immunity and
inviolability).
Category: Member of administrative and technical staff[C](E.G.,
secretaries, certain] in clerical managers, office managers, and
certain security personnel);
May be arrested or detained: No[B];
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: No;
May be prosecuted: No;
Immunity from civil jurisdiction: Yes, for acts performed in the course
of their official duties. Otherwise, no;
Recognized family member: Same as sponsor. Since family members have no
official duties to perform, they enjoy no immunity from civil
jurisdiction.
Category: Service staff[D](E.G., drivers, cleaners, and building and
maintenance workers);
May be arrested or detained: Yes;
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: Yes;
May be prosecuted: No, for official acts. Otherwise yes;
Immunity from civil jurisdiction: Yes, for acts performed in course of
their duties. Otherwise, no;
Recognized family member: No immunity or inviolability.
Category: Career consular officers[A,D];
May be arrested or detained: No, except for a felony and pursuant to a
warrant;
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: Yes[E];
May be prosecuted: No, for official acts. Otherwise, yes;
Immunity from civil jurisdiction: Yes, for acts performed in the
exercise of consular functions.[F] Otherwise, no;
Recognized family member: No immunity or inviolability.
Category: Honorary consular officers (e.g., American citizens or
permanent resident aliens who perform consular services on a part-time
basis.);
May be arrested or detained: Yes;
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: Yes;
May be prosecuted: No, for official acts. Otherwise, yes;
Immunity from civil jurisdiction: Yes, for acts performed in the
exercise of consular functions.[F] Otherwise, no;
Recognized family member: No immunity or inviolability.
Category: Consular employees[D] (e.g., those who perform the
administrative and technical support services for the consular post);
May be arrested or detained: Yes;
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: Yes;
May be prosecuted: No, for official acts. Otherwise, yes;
Immunity from civil jurisdiction: Yes, for acts performed in the
exercise of consular functions.[F] Otherwise, no;
Recognized family member: No immunity or inviolability.
Category: International organizations staff[G];
May be arrested or detained: Yes[G];
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: Yes[G];
May be prosecuted: No, for official acts. Otherwise, yes.[G];
Immunity from civil jurisdiction: Yes, for acts performed in the
exercise of their official duties. Otherwise, no.[G];
Recognized family member: No immunity or inviolability.[G].
Category: Diplomatic-level staff of missions to international
organizations;
May be arrested or detained: No[B];
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: No;
May be prosecuted: No;
Immunity from civil jurisdiction: Yes[C];
Recognized family member: Same as sponsor (full immunity and
inviolability).
Category: Support staff of missions to international organizations;
May be arrested or detained: Yes;
Residence may be entered subject to law enforcement procedures
generally applicable to U.S. residences: Yes;
May be prosecuted: No, for official acts. Otherwise, yes;
Immunity from civil jurisdiction: Yes, for acts performed in the
exercise of their official duties. Otherwise, no;
Recognized family member: No immunity or inviolability.
Source: GAO.
[A] The Department of State, as a matter of policy, does not normally
accept as bilateral diplomatic agents or as career consular officers
U.S. nationals or legal permanent residents of the United States.
Family members of diplomatic agents enjoy no privileges and immunities
if they are U.S. nationals. Members of the administrative and technical
staff (including their families) and members of the service staff enjoy
no privileges and immunities if they are U.S. nationals, legal
permanent residents, or foreign nationals permanently residing in the
United States.
[B] Reasonable constraints, however, may be applied in emergency
circumstances,e.g., self-defense, public safety, or the prevention of
serious, violent criminal acts.
[C] Certain exceptions apply under Article 31 of the Vienna Convention
on Diplomatic Relations. Immunity from civil and administrative
jurisdiction does not apply in the following circumstances: (1) a real
action relating to private immovable property situated in the territory
of the receiving state unless the diplomatic agent holds it on behalf
of the sending state for the purpose of the mission; (2) an action
relating to succession in which the diplomatic agent is involved as
executor, administrator, heir, or legatee as a private person and not
on behalf of the sending state; (3) an action relating to any
professional or commercial activity exercised by the diplomatic agent
in the receiving state outside his official functions.
[D] This table presents general rules. Employees of certain foreign
countries may enjoy higher levels of privileges and immunities on the
basis of special bilateral agreements.
