Privileges and Immunities

The VCDR, VCCR, and certain bilateral agreements govern the privileges and immunities for diplomatic missions, consular posts, and their personnel and families. Certain representatives to IOs and officers and employees of IOs may enjoy privileges and immunities under the IOIA and various agreements.

In the case of accredited embassy or consular staff enjoying some level of privileges and immunities whose assignment lasts more than six years, the Department may seek confirmation of continued posting by transmitting a note directly to the sending state’s ministry of foreign affairs.

Articles 37 and 38 of the VCDR and Article 71 of the VCCR generally provide that mission members and their families enjoy limited or no privileges and immunities if they are nationals of or permanently resident in the receiving State. Consequently, the mission must promptly notify the Department when any employee or family member obtains LPR status or U.S. citizenship, and it is understood that privileges and immunities will be withdrawn whenever appropriate. As noted above, diplomatic agents and career consular officers are not permitted to be U.S. citizens or LPRs.

Persons assigned to temporary duty at a mission for less than 90 days generally do not enjoy privileges and immunities in the United States. In some circumstances, a principal or dependent will be eligible for an A or G visa and not enjoy privileges and immunities.

If an individual is not notified to OFM within 30 days of arrival, such person may be presumed to enjoy no privileges and immunities.

Justification for Privileges and Immunities

All members who hold A-2 visas accredited to the diplomatic mission or consular posts in the United States will be considered locally employed staff not entitled to privileges and immunities (that is, “permanently resident in” the United States for purposes of the VCDR and VCCR) unless the employing foreign state provides appropriate documentation to indicate that the sending state:

(1) pays the cost of the employee’s transportation to the U.S. from the employee’s normal place of residence; and

(2) undertakes to pay the cost of the employee’s transportation from the United States to the employee’s normal place of residence or to the country of the employee’s next assignment at the end of the employee’s tour of duty in the United States.

Furthermore, all members must hold a diplomatic, official, or service passport as stated above in order to be considered for privileges and immunities.

A. Family Members

The definition of “members of the family” for purposes of the VCDR Article 37, VCCR Article 71, and certain bilateral agreements, and therefore potentially eligible for privileges and immunities may, on the basis of reciprocity, include the principal’s:

o Spouse;

o Same-sex domestic partner (SSDP);

o Unmarried children under 21 years of age;

o Unmarried children under 23 years of age who are attending an institution of higher learning on a full-time basis; and

o Unmarried children who have a mental or physical disability.

Each family member must not be a member of some other household, must reside exclusively in the household of the principal, and must be recognized by the sending State as a family member forming part of the household of the principal, as demonstrated by eligibility for rights and benefits from the sending State. Other applicable conditions and requirements for each are described below. If the Department is not notified of a family member, then such individual is presumed to not be a member of the family for purposes of the VCDR and VCCR.

In accordance with guidance from the White House, the Department is not in a position to accept the accreditation of opposite-sex domestic partners as members of the family for VCDR and VCCR purposes.

Full-time Students; Children with Disabilities

Children no longer enjoy privileges and immunities beginning on their 21^st birthday, unless they are determined to be full-time students or disabled.

Unmarried children who are attending an institution of higher learning on a full-time basis may continue to enjoy privileges and immunities until their 23^rd birthday but only if the mission submits biannually a diplomatic note along with a certified statement from the school’s registrar showing the number of credit hours in which the child is enrolled in the current semester and the anticipated graduation date. Such children are considered to reside exclusively in the principal’s household. Only students attending degree-granting programs at educational institutions in the United States will enjoy privileges and immunities under these guidelines, unless reciprocity is otherwise established.

When notifying children who have a mental or physical disability, the mission must submit a diplomatic note along with a letter from the attending doctor issued within the last six months that describes the nature and expected duration of the condition. If the child is dependent on his/her parents, the child will continue to enjoy their privileges and immunities regardless of age.

More restrictive policies may apply on the basis of reciprocity.

Members of Household (Secondary Dependents)

The definition of “immediate family” members for purposes of the issuance of an A or G visa on a derivative basis (22 CFR 41.21; 9 FAM 402.3-4(J)) is not the same as the definition of “members of the family” for purposes of the VCDR and VCCR. Those individuals who are issued an A or G visa but who are not spouses, SSDPs, or children as described above are considered to be “members of household” (or secondary dependents) and do not enjoy any privileges or immunities. These generally include parents, parents-in-law, and overage children. These individuals must be notified to OFM via the NOA (if arriving with the principal) or separately if arriving later than the principal.

B. ID cards

ID cards are issued to the following:

o Principal employees at diplomatic missions or consular posts enjoying some degree of immunity

o Family members enjoying some immunity (children receive ID cards starting at age 16)

o Spouses (holding an A-1 or A-2 visa) of consular officers and consular employees

Principal employees who do not enjoy privileges and immunities, including U.S. citizens and LPRs, are not entitled to ID cards.

ID cards for those individuals covered by this document are mailed to the address of the relevant mission.

Please refer to circular note No. 15-1169, available at http://www.state.gov/documents/organization/250633.pdf, for information about replacing a lost or stolen ID card.

C. Duty to respect laws

Under international law and practice, persons enjoying immunity from the jurisdiction of a receiving State’s laws nonetheless have a duty to respect those laws. Immunity is not a license for misconduct. It is a doctrine intended to benefit the sending State or IO, not individuals. The Department policy for enforcement of these principles and for responding to the abuse of such immunities is described in 2 FAM 233-234.

In particular, OFM wishes to highlight that if outstanding debts are not settled within a reasonable period (not exceeding six months), continued reliance on immunity to evade a debt may affect a mission member’s continued acceptability in the United States, to the extent consistent with U.S. international obligations. The departure of a mission member without settlement of outstanding debts may affect the Department’s ability to accept a replacement and may also result in the United States taking such measures as may be appropriate.