Foreign nationals working in the US as diplomats or IGO personnel are subject to special immigration considerations that are easy even for immigration lawyers to overlook.
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Visa Categories
Most foreign government and IGO personnel in the US hold special visas collectively known as “A visas” and “G visas,” which consist of the following visa categories:
- A-1 (heads of state/government, ministers, ambassadors, consuls)
- A-2 (other full-time foreign diplomats)
- A-3 (personal employees of A visa holders)
- G-1 (principal representatives of IGO member governments)
- G-2 (other representatives of IGO member governments)
- G-3 (representatives of non-member or unrecognized governments)
- G-4 (IGO officers and employees)
- G-5 (personal employees of G visa holders)
In addition, some foreign government and IGO personnel engaged in commercial roles are present on E-1 or E-2 visas under bilateral investment treaties, and certain foreign personnel covered by the NATO Treaty may enter under special “NATO-1” through “NATO-7” visas that exempt them from the usual immigration process. For simplicity, in this article, all such individuals, together with A and G visa holders, are referred to as “diplomatic visa” holders.
The foreign government or IGO appointing the foreign national must submit a Form DS-2003 or Form DS-2004 to the State Department to give notice of the appointment. This also serves as the visa application for the diplomatic visa holder and their immediate family members.
Diplomatic Immunity
Many diplomats and IGO employees who are not US citizens, as well as their immediate family members, are considered to fall outside the jurisdiction of the United States for certain purposes; this is also known as “diplomatic immunity.” For example:
- They are not required to pay US income taxes on their compensation.
- They are entitled to exemptions from other US taxes such as sales taxes.
- They are entitled to use special diplomatic license plates.
- There are limitations on law enforcement officers’ ability to arrest or search them.
- They have limited liability for civil suits.
On the other hand, those with diplomatic immunity lose some benefits under US law; most notably, their children born in the US are not eligible for citizenship based on their place of birth.
Diplomatic immunity does not apply to all foreign government employees in the US. High-level embassy personnel have the strongest level of immunity; consulate personnel and embassy technical, administrative, and service personnel are only entitled to more limited levels of immunity. Diplomats are issued ID cards by the US government that describe their level of immunity in detail. Diplomatic immunity can also be waived by the diplomat’s home country.
Citizens and Green Card Holders in Diplomatic Positions
US citizens and green card holders may work in certain diplomatic or IGO positions without diplomatic visas, but generally do not enjoy diplomatic immunity.
The US State Department does not accept high-level diplomatic appointments of US citizens or green card holders. Green card holders with diplomatic status (such as through marriage to a foreign diplomat) are generally required to waive the diplomatic rights, privileges, exemptions, and immunities associated with their diplomatic status. This is done through filing a special form with USCIS known as a Form I-508. (French nationals must also file a special Form I-508F due to a bilateral treaty between France and the US.) Failure to do so may result in the green card holder having their status changed to a diplomatic visa by USCIS; in other words, they may lose their green card.
A green card holder may elect to change their status to a diplomatic visa holder, and thus obtain diplomatic immunity, by filing a Form I-407 to renounce their green card, together with a Form I-566 to notify other U.S. government authorities that they are obtaining diplomatic immunity.
Obtaining a Green Card
Most diplomatic visa holders can obtain a green card through the adjustment of status process. The main exception is for personal employees who hold A-3, G-5, or NATO-7 visas; they are not allowed to adjust status and must return to their home country to obtain a US visa.
When a diplomatic visa holder adjusts status to permanent residency, they must file a Form I-508 (and, in the case of French nationals, a Form I-508F) to waive the diplomatic rights, privileges, exemptions, and immunities associated with their diplomatic status. They must also generally file a Form I-566 to notify other U.S. government authorities that they are no longer subject to diplomatic immunity.
The routes for green card adjustment for diplomatic visa holders include:
- Family-based immigration, such as marriage to a US citizen.
- Employment.
- The Diversity Visa lottery.
- Retired G-4/NATO-6 workers and their spouses, as well as children of current or retired G-4/NATO-6 workers, may qualify for green cards if they meet certain U.S. residency requirements.
- A special adjustment process commonly known as Section 13 is available to diplomats with A-1, A-2, G-1, or G-2 status if there are “compelling reasons” that they are unable to return to their home country. No more than fifty Section 13 green cards are permitted each year; they are generally only granted in cases of coups, regime changes, or other violent unrest during the diplomat’s posting to the US, and there must be a specific threat to the diplomat or their immediate family (rather than a general concern about safety).
Changing to Another Non-immigrant Status
Some diplomatic visa holders decide to remain in the US after their diplomatic posting for non-immigrant purposes, such as tourism or education. In these cases, a Form I-539 must be filed with USCIS to change to another non-immigrant visa status, such as B-1/B-2 for temporary visitors or F-1 for students, and a Form I-566 must also be filed to notify other U.S. government authorities that they are no longer subject to diplomatic immunity.