[E] Note that consular residences are sometimes located within the
official consular premises. In such cases, only the official office
space is protected from police entry unless a bilateral agreement
provides additional protection for consular residences.
[F] This immunity does not apply in respect of a civil action either
(1) arising out of a contract concluded by a consular officer or
employee in which he did not contract expressly or impliedly as an
agent of the sending state; or (2) by a third party for damage arising
from an accident in the receiving state caused by a vehicle, vessel, or
aircraft. See Article 43 of the Vienna Convention on Consular
Relations.
[G] A small number of senior officers are entitled to be treated
identically to "diplomatic agents."
[End of table]
[End of section]
Appendix IV: Comments from the Department of State:
United States Department of State:
Assistant Secretary for Resource Management and Chief Financial
Officer:
Washington, D.C. 20520:
July 11, 2008:
Ms. Jacquelyn Williams-Bridgers:
Managing Director:
International Affairs and Trade:
Government Accountability Office:
441 G Street, N.W.:
Washington, D.C. 20548-0001:
Dear Ms. Williams-Bridgers:
We appreciate the opportunity to review your draft report, "Human
Rights: U.S. Government's Efforts to Address Alleged Abuse of Household
Workers by Foreign Diplomats with Immunity Could Be Strengthened," GAO
Job Code 320533.
The enclosed Department of State comments are provided for
incorporation with this letter as an appendix to the final report.
If you have any questions concerning this response, please contact
Chenobia Calhoun, Office of Protocol at 202-647-1727, David Tyler,
Bureau of Consular Affairs at 202-663-1155 and Susan Benda, Office of
the Legal Adviser at 202-647-1074.
Sincerely,
Signed by:
Bradford R. Higgins:
cc: GAO – Al Huntington:
S/OPR, CA/FO and L:
State/OIG ” Mark Duda:
Department of State Comments on GAO Draft Report:
Human Rights: U.S. Government's Efforts to Address Alleged Abuse of
Household Workers by Foreign Diplomats with Immunity Could Be
Strengthened:
(GAO-08-892, GAO Code 320533):
The Department of State appreciates the opportunity to comment on GAO's
draft report entitled "Human Rights: US. Government's Efforts to
Address Alleged Abuse of Household Workers by Foreign Diplomats with
Immunity Could Be Strengthened."
The GAO report recommends the following to the Secretary of State:
Recommendation 1: To ensure that the Office of Protocol and the Office
of the Legal Advisor are aware of all cases involving alleged abuse of
household workers by foreign diplomats that have come to the attention
of the department, we recommend that the Secretary of State (1)
emphasize to the relevant bureaus and offices the importance of the
Foreign Affairs Manual's requirement to report all cases that come to
their attention and (2) direct the Office of Protocol and the Office of
the Legal Advisor to create a system for collecting and maintaining
records on these cases.
Response: The Department will emphasize to the relevant bureaus and
offices the importance of reporting promptly and fully all cases of
alleged abuse of household workers by foreign diplomats. The Office of
Protocol is creating a system for collecting and maintaining
centralized records on these cases that would allow for ready access to
records of cases that involve individuals with immunity. The records
would include the name of the employer and the employee, the nature of
the allegation and the lever of immunity of the employer.
Recommendation 2: To assist in timely handling of future
investigations, we recommend that the Secretary of State and the
Attorney General establish an interagency process, outlining agreed
upon policies, including timeframes, for determining which
investigative techniques can be used in trafficking investigations
involving foreign diplomats.
Response: The Department acknowledges that it would be useful to
establish an agreed-upon interagency process to address trafficking and
other investigations involving foreign diplomats, including a manner
for timely communicating about the use of investigative techniques in
these cases. While most investigations go forward without consultations
on investigative techniques and, the Department generally answers
promptly, the Department believes it will be useful to work with the
Department of Justice to establish such a process to address novel and
difficult questions regarding investigative techniques.
Recommendation 3: We recommend that the Secretary of State direct the
Bureau of Consular Affairs, in coordination with the Office of Protocol
and the Office of the Legal Adviser, to establish a system alerting
consular officers to seek guidance from State headquarters before
issuing A-3 or G-5 visas to applicants whose prospective employers may
have abused their household workers in the past. For example, if State
headquarters is aware that a foreign diplomat is under investigation
for alleged human trafficking, it could place an alert in the system
advising consular officers to request guidance should an individual
apply for an A- 3 or G-5 visa to work for that diplomat.
