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U.S. Department of State Regulations: A-3 and G-5 Domestic Servants
Source: 9 FAM §41.21 Notes July 15, 2011
9 FAM Changes to Reflect the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008
The U.S. Department of State allows aliens who are diplomats, staff of certain international organizations (often referred to as NGOs or Non-Governmental Organizations), and NATO staff to bring into the United States their servants, personal attendants and other domestics provided certain conditions are met.
The US Department of State's Foreign Aid Manual (9 FAM §41.21, Note 6.2) was amended in September 2001 to require that the following conditions must be satisfied prior to issuance of a visa to the domestic worker. The general conditions are a guarantee that the worker will be paid a fair wage, and an employment agreement or contract in English, translated to the worker's native language. There were additional clarification notes issued September 16, 2009 and again July 15, 2011.
Sponsoring organizations such as the World Bank are anxious to distance themselves from allegations that the organizations condone foreign worker abuses and domestic enslavement and have become very proactive in recent years in monitoring the employment practices of their staff members who sponsor foreign domestic workers. The G-4 sponsor records are subject to audit at any time by the NGO, with particular attention paid to documenting proper wage payments to the domestic and compliance with applicable state and federal tax laws.
A Fair Wage and Work Conditions
The G-5, A-3 or NATO-7 domestic must be paid at a minimum the greater of the state's minimum wage, the Federal minimum wage, or the prevailing wage.
The G-5 or A-3 domestic must by paid by the sponsoring employer on either a weekly or bi-weekly basis, and must be paid by check or electronic funds transfer into a bank account owned exclusively by the domestic. Cash payments are not permitted. The use of time cards to document the payroll calculations is strongly encouraged, and some sponsoring organizations make them mandatory. SAMPLE: Weekly Time Card | SAMPLE: BiWeekly Time Card
Deductions for lodging are not permitted. Meals deductions, if any, must be documented in the employment contract AND may not exceed 20% of wages. If the wage remaining after the deductions for meals falls below the applicable minimum or prevailing wage and the consular official concludes the remaining wage was insufficient, the consular offical may deny the visa request or the visa renewal. Please note that the World Bank and International Monetary Fund disallow ANY deduction for the domestic's meals and lodging (room and board) and have since 2001.
The G-5 or A-3 domestic must have a medical insurance policy. The contract must state whether the policy is to be paid by the G-5 or the G-4. The consular office has the option to deny the G-5 visa application if s/he feels that the resultant wage to the G-5 after the cost of medical insurance is not considered a "living wage."
The G-5, A-3 or NATO-7 domestic is specifically prohibited from being employed by anyone other than the sponsoring alien. This means that the tax accounts must be in the sponsoring alien's name, and the domestic's annual W-2 must list the employer as the sponsoring alien. The sponsoring alien's spouse who may be a US citizen or green card holder may not register as the G-5, A-3 or NATO-7 domestic's employer.
The sponsoring alien, who is the employer, MAY NOT withhold the passport of the G-5, A-3 or NATO-7 domestic.
The G-5, A-3 or NATO-7 domestic may not be required to remain on the premises outside of working hours without compensation.
A Contract or Employment Agreement
The 9 FAM §41.21, Note 6.2 states that a contract is a mandatory requirement because "While the Department ...(is) not in a position to enforce behavior of employers or employees while in the United States, the contract does establish a relationship between the parties for which either may seek redress."
The mandatory employment contract must stipulate to all of the provisions concerning wages, deductions, and employment conditions spelled out in 9 FAM §41.21, Note 6.2.
The sponsoring alien (staff member of qualified organization) must pay the transportation expenses of the sponsored domestic worker from their home country to the United States. At the end of the contract (or when the sponsoring alien departs) the sponsoring alien must provide the transportation from the United States either to the next duty posting location or back to the G-5, A-3 or NATO-7 domestic's home.
The sponsoring alien agrees to pay the G-5, A-3 or NATO-7 domestic for every week that the domestic is legally present and physically able to work in the United States.
VACATION: 2 weeks paid vacation after 1 year of service with sponsor; 3 weeks after 5 years, and 4 weeks after 15 years. Length of service includes the whole span of continuous service with the present contractor or successor, wherever employed, ... (Reg. 29 CFR 4.173)
HOLIDAYS: A minimum of ten paid holidays per year: New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas Day. (A sponsoring organization may substitute for any of the named holidays another day off with pay in accordance with a plan communicated to the employees involved.) (See 29 CFR 4.174)
The G-5 or NATO-7 domestic is subject to the same taxation as any US wage earner. The A-3 domestic is exempt from employment taxes ONLY WHEN PAID DIRECTLY BY THE FOREIGN GOVERNMENT. A-3 domestics paid by an A-1 sponsor are subject to employment taxes. Under certain conditions, the A-3 may be exempt from income taxation on US Source income.