U.S. Department of State Regulations: A-3 and G-5 Domestic Servant
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 for these State Department Regulations 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. Some NGO’s – understanding both the importance and complexity of payroll and tax compliance rules – require that the sponsoring G-4 contract with a household payroll specialist such as HomeWork Solutions to process their payroll and tax remittances. Fees are generally imposed on the G-4 sponsor by their host organization to offset audit expenses. These fees are waived if the G-4 subscribes to a household payroll service.
A Fair Wage and Work Conditions
A-3, NATO-7 or G-5 domestic workers must be paid at a minimum the greater of the state’s or locality’s minimum wage or the Federal minimum wage. This applies to where the work is performed. Please note that the requirement to meet a “prevailing wage” standard was discontinued in March 2016.
The G-5 or A-3 domestic worker must be paid by the sponsoring employer on either a weekly or biweekly basis, and they 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.
Deductions for meals, lodging and medical insurance are not permitted.
The A-3 or G-5 domestic servant must have a medical insurance policy that meets the US Affordable Care Act standards. The contract must state whether the policy is to be paid by the G-5 or the G-4. World Bank staff must pay for the G-5’s insurance. 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 A-3, NATO-7 or G-5 domestic worker.
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 A-3, NATO-7 or G-5 domestic worker’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.
PAID SICK DAYS: The contract must state the paid sick time benefit offered, if any, and must conform to local law.
VACATION: The contract must state the vacation benefit offered. Typical is 2 weeks of paid vacation after one year of service and going forward.
HOLIDAYS: Paid holidays must be specified in the contract. Many of the sponsoring NGO’s will stipulate to their staff members a mandatory minimum number of paid holidays to be provided the G-5 or A-3 domestic. A typical contract will provide between 7 and 10 paid holidays.
The G-5 or NATO-7 domestic worker 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. Please consult a professional in international income taxation.
» IRS: Exempt Individuals – Foreign Government – Related Individuals (see last paragraph)
» IRS: Aliens Employed in the U.S. – Social Security Taxes
» IRS: Alien Liability for Social Security and Medicare Taxes
» US State Department
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Source: 9 FAM §41.21 Notes July 15, 2011; 9 FAM updates March 8, 2016