Response: The State Department's Bureau of Consular Affairs current
visa name- check systems, including the Consular Lookout and Support
System (CLASS) and Consular Consolidated Database (CCD), are designed
to effectively screen applicants and maintain complete watch lists, and
we will proactively watch-list known abusers in CLASS. With the
deployment of the electronic visa application under the Consular
Electronic Application Center (CEAC), the Visa Office will look for
further opportunities to evaluate employers with the help of
automation. The Department's Office of Foreign Missions (OFM) has a
separate database system known as "The Office of Foreign Missions
Information System" (TOMIS), which is used to track diplomats and
international organization staff duly accredited in the United States.
Currently, consular officers in the field and Washington have access to
TOMIS. OFM will soon upgrade consular access to TOMIS to provide
improved information regarding A-3 and G-5 cases, including sponsor's
status in the United States. TOMIS provides an excellent vehicle for
thorough checks of A-3 and G-5 visa applicants.
Recommendation 4: To better ensure correct and consistent
implementation of A-3 and G-5 visa policies and procedures,
particularly those that outline requirement for employment contracts,
we recommend that the Secretary of State enhance oversight by
establishing a system to spot-check compliance with these policies and
procedures. This spot-check system would allow headquarters to assess
compliance without dedicating the resources needed to review all A-3
and G-5 visas issued in a given year and could be targeted at posts
that issue high numbers of A-3 or G-5 visas or that have identified
difficulties interpreting guidance on these visa classes.
Response: We acknowledge the need for better compliance with policies
and procedures to ensure that employment contracts contain all required
elements and that all contracts are scanned into our system for future
reference in case of alleged abuse. We are developing additional
guidance on this issue for inclusion in the Foreign Affairs Manual
(FAM), and as soon as this guidance is available for publication, we
will remind posts of all requirements with regard to A-3 and G-5 visa
adjudication. The amended FAM notes containing this guidance will also
provide a clearer description of the circumstances establishing reason
for a consular officer to believe that the employer is not in a
position to pay the prevailing wage or may be otherwise abusing an
employee such that the officer should refuse an A-3 or G-5visa to the
employee.
Under current policies and controls, it is primarily the responsibility
of senior consular managers at posts to ensure compliance with visa
adjudication procedures and practices in their consular sections, and
we will remind consular managers of the need to pay particular
attention to A-3 and G-5 visa processes. As far as spot- checking from
headquarters, the Bureau of Consular Affairs will take this under
consideration and review whether such an approach is appropriate and
consistent with judicious use of limited resources. As we move ahead
towards an all- electronic visa application process, development of
which is well underway, there will be greater opportunities to review
and screen visa applications from our domestic operations facilities
prior to the visa interview at post. This type of review is already
occurring for temporary worker visas, and the concept may eventually be
extended to reviewing other visa categories and prerequisite documents
such as employment contracts. This approach promises to increase
standardization and consistency worldwide for all types of visas,
including the specific categories addressed in this report.
[End of section]
Appendix V: Comments from the Department of Justice:
U.S. Department of Justice:
Civil Rights Division:
Office of the Assistant Attorney General:
Washington, D.C. 20530:
July 11, 2008:
Thomas Melito:
Director, International Affairs and Trade:
U.S. Government Accountability Office:
441 G Street, N.W.:
Washington, D.C. 20548:
Dear Mr. Melito:
Thank you for the opportunity to review the final draft of the
Government Accountability Office (GAO) report entitled "Human Rights:
US. Government's Efforts to Address Alleged Abuse of Household Workers
by Foreign Diplomats with Immunity Could Be Strengthened, GAO-08-892."
This draft report was reviewed by the Department of Justice's
components that participated in the review. This letter constitutes the
Department's formal comments. I request that the GAO include this
letter in the final report. The Department's technical comments were
provided under separate cover.
The report defines "alleged abuse" of household workers broadly, to
include not only allegations of human trafficking, but also allegations
of wage and hour violations and other misconduct. The Department of
Justice takes allegations of human trafficking very seriously, and
these prosecutions are a priority of the Department. In the last seven
fiscal years, the Civil Rights Division, in conjunction with the U.S.
