Fragomen on Immigration: Indian Diplomat Case Highlights Rules and Risks in Sponsoring Temporary Household Workers
January 21, 2014
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The recent diplomatic imbroglio between the United States and India over an Indian consular official’s indictment for visa fraud, based on her alleged mistreatment and underpayment of a domestic servant, appears to have been diffused when the official was allowed to leave the United States. While the dust may thus have settled with respect to some of the most incendiary issues this situation revealed—including local law enforcement’s arrest procedures and the limits of diplomatic immunity—the incident still serves to highlight a little-known provision in U.S. law allowing diplomats and certain others to bring domestic servants from abroad with them to the United States. It also highlights the risks of noncompliance.
The general facts of this case have been exhaustively covered by the media in both the U.S. and India. In brief: Devyani Khobragade, a Deputy Consul General at the Consulate General of India in New York, brought a household worker with her when she came to the United States. She had provided a signed contract and other documentation in support of the employee’s application for a visa at a U.S. consular post in India.
After several months of working for Khobragade in New York, the worker, Sangeeta Richard, complained to Khobragade about her working conditions and said she wanted to return to India. Khobragade allegedly rebuffed Richard’s request and refused to return her passport, which Khobragade had confiscated. Richard eventually left Khobragade’s household and sought assistance from Safe Horizon, an organization which helps victims of human trafficking.
The U.S. Attorney for the Southern District of New York brought charges against Khobragade, and she was arrested, including a strip search that inflamed public opinion in India. When it turned out that the partial diplomatic immunity accorded to consular officials would not protect her, the Indian government transferred her to its Mission to the United Nations, thereby qualifying her for full diplomatic immunity. Shortly thereafter, Khobragade left the United States. Meanwhile, there have been some reprisals by the government of India against U.S. diplomats in India.
The U.S. Attorney’s criminal complaint against Khobragade charged her with visa fraud under 18 U.S.C. Sec. 1546(a) and with making a false statement pursuant to 18 U.S.C. Sec. 1001. Both charges were based on allegations that Khobragade caused to be submitted to the U.S. Department of State an employment contract which Khobragade knew to contain materially false and fraudulent statements and which was provided in support of a visa application she filed on behalf of the person she intended to employ as a nanny and housekeeper in the United States. The types of violations with which Khobragade has been charged could potentially subject her to imprisonment of up to five years for the false statement and up to 10 years for visa fraud.
The complaint and subsequent indictment detailed a scheme whereby Khobragade had Richard sign an employment contract for submission to a U.S. consular post in India showing that Richard would be paid $9.75 per hour and work a 40-hour work week, with overtime paid for any additional hours. Khobragade then had Richard sign a second contract providing for payment of 30,000 rupees per month—approximately $573.00 per week or $6,876 per year, including any overtime hours—which was never submitted to U.S. authorities. According to the indictment, Khobragade actually had Richard “work up to 100 or more hours per week without a single day off, which, based on the promised salary of $573 per month, would result in an actual hourly wage of $1.42 per hour or less.” Khobragade is also accused of confiscating Richard’s passport, and of seeking to retaliate against Richard’s family in India.
Under normal circumstances, a non-citizen would have to be the beneficiary of an approved labor certification from the U.S. Department of Labor to work as a household worker (such as a child care worker, cook or housekeeper) in the United States. However, U.S. law does permit certain foreign nationals (and even certain U.S. citizens who are normally stationed abroad) to bring foreign household workers into the United States on B-1 visas to work for a temporary period of time. Diplomatic or consular officers, who are granted A-1 visas, are permitted to bring servants and other personal employees with them in A-3 visa status. But certain criteria must be met before the employee will be issued an A-3 visa.
As set out on the Department of State’s website, to qualify for a visa as a household worker under these provisions, an individual must submit to a U.S. consulate an employment contract, signed by both employer and employee, which sets out the following:
- Description of Duties. The contract must describe the work to be performed (e.g., housekeeping, gardening, child care), and also must include a statement that the domestic employee shall work only for the employer who signed the contract.
- Hours of Work. The contract must state the time of the normal working hours and the number of hours per week. It is generally expected that domestic workers will be required to work 35-40 hours per week. It also must state that the domestic employee will be provided a minimum of one full day off each week. The contract must indicate the number of paid holidays, sick days, and vacation days the domestic employee will be provided.
- Minimum Wage. The contract must state the hourly wage to be paid to the domestic employee. The rate must be the greater of the minimum wage under U.S. federal and state law or the prevailing wage for the position as determined by the U.S. Department of Labor.
- Overtime Work. The contract must state that any hours worked in excess of the normal number of hours worked per week are considered overtime hours, and that hours in which the employee is “on call” count as work hours. It also must state that such work must be paid as required by U.S. local laws.
- Payment of Wages. The contract must state that wages will be paid to the domestic employee either weekly or biweekly, with no deductions for meals, lodging, medical care, medical insurance, or travel. The contract must also state that after the first 90 days of employment, all wage payments must be made by check or by electronic transfer to the domestic worker’s U.S. bank account. Neither members of a foreign diplomatic mission, nor members of the family employing the domestic employee, should have access to the domestic worker’s bank account.
- Transportation to and from the United States. The contract must state that the domestic employee will be provided with transportation to and from the United States.
- Other Required Terms of Employment. The contract must state that the employer agrees to abide by all federal, state, and local laws in the United States. The contract also must include a statement that the domestic worker’s passport and visa will be in the sole possession of the domestic worker. In addition, the contract must state that a copy of the contract and other personal property of the domestic employee will not be withheld by the employer for any reason. The contract must include a statement that the domestic worker's presence in the employer's residence will not be required except during working hours. The contract must also include a statement by the employee, promising not to accept any other employment while working for the employer.
In addition to diplomats, foreign nationals coming to the United States temporarily in B, E, F, H, I, J, L, M, O, P or Q nonimmigrant status can bring a personal or domestic employee with them provided certain criteria are met with respect to a pre-existing employer-employee relationship abroad. (See 22 C.F.R. § 41.31; 9 FAM 41.31, N9.3.) Similarly, U.S. citizens who have a permanent home abroad or are stationed in a foreign country, and who are either visiting the United States or are being transferred back on temporary assignment, can also bring their household workers with them lawfully to the United States. In all cases, the terms of employment must conform to applicable federal, state and local laws.
As stated on the DOS website, “The U.S. Government considers ‘involuntary servitude’ of domestic workers, as defined under the Trafficking Victims Protection Act (TVPA), to be a severe form of trafficking in persons (TIP) and a serious criminal offense. Victims of involuntary servitude are offered protection under the TVPA. The term 'involuntary servitude' includes a condition of servitude induced by means of any scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or physical restraints, or the abuse or threatened abuse of the legal process.”
This is not the first time a foreign consular or diplomatic officer has been accused of mistreating a domestic servant. The U.S. Government Accountability Office (GAO) has produced a report documenting more than 40 known instances between 2000 and 2008 in which household workers have allegedly been abused by foreign diplomats, and this is undoubtedly only a fraction of actual cases. These workers are real victims of abusive working conditions and flagrant violations of U.S. law.
From the perspective of the employers of foreign household workers under the provisions of law discussed above, this recent indictment indicates that diplomatic status is not enough to shield diplomats from being charged criminally. U.S. citizens or nonimmigrants who take advantage of the law allowing them to bring in domestic workers from abroad are likewise not immune from prosecution for underpayment or mistreatment of such workers—and do not have the privileges of diplomatic immunity or the power of a foreign government to protect them.
