Diplomats and Their Special Privileges

by Olivia M. Scofield

Over 100,000 representatives of foreign governments, including their dependents, are in the United States, and many of these foreign representatives are entitled to some degree of diplomatic immunity and certain privileges. We have written about a variety of immigrant and nonimmigrant visa types for foreign nationals, but diplomats are, in a word, special. We thought we’d take a closer look at visa types for diplomats as well as their privileges while in the US and, importantly, whether they are really responsible for those unpaid parking tickets!

What is a diplomat?

The term “diplomat” is a broad term that generally denotes a person who will represent the interests and policies of their nation in a foreign nation. According to the Vienna Convention on Diplomatic Relations—which is one of the biggest influences on US policy on the acceptance and treatment of foreign officials and which the United States has ratified—a “diplomatic agent” is the head of or a member of a diplomatic staff of a foreign country’s (or sending state) “mission” in the foreign country (in our case, the United States). A diplomatic mission essentially represents the sending state in the United States and, as an entity, it is tasked with protecting the sending state’s interests, negotiating with the United States, observing the United States’ conditions and developments and reporting back to the sending state, and promoting friendly relations and developing economic, cultural, and scientific relations between the two countries.

In practice, the United States Department of State (DOS) is responsible for the accreditation of ambassadors and charges, foreign mission diplomatic and consular officers, and officers of international organizations. In making a determination of whether a foreign national should be accredited as a member of a foreign mission or designated international organization (and therefore receive certain privileges and immunities that are traditionally afforded to a diplomat), DOS strives to be consistent with the Vienna Conventions on Diplomatic Relations and other agreements. DOS can also consider a sending state’s treatment and acceptance of the US’s own diplomats abroad.

What is the diplomatic visa classification and who is eligible for it?

An A visa is the proper visa classification for diplomats and other foreign government officials traveling to the US to engage solely in official duties or activities on behalf of their national government. In order to qualify for the A visa, generally, the duties of the diplomat or foreign official in the US must be governmental in character or nature, as determined by the Department of State—trips of a non-governmental, commercial, or tourist nature are insufficient for the A visa. Heads of states, however, qualify for an A-1 visa no matter the purpose of the travel.

Diplomats and foreign government officials, such as ambassadors, public ministers, career diplomats, or consular officers, who are traveling to engage solely in official duties on behalf of a national government may be eligible for the A-1 visa. Other officials and employees of a foreign government who will serve at a diplomatic mission or consular post and perform duties that are inherently governmental in character or nature can qualify for the A-2 visa. This visa is generally appropriate for those not holding a diplomatic rank or consular office title, but rather is for members of administrative and technical staff or service staff. A visa holders enjoy certain privileges and immunities (see below for more on this).

Other visa classifications for diplomats and other foreign officials include the G visa, which is for individuals entering the US in order to perform official duties relating to designated international organizations. There are several subcategories of the G visa depending on the nature of the foreign official and their purpose for travel: G-1 visas are for members of a recognized government’s permanent mission to an international organization; G-2 visas are for representatives of a recognized government traveling to the US to attend meetings of a designated international organization; G-3 visas are for representatives of a non-recognized or non-member government traveling to attend such meetings; and the G-4 visa is for individual personnel who seek to enter the United States in order to fill an appointment at a designated international organization (for example, the United Nations).

NATO visas are for those seeking to enter pursuant to a provision of the North Atlantic