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, Jul 29, 2008
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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.
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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Recommendations for Executive Action
Recommendation: To improve the U.S. government's process for preventing and responding to allegations of household employee abuse by foreign diplomats, and 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, the Secretary of State should (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.
Agency Affected: Department of State
Status: Closed - Implemented
Comments: In their official comments to GAO, State agreed with the recommendations in GAO's report. State created an internal working group consisting of representatives from the Office of the Chief of Protocol, the Office of the Legal Adviser, the Office to Monitor and Combat Trafficking in Persons, and the Bureaus of Consular Affairs and Diplomatic Security, as well as relevant regional bureaus. The working group, which met for the first time in January 2010, convenes on a periodic basis to share information, discuss ongoing cases and coordinate Department strategy to address this issue. According to State, members of the working group regularly communicate relevant information within the group. To address the second part of GAO's recommendation, the Office of the Chief of Protocol has created a centralized database to record cases involving alleged abuse of domestic workers by diplomats. This database includes the name and nationality of the employee and the diplomatic employer, as well as the immunity level of the diplomat, the nature of the allegations, and any pertinent documents. In addition, the Office of the Legal Adviser maintains files on the cases against diplomatic personnel filed by former domestic workers alleging abuse, mistreatment, and/or wage disputes.
Recommendation: To improve the U.S. government's process for preventing and responding to allegations of household employee abuse by foreign diplomats, and to assist in timely handling of future investigations, the Secretary of State, the Attorney General, and the Secretary of Homeland Security should 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.
Agency Affected: Department of Justice
Status: Open
Comments: In 11/2008, Justice said it and State are already meeting regularly to address the impact of diplomatic immunity on human trafficking investigations. Continued collaboration should help both departments better understand the legal framework for analyzing the impact of diplomatic immunity on certain investigative techniques and improve the ability to expediently determine which techniques are legally permissible. Justice supports GAO'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 investigations.
Recommendation: To improve the U.S. government's process for preventing and responding to allegations of household employee abuse by foreign diplomats, and to assist in timely handling of future investigations, the Secretary of State, the Attorney General, and the Secretary of Homeland Security should 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.
Agency Affected: Department of State
Status: Open
Comments: In commenting on GAO's report, the Department of Homeland Security asked to be added to this recommendation, which was originally directed to the Secretaries of State and the Treasury. We are monitoring agency actions to implement the recommendation.
Recommendation: To improve the U.S. government's process for preventing and responding to allegations of household employee abuse by foreign diplomats, and to assist in timely handling of future investigations, the Secretary of State, the Attorney General, and the Secretary of Homeland Security should 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.
Agency Affected: Department of Homeland Security
Status: Open
Comments: In 11/2008, State agreed that it would be useful to work with Justice to establish an agreed-upon interagency process to address novel and difficult questions regarding investigative techniques. In 9/2010, State said its Office of the Legal Adviser and Justice's Human Trafficking Prosecution Unit are in agreement that over the past two years, the process in place to facilitate information exchange and advice has been extremely effective in assisting the timely handling of investigations by the Department of Justice. Based on that experience, which has shown that because each case is so different, both offices agree that the case-by-case consultative process approach is more effective than a more formalized procedure and that a more formal process is neither necessary nor desirable.
Recommendation: To improve the U.S. government's process for preventing and responding to allegations of household employee abuse by foreign diplomats, the Secretary of State should 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.
Agency Affected: Department of Homeland Security
Status: Closed - Implemented
Comments: According to State, in its effort to enhance its ability to monitor and improve the treatment of A-3 and G-5 visa holders, the Department implemented a new requirement in October 2009 that diplomatic missions inform the Office of the Chief of Protocol, in advance, of any anticipated A-3 or G-5 visa applicants. Diplomatic missions and international organizations must now submit a "Pre-Notification" form for all proposed domestic workers. After checking the employer's record, a Protocol Officer then enters this information into TOMIS, a consolidated database, indicating that the applicant is in pending status. Consular officers around the world now must verify that the Department has been advised that a specific mission employee intends to bring a domestic worker to the United States before they will issue an A-3 or G-5 visa. Thus, under this new system, an A-3 or G-5 visa will not be issued to an applicant without prior approval by the Office of the Chief of Protocol. In addition, the Office of the Chief of Protocol is implementing a system to flag certain cases for which consular officers must consult with the Office of the Legal Adviser prior to issuance of an A-3 of G-5 visa.
Recommendation: To improve the U.S. government's process for preventing and responding to allegations of household employee abuse by foreign diplomats, and 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, the Secretary of State should 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 Affected: Department of State
Status: Open
Comments: In 11/2008, State said it was developing additional guidance for inclusion in the Foreign Affairs Manual and will remind posts of all requirements with regard to A-3 and G-5 visa adjudication. In 9/2010, State said the Bureau of Consular Affairs (CA) stands ready to assist posts that have questions about specific cases or compliance with policies and procedures regarding protections for domestic workers of foreign diplomats, such as ensuring that employment contracts contain all required elements and that all contracts are scanned into our system for future reference in case of alleged abuse. Within CA, the Office of Fraud Prevention Programs (CA/FPP) and the Visa Services Office (CA/VO) work together in explaining to the field how to comply with these policies. For example, CA/FPP recently shared a report of theirs that identified A-3 and G-5 visa issuances worldwide that were not registered in TOMIS the database maintained by the Office of the Chief of Protocol. Regional officers in the Post Liaison Division of CA/VO immediately sent a reminder to posts on the requirement to verify that A-3 and G-5 applicants who need to be in TOMIS have been properly pre-notified to the Office of the Chief of Protocol before visas are issued. The Post Liaison and Diplomatic Liaison Divisions of CA/VO also included guidance in its June 2010 Consular Issues Cable, a monthly cable to all posts. After identifying posts that issue high numbers of A-3 or G-5 visas and may need additional support interpreting guidance, regional officers are also reaching out with individual reminders and requests for posts to review specific cases from the report. Senior consular managers at post continue to have the responsibility to ensure compliance with visa adjudication procedures and practices in their consular sections, and have been reminded of the need to pay particular attention to A-3 and G-5 visa processes. Per 9 FAM 41.113 PN17, senior consular managers must spot-check at least 10 percent of all NIV issuances. The Foreign Affairs Manual (FAM) now includes expanded guidance on terms and conditions of employment that are required for domestic workers of foreign diplomats, including what must be included in mandatory employment contracts. The FAM gives consular officers a clear description of the circumstances establishing a reason to believe that the employer is not in a position to pay the prevailing wage such that the officer should refuse an A-3 or G-5visa to the employee. CA/VO is also working to clarify the FAM notes that explain when and how to properly pre-notify the Office of the Chief of Protocol. Posts will be made aware of these updates. In the future, Global Visa System (GVS) will make it possible to run automatic checks against TOMIS before issuing an A-3 or G-5 visa. Such a system will increase standardization and consistency worldwide for these visa categories and create less reliance on spot-checks.