OI 214.2 Special requirements for admission, extension, and maintenance of status.

(a) Foreign government officials.

(1) General.

(i) A-3 extensions. An A-3 alien seeking to extend his/her temporary stay shall submit a completed Form I-539 with fee, his/her Form I-94, and a signed statement as required by 8 CFR 214.2(a)(1) . The statement shall identify the employing A-1 or A-2 by name, visa status and official title; it shall name the embassy, consulate, mission or office for which the A-1 or A-2 works; it shall state the period of time that the A-1 or A-2 intends to continue employing the A-3, and shall describe the duties the A-3 shall perform.

The Service may consult with the Department of State (Visa Office, Diplomatic Liaison Division, CA/VO/P/D, Washington, D.C. 20522-0113) about the eligibility of an individual applying for extension of A-3 status, or an employer's eligibility to employ an A-3.

(ii) Family members of a permanent resident employed in an A-classification occupation. If members of the immediate family of a permanent resident alien have valid passports and A visas, they may be admitted as A nonimmigrants if the permanent resident is in an occupation which would entitle him/her to A-1 or A-2 classification and if he/she has executed a Form I-508 pursuant to section 247(b) of the Act. However, the attendants, servants, or personal employees of such an alien are not entitled to A-3 classification.

(2) Definition of A-1 or A-2 dependent.

(i) This definition is only to be used in determining eligibility for employment authorization. The definition of the term "dependent" in 8 CFR 214.2(a)(2) is only for the purpose of determining eligibility for employment authorization. It does not alter or limit the more inclusive term "immediate family" appearing in section 101(a)(15)(A) of the Immigration and Nationality Act and defined in 22 CFR 41.21(a)(3). It is therefore possible for an alien who is eligible for A classification, as a member of a principal alien's immediate family, to be ineligible for employment authorization.

(ii) Certain bilateral agreements provide for an expanded definition of the term "dependent". 8 CFR 214.2(a)(2)(iv) permits employment authorization, until age 25, for dependent, unmarried sons and daughters who are full-time students and whose principal aliens represent certain countries that signed bilateral employment agreements prior to November 21, 1988. The Department of State has advised the Service that the United States has such agreements with twenty-two countries: Argentina, Australia, Bolivia, Botswana, Brazil, Canada, Colombia, Denmark, El Salvador, France, Grenada, Honduras, Israel, Jamaica, Liberia, Neth erlands, New Zealand, Norway, Peru, Philippines, Sweden, and the United Kingdom.

(iii) Family members of A-2 military trainees not included in the definition of "dependent". Based on representations made by the Department of Defense to the Department of State, dependents of A-2 military trainees are ineligible for employment authorization.

(3) Reciprocity is the basis for dependent employment authorization.

Only dependents of foreign officials representing certain countries are eligible to apply for employment authorization. Eligibility is based on reciprocity between the United States and a foreign country, which takes one of two forms:a formal bilateral agreement or an informal de facto arrangement.

(i) Bilateral reciprocity. A bilateral agreement is a signed, written agreement which has been negotiated by the United States and a foreign country. A bilateral agreement virtually guarantees employment authorization for dependents of certain United States government. In turn, it virtually guarantees employment authorization for dependents of certain officials of that foreign country who are assigned to duty in the United States. The applicability of a bilateral agreement is based on the foreign state whic h employs the principal alien and not the nationality of the principal or dependent when adjudicating an employment request based on a bilateral agreement.

(ii) De facto reciprocity. A de facto arrangement takes effect when the Department of State determines that a foreign country allows appropriate employment on the local economy for dependents of certain United States officials assigned to duty in that foreign country. Based on that determination, dependents of certain government officials of that foreign country assigned to duty in the United States may apply for employment authorization. Dependent employment authorization based on a de facto arrangement is m ore tenuous than authorization based on a bilateral agreement. This is because a de facto arrangement is based on current practices and policies, rather than, on mutually negotiated, well-defined obligations. The applicability of a de facto arrangement is based on the foreign state which employs the principal alien. Additionally, based on a Department of State recommendation, the principal alien must have the same nationality as the country he/she represents. This means dependent employment authorizatio n under a de facto arrangement is precluded, if the dependents' principal alien is not a national of the country he/she represents. As under the bilateral agreements, the nationality of the dependent is immaterial.

