Human Rights: U.S. Government's Efforts to Address Alleged Abuse of Household Workers by Foreign Diplomats with Immunity Could Be Strengthened
Released: 2008-07-29T00:00:00

Letter

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. 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 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 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.

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—which permits an alien to be present legally in the United States and to seek work during the investigation—and T nonimmigrant status—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. 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 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 with some level of immunity abused them. We confirmed that 17 of the incidents alleged by these A-3 or G-5 visa holders were handled by federal agencies. These 17 incidents can be categorized as follows: 10 alleged incidents of human trafficking, which resulted in eight human one investigation of alleged visa fraud; 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. 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. 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.

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, 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.

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 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.

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 shall be at the prevailing wage for a 40 hours 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.

We identified some contracts where the employee would be paid overtime “in accordance with 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. 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. 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. 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. 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. As such, they do not routinely and independently monitor compliance with A-3 and G-5 policies and procedures.

Conclusions

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 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.

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.

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.

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.

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.

Appendix IV: Comments from the Department of State

Appendix V: Comments from the Department of Justice

Appendix VI: GAO Contact and Staff Acknowledgments

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.