Attorneys' Offices, has increased by nearly seven- fold the number of
human trafficking cases filed in court as compared to the previous
seven fiscal years. In FY 2007, the Department obtained a record number
of convictions in human trafficking prosecutions. Since 2005, the
Department has investigated 19 alleged cases of human trafficking by
persons with diplomatic immunity, with many of these cases involving
multiple subjects and victims. Many of these investigations are
ongoing, and one of these investigations has resulted in the Department
of Justice notifying the Department of State that, but for the
subject's immunity, the Department of Justice would seek an indictment
of the subject.
As this report notes, human trafficking investigations and prosecutions
are very complex in general, and investigations of forced household
labor are particularly challenging because the victims are isolated in
private homes, are fearful of retaliation in their home country, and
are often members of vulnerable populations who are unfamiliar with our
legal system or the rights and services available to them. As the
report finds, these obstacles to investigating allegations of forced
household labor are compounded when subjects have diplomatic immunity,
which impacts our ability to conduct certain valuable investigative
techniques that, in other cases, have served to corroborate allegations
of forced labor. Nevertheless, the Department of Justice is committed
to conducting complete and thorough investigations of all allegations.
Recommendation that the Attorney General and the Secretary of State
Establish an Interagency Process Outlining Agreed Upon Policies,
Including Timeframes, For Determining Which Investigative Techniques
Can Be Used In Trafficking Investigations Involving Foreign Diplomats:
The Department of Justice does not object to this recommendation. As
the report notes, the Department of Justice and the Department of State
are already engaging in regular collaborative meetings in an effort to
address the impact of diplomatic immunity on human trafficking
investigations on a case-by-case basis. Further meetings should assist
both Departments in understanding the legal framework for analyzing the
impact of diplomatic immunity on certain investigative techniques and
improve our ability to expediently determine which investigative
techniques are legally permissible. The Department of Justice also
supports the report's recommendation that any agreed upon policies for
resolving these issues include timeframes that ensure deliberations and
decisions on these investigative issues are resolved expediently so as
not to compromise the criminal investigation.
The Department of Justice notes, however, that despite the significant
increase in the trafficking caseload since 2001 using existing
resources, additional resources are needed if we are to continue our
successful investigation and prosecution of human trafficking crimes
and to further our collaborative efforts with the Department of State
and our other partners.
The extensive effort that your staff has put into this report and the
opportunity to work with them on this important issue are appreciated.
Sincerely,
Signed by:
Grace Chung Becker:
Acting Assistant Attorney General:
cc: Ms. Cheryl Goodman:
Assistant Director, International Affairs and Trade:
U.S. Government Accountability Office:
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Thomas Melito, (202) 512-9601, or melitot@gao.gov:
Staff Acknowledgments:
In addition to the individual named above, Cheryl Goodman, Assistant
Director; Elizabeth Singer; Sylvia Bascopé; Mary Moutsos; Debbie Chung;
Terry Richardson; Ray Rodriguez; Jim Strus; and Mattias Fenton made key
contributions to this report.
[End of section]
Footnotes:
[1] For the purposes of this report, the term "foreign diplomats" is
defined to include members of diplomatic missions (diplomatic agents,
administrative and technical staff, and service staff), individuals
assigned to consular posts (consular officers, consular employees, and
honorary consuls), and employees of international organizations or
members of national missions to such international organizations.
[2] Under the Trafficking Victims Protection Act, victims of severe
forms of trafficking are defined, in part, as persons subject to the
recruitment, harboring, transportation, provision, or obtaining of
persons for labor or services, through the use of force, fraud, or
coercion, for the purpose of subjection to involuntary servitude,
peonage, debt bondage, or slavery. Congress enacted the Trafficking
Victims Protection Act (Public L. No. 106-386) in 2000 and reauthorized
and amended this act in 2003 and again in 2005 (Public L. Nos. 108-193
and 109-164).
[3] Foreign diplomats may be entitled to some degree of immunity (full
or partial) or may have no immunity at all. Foreign diplomats' property
also may be inviolable, meaning that it cannot be entered or searched
without the diplomats' consent. See app. III for more information on
the respective privileges and immunities to which various categories of
foreign diplomats are entitled.