(4) Income tax, Social Security liability; non-applicability of certain immunities. (Reserved)

(5) Dependent employment pursuant to bilateral agreements and de facto arrangements.

(i) Bilateral employment authorization. The Service shall give substantial consideration to a favorable recommendation from the Department of State when adjudicating a dependent's application for unrestricted employment under a bilateral agreement. The Service shall approve an application under a bilateral agreement which has a favorable recommendation from the Department of State unless approval would result in violation of law, regulation or written Service policy. An example that would result in a violati on, if granted, is an erroneously favorable recommendation for employment authorization for a dependent son or daughter beyond the maximum applicable age limitations in 8 CFR 214.2(a)(2)(ii) , (iii) and (iv).

(ii) De facto employment authorization. Although a favorable recommendation from the Department of State is a primary consideration when adjudicating an application for dependent employment under a de facto agreement, other substantive considerations must also be weighed. See 8 CFR 214.2(a)(3) and, (5)(ii)(A) through (E) inclusive.

(6) Application procedures, fingerprints waived, local liaison, and policy considerations.

(i) Application procedures involving the Washington, D. C. and New York City District Offices. If the applicant's principal alien is stationed in New York City or Washington, D. C., and the applicant resides in that area, he/she shall submit a completed Form I-765, along with Form I-566 and the supporting documents as required in 8 CFR 214.2(a)(6)(i) to the diplomatic mission which employs his/her principal alien. After receiving the documents from the diplomatic mission, the Department of State will endorse t he I-566 with its findings,and forward all documents to the jurisdiction of the District Director New York City or Washington, D. C., as appropriate, in accordance with mutually agreed upon local procedures. The Service will adjudicate the I-765. Upon a favorable adjudication, the Service will notify the applicant when and where to report for issuance of his/her Employment Authorization Document (EAD). An applicant shall present his/her passport, as evidence of identify, at the time of EAD issuance. An A dependent may elect not to avail himself/herself of the time and/or place designated for EAD issuance for A dependents. He/she may elect to appear at a time and/or place designated for EAD issuance for the general population. Under such circumstances, the Service is under no obligation to give the A dependent any preferential or expeditious treatment.

(ii) Application procedures involving offices other than Washington, D.C. and New York City. If the applicants' principal alien is stationed in a location other than Washington, D.C. or New York City, or if the principal is stationed in either of those two cities and the applicant is residing in another location because of school attendance, the applicant shall submit his/her completed I-566 and supporting documents to the diplomatic mission which employs his/her principal alien. After receiving the documents from the diplomatic mission, the Department of State will endorse the I-566 with its findings and return all documents.

The applicant shall bring his/her passport and I-566 with a favorable endorsement from the Department of State to the office have jurisdiction over his/her place of residence. He/she shall complete an I-765.

Some offices have opted for having the dependent call for an appointment for I-765 adjudication and EAD issuance. Any office instituting telephonic appointment procedures is to notify. Headquarters Adjudications through channels of the details, so that the Department of State may be properly notified. At all other offices, the dependent shall be given priority in the adjudication of his/her I-765 and EAD issuance, if he/she appears at the office during EAD issuance hours and identifies himself/herself as an A dependent.

(iii) Fingerprint requirement waived. The fingerprint requirement shall be waived when issuing an EAD to an A dependent.

(iv) Local liaison. The District Directors at Washington, D.C. and New York City shall maintain local liaison with the Department of State regarding the processing of dependent employment applications.

(v) Policy considerations. Matters involving Service policy shall be referred, through channels, to Headquarters Adjudications.

(7) Period of time which employment may be authorized and other considerations.