[4] In 2006, the woman's lawyers filed a new lawsuit on her behalf,
arguing that because the diplomat and his wife have left the United
States, they no longer hold criminal and civil immunity for activities
unrelated to their official acts. That litigation is pending.
[5] Foreign officials for international organizations may be employees
of these organizations or members of diplomatic missions to the
organizations. In addition, if a foreign diplomat is traveling to the
United States on unofficial business, his or her household workers may
receive B-1 visas.
[6] The Foreign Affairs Manual is a State publication that outlines
guidance and requirements for State Department employees.
[7] The federal minimum wage was recently increased to $6.55 per hour.
Many states also have minimum wage laws. In cases where an employee is
subject to both the state and federal minimum wage laws, the employee
is entitled to the higher of the two minimum wages. The prevailing wage
rate is defined as the average wage paid to similarly employed workers
in the requested occupation in the area of intended employment.
[8] An employer must be entitled to an A-1 or A-2 nonimmigrant visa
classification in order to bring individuals under A-3 visa status to
the United States to work in his or her home. An employer must be
entitled to a G-1, G-2, G-3, or G-4 nonimmigrant visa classification in
order to bring individuals under G-5 visa status to the United States
to work in his or her home. (See Immigration and Nationality Act, as
amended, §101(a)(15)(A)(iii) and §101(a)(15)(G)(v)). As a matter of
policy, A-3 and G-5 visas are issued for a maximum period of 24 months,
or less, if called for by the reciprocity schedule of the country
concerned. In addition, the validity of an A-3 or G-5 visa may not
exceed the validity of the employer's visa.
[9] The number of A-3 visa applications also declined during this
period. State officials told us they could not attribute any policy
changes, procedural reasons, or particular events to the decline in A-
3 visa issuances.
[10] Continued presence is granted to trafficking victims in accordance
with Section 107(c)(3) of the Trafficking Victims Protection Act.
Pursuant to 28 C.F.R. Part 1100.35, Homeland Security has the authority
to grant continued presence to victims of severe forms of trafficking
who are potential witnesses to such trafficking in order to ensure
prosecution of those responsible.
[11] T nonimmigrant status is granted for victims of trafficking under
INA Sec. 101(a)(15)(T). To qualify for a T visa, a victim must be
present in the United States, American Samoa, or the Commonwealth of
the Northern Mariana Islands as a result of trafficking. The individual
also must be a victim of a severe form of trafficking who would suffer
extreme hardship upon removal and has complied with any reasonable
request for assistance in the investigation and prosecution of human
trafficking. The victim does not need to comply with requests for
assistance in investigations and prosecutions if he or she is less than
18 years old.
[12] The United States has entered into a number of treaties that
afford immunities. These treaties include the Vienna Convention on
Consular Relations, 21 U.S.T. 77, T.I.A.S., 6820, the Vienna Convention
on Diplomatic Relations, 23 U.S.T. 3227, T.I.A.S. 7502, and the
Agreement between the United Nations and the United States of America
Regarding the Headquarters of the United Nations, 21 U.S.T. 1418, as
well as bilateral agreements with certain countries. The U.S. Congress
also enacted legislation, the International Organizations Immunities
Act (22 U.S.C. §§ 288 et seq.), to extend certain privileges,
exemptions, and immunities to international organizations and their
employees.
[13] State's Office of Protocol makes available the following online
publications: Diplomatic List ([hyperlink,
http://www.state.gov/s/cpr/rls/dpl/]), which lists members of the
diplomatic staff who have diplomatic rank and their spouses, and
Foreign Consular Offices ([hyperlink,
http://www.state.gov/s/cpr/rls/fco/]), which lists recognized consular
officers in the United States. The United Nations publishes lists of
diplomatic members and their spouses through an online publication
known as the Blue Book ([hyperlink,
http://missions.un.int/protocol/bluebook.html]).
[14] 32.5 percent of these foreign diplomats came from Africa, 30
percent from the Near East, 20 percent from the Western Hemisphere, 15
percent from Asia, and 2.5 percent from Europe.
[15] We only counted cases if we could determine the name of the
diplomat involved and confirm that he or she held immunity, or if we
received enough information from a law enforcement source to ensure
that a diplomat with immunity was involved and that the case was not
duplicative with any other case. Because GAO is not a law enforcement
agency, we did not independently assess the credibility of these
alleged incidents.
[16] Some allegations may be handled by both the U.S. government and an
NGO. To avoid double counting the total number of allegations, we
report each allegation under only one source. For example, if the U.S.
government opened an investigation after receiving an allegation from
an NGO, we included the case in our count of allegations handled by
federal agencies, rather than in our count of allegations handled by
NGOs.
[17] Each alleged incident may involve several instances of alleged
abuse. For example, one alleged incident may involve different forms of
abuse (such as verbal and physical abuse), as well as multiple
instances of the same type of abuse.
[18] One of these investigations was opened in response to three
separate allegations against the same foreign diplomat. In addition,
civil suits were filed in three of these eight investigations. Justice
officials told us that they have opened 19 trafficking investigations
involving foreign diplomats with immunity since 2005. We confirmed that
8 of them were included in our count of 42 distinct alleged incidents.
[19] In this incident, a foreign diplomat brought an individual to the
United States on an A-3 visa and then transferred her to his relatives,
who allegedly abused her.
[20] In one of these cases, the judgment was later reversed on appeal,
when the appellate court, in part, determined that the diplomat's
employment of a household worker was not an act performed in the
exercise of his consular functions and therefore he was not entitled to
claim immunity under the Vienna Convention on Consular Relations.
[21] GAO, Human Trafficking: Better Data, Strategy, and Reporting
Needed to Enhance U.S. Antitrafficking Efforts Abroad, GAO-06-825
(Washington, D.C.: July 18, 2006). See also GAO, Human Trafficking:
Monitoring and Evaluation of International Projects Are Limited, but
Experts Suggest Improvements, GAO-07-1034 (Washington, D.C.: July 26,
2007).
[22] GAO, Human Trafficking: A Strategic Framework Could Help Enhance
the Interagency Collaboration Needed to Effectively Combat Trafficking
Crimes, GAO-07-915 (Washington, D.C.: July 26, 2007).
[23] Justice officials routinely report human trafficking
investigations involving foreign diplomats to State's Office of the
Legal Adviser. According to an official with the Office of the Legal
Adviser, these reports are passed on to the Office of Protocol.
[24] We do not identify these techniques in this report because Justice
and Homeland Security consider this information to be law-enforcement
sensitive.
[25] We requested to review all employment contracts submitted by A-3
and G-5 visa applicants since March 2007 at the four consular posts we
visited. We chose this date because State issued updated guidance to
posts on A-3 and G-5 visas at that time. However, for reasons outlined
in app. I, we were unable to review all relevant contracts at three of
the four posts. For these three posts, we reviewed a random sample of
cases to minimize any biases in selection of cases for review. We
reviewed 45 contracts at the first post, 20 at the second, 57 at the
third, and 16 at the fourth.
[26] This post has created a template employment contract for A-3 and
G- 5 visa applicants that meets State's requirements and is available
on its Web site.
[27] It is possible that a contract in a language familiar to the
applicant was presented at the interview, but was not maintained on
file at the consular post. However, consular officers at this post did
not express familiarity with the requirement that A-3 and G-5 visa
applicants present contracts in a language that they understand and one
officer told us that A-3 and G-5 contracts are always in English.
[28] The guidance refers consular officers to the trafficking hotline
operated by the Department of Health and Human Services--1 (888) 373-
7888. Justice also operates a trafficking hotline, which some NGOs have
called on behalf of foreign diplomats' household workers. This toll-
free hotline is 1 (888) 428-7581.
[29] One of the handouts directs applicants to the "Be Smart, Be Safe"
brochure on State's Web site. However, neither of the handouts is as
thorough as State's brochure in explaining what trafficking is, how to
avoid becoming a trafficking victim, and how to get help if needed.
[30] According to State officials, accessing a copy of the contract is
also useful because its scanned image may provide criminal
investigators with evidence of visa fraud, as the issuance of the
relevant A-3 or G-5 visa was based on the contract.
[31] Consular officials in Washington told us that instituting this
type of policy is not appropriate.
[32] Although State has instituted Consular Management Assessment Teams
to review select consular posts for, among other things, training and
knowledge of consular functions, supervisory reviews of daily
adjudications, and other visa issues, these teams are focused primarily
on preventing visa malfeasance and are, therefore, unlikely to assess
posts' compliance with A-3 and G-5 visa policies and procedures.
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