(i) Period of time. The maximum employment authorization period is three years. Because of possible foreign policy implications, this maximum shall be granted unless there are articulable and substantive reasons for not granting the maximum. However, care must be exercised not to authorize employment for dependent sons and daughters beyond the age limitations set forth in 8 CFR 214.2(a)(2)(ii) (iii)and (iv).

(ii) Other considerations. Care must be exercised not to grant employment authorization, under a de facto arrangement, to any dependent if the principal alien's official assignment to duty in the United States is expected to terminate within six months; see 8 CFR 214.2(a)(5)(ii)(B). Care must be taken not to grant employment authorization, under a de facto arrangement, to any dependent whose principal is not a national of the country which employs his/her;see 8 CFR 214.2(a)(3) . Additionally, care must be exercised not grant employment authorization to any dependent, under a bilateral agreement or de facto arrangement, who is not habitually residing with his/her principal alien, pursuant to 8 CFR 214.2(a)(2) . A full-time dependent student, who is residing in a different location than his/her principal in order to attend school, is considered as habitually residing with his/her principal alien for purposes of employment authorization.

(8) No appeal There is no appeal to a denial of an application for employment authorization filed by an A-1 or A-2 dependent. However, each denial is to be reviewed by a supervisory examinations officer, or acting supervisory examinations officer, who shall initial and date the denial to show his/her concurrence.

(9) Dependents or family members of principal aliens classified A-3. (Reserved).

(10) Unauthorized employment and other reportable incidents.

(i) Unauthorized employment.

(A) General. In determining whether an A-1 or A-2 dependent may have been engaged in unauthorized employment, review the grandfather provision of OI 214.2(a)(11). Under specific circumstances, nonconforming employment by certain A-1 and A-2 dependents was sanctioned until February 20, 1989.

(B) Reporting requirement. If it comes to the Service's attention that an A-1 or A-2 is engaged in unauthorized employment, the Service shall notify the employer and the alien that the employment is unauthorized. An A-file shall be created, if one does not exist. The incident shall be reported in writing within 72 hours and shall be expeditiously forwarded through official Service channels to Headquarters. The receiving Headquarters unit shall forward a copy of the report to the U.S. Department of State, Vi sa Office, Diplomatic Liaison Division, CA/VO/P/D Washington, D.C. 20522-0113.

The report should include, but is not necessarily limited, to as much of the following information as is available: the case officer's name, title, duty office, and phone number; the alien's name, date of birth, place, place of birth, A number, I-94 number, social security number, Department of State personal identification number (PID), if known; the name of the principal alien, his/her official title, the embassy, consulate, mission, etc. which employs him/her, his or her Department of State PID, if known ; whether the alien ceased working after being notified that the employment was unauthorized; the job the alien was performing, hours per week worked, length of employment, salary and other compensation received; whether social security, income taxes and other applicable taxes are or were being withheld; whether any fraudulent documentation was used to obtain the employment. Additionally, copies of any documentation relating to the unauthorized employment should be attached to the report.

The report shall also indicate whether the incident appears to be isolated or part of a pattern. Indicators of a pattern include, but are not limited to: the alien has a history of unauthorized employment; other members of the alien's family are employed without authorization; the alien's family has a history of unauthorized employment; other aliens who can be identified with the same embassy, consulate, mission, etc. are found to be engaged in unauthorized employment; the employer has a history of employi ng unauthorized aliens.

A copy of the report, all relating correspondence and supporting documents shall be housed in the A-file.

(C) Department of State determination. If the Department of State notifies the Service in writing that in no longer recognizes the aliens as entitled to A-1 or A-2 classification and cancels, the visa, the Service may initiate appropriate action on the basis of the unauthorized employment. If the Department of State notifies the Service in writing that it continues to recognize the alien as entitled to A-1 or A-2 classification, then the Service is precluded from taking action against the alien as long as he/ she remains in A-1 or A-2 status. In either instance, the Department of State's written reply shall be housed in the A-file.

(D) Notification to the field. Upon receiving the Department of State's decision, the receiving Headquarters unit will expeditiously notify the region having jurisdiction and originating office of the decision and forward a copy of the report.

(E) Field office action. The originating field office will take appropriate action in accordance with the Department of State's determination. See paragraph (a)(10)(i)(C) above.

(F) Employer sanctions not affected. These instructions shall in no way be construed as discouraging or preventing the Service from taking appropriate action against the alien's employer under 274A of the Act and 8 CFR 274a .

(G) The effect of violations.

(1) Alien in A-1 or A-2 classification applying for a change of nonimmigrant classification. An alien in A-1 or A-2 classification who engages in unauthorized employment may be allowed to continue in that classification based on recognition by the Department of State: see paragraphs (a)(12)(i) and (ii) below. The Service holds that such recognition and continuation in classification does not eliminate the fact that the alien has violated status under 8 CFR 214.1(e) . Therefore an application for change of nonimmigrant classification under section 248 of the Act filed by an A-1 or A-2 who is/was engaging in unauthorized employment is deniable based on his/her violation of status.

(2) Alien in A-1 or A-2 classification applying for adjustment of status. An A-1 or A-2 alien who has engaged in unauthorized employment and who applies for adjustment of status under section 245 of the Act is subject to section 245(c) of the Act, pursuant to 8 CFR 214.1(e) .

(3) Alien in violation of status other than A status, applying for A status. A change of nonimmigrant status to A requires a favorable recommendation from the Department of State. When a nonimmigrant who has violated status applies for A status, the adjudicator shall consider: the nonimmigrant's immigration history, the nature and length of the violation, the position being offered, the level of Department of State interest, and whether the Department of State knew the nonimmigrant was in violation of status when it made its recommendation. Clarification on the last three points may be obtained from the Department of State. Consultation with the Department of State. Consultation with the Department of State is required prior to denying a case in which State has made a favorable recommendation.

(4) Alien in A-3 classification. An A-3 does not have the protection of an A-1 or A-2 discussed in paragraph (a)(12)(i) below. Therefore any violation of status subjects an A-3 to Service action without referral to the Department of State.

(ii) Other reportable incidents. Service officers shall use the procedures in (a)(10)(i)(B)through (E) above as guidelines when they encounter an A-1 or A-2 nonimmigrant involved in other activities which would make him/her liable to deportation were it not fore the diplomatic protection afforded him/her. When the activity involves a crime involving moral turpitude, a felony-level offense, or or an offense involving controlled substances, telephonic notification to Headquarters through channels shall also be made. While diplomatic immunity may preclude prosecution and Service proceedings, the reporting procedure will provide a mechanism to detail offenses and form a rationale for the Department of State to consider canceling the offender's visa.

(11) Special provision. Based on foreign relations considerations and negotiations with the Department of State, the following policy was established to grandfather nonconforming employment authorization for certain A-1 and A-2 nonimmigrants for up to 90 days after the publication of the November 21, 1988 interim regulations, published at 53 FR 46855, pertaining to A dependent employment. An individual (i) who was considered a dependent of an A-1 or A-2 principal alien under the regulations in effect prior to the above cited interim regulations;and (ii) who had employment authorization under the prior regulations; and(ii) who was not eligible for employment authorization as a dependent under the above cited interim regulations, was allowed to work until February 20, 1989 or until the end of his/her employment authorization period, whichever came first. Such employment by such an individual for the stated period of time shall not in any way be considered or construed to be a violation of nonimmigrant status.

(12) Other factors.

(i) The effect of recognition by the Secretary of State. Section 101 (a)(15)(A)(i) and (ii) of the Act and 8 CFR 214.2(a)(1) provide that an A-1 or A-2 is entitled to that classification as long as he/she is recognized by the Secretary of State. Section 102 of the Act provides that an alien continuing in A-1 or A-2 classification is not subject to most exclusion and deportation grounds. Because of this statutory protection, the Service is precluded from taking action against an A-1 or A-2 who is or was violating status, unless the Department of State authorizes such adverse action by notifying the Service in writing that the A-1 or A-2 is no longer entitled to such classification and that his/her visa is canceled.

(ii) Privileges and immunities. Section 102 of the Act defines the parameters of Service action regarding the admission, exclusion and deportation of A-1 and A-2 aliens. Its provisions are binding upon all Service personnel. Diplomatic and consular privileges and immunities are not only very sensitive issues, but also very complex ones. Service officers should be aware that privileges and immunities can vary greatly. They can vary greatly within a nonimmigrant classification and between two positions which h ave the same official title, but which represent different foreign countries.

(iii) Identification card issued by the Department of State. The Office of Protocol issues identification cards to all diplomatic and consular personnel who are entitled to rights, privileges and immunities. The Department of State considers these cards as the only authoritative identity documents for identifying those entitled to rights, privileges and immunities. Beginning in 1987, three types of cards have been issued: Diplomatic (blue border for diplomats), official (green border for employees), and consu lar (red border for consular personnel). The new identification cards are 3 3/4" x 2 1/2", and contain a photograph of the bearer. The bearer's name, title, mission, city and state, date of birth, identification number, expiration date, and a U.S. Department of State seal appear on the front of the card. A brief statement of the bearer's immunity is printed on the reverse side. Space is also provided for the bearer's signature.

(iv) Sources of additional information.

Additional information regarding diplomatic rights, privileges and immunities is contained in the "Examinations Handbook" Appendix 1-B. More detailed information is contained in the Department of State's publication 9533, "Guidance for Law Enforcement Officers". Law enforcement agencies may request copies from the Department of State, Bureau of Diplomatic Security, Washington, D. C. 20520.

(v) Telephonic inquiries/verifications.

Telephonic inquiries and verifications regarding an individual's privileges and immunities should be directed to the Bureau of Diplomatic Security's Command Center (202/FTS) 663-0812. The center will refer the inquiry to another office, if appropriate. A more detailed phone listings contained in the Department of State's publication "Guidance for Law Enforcement Officers". (TM 185)

(vi) Inquiries from other law enforcement agencies. At times another agency may advise the Service that an A-1 or A-2 was involved in an incident which brings him/her to police attention, and may ask for guidance. The service should advise the other agency that the Department of State issues identification cards to all A-1s and A-2s entitled to rights, privileges and /or immunities. These cards are described in OI 214.2(a)(12(iii) . The agency should be advised that newly arrived personnel may not have yet been issued their cards. If this is the case, or if an individual cannot produce his/her card, the agency must telephone the Department of State; see OI 214.2(a)(12(v). The agency should be advised to telephone the Department of state if the incident is serious and/or if it has any questions, including, but not limited to questions about the identification card, its validity, the treatment that should be accorded the individual etc.

(vii) Requesting reports from other agencies.

Additionally, the agency should be requested to provide the Service with a copy of the report if it meets the criteria in OI 214.2 (a)(10)(ii) or in OI 103.1(g) .

(13) Use of Form I-566 to verify status of individual claiming A status. Form I-566 (dated 2/19/91 and later) shall be used for routine requests to the Department of State's Visa Office to verify the status of an individual claiming entitlement to A status. For this purpose, the form shall be completed as follows:

(i) Complete Part A with information about the subject of the inquiry. If the subject is a dependent or A-3 employee, also complete part B with information about the principal from whom the dependent derives status, or for whom the A-3 works;

(ii) Beside the sub-title "Part C; Type of Request" print in large capital letters, preferably in red ink, "VERIFY STATUS";

(iii) Complete the "from" block of Part G and check the Visa Office block, crossing out "subject has filed under section 13. Please advise this office of your findings."

(iv) Place a photocopy of the completed form in the relating file or work folder and sent both copies of the form to: U.S. Department of State, Visa Office, Diplomatic Liaison Division, CA/VO/P/D, Washington, D.C. 20522-0113. The Department of State will not its findings in Part F and return copy 1 of the form to the officer whose name appears in Part G. (TM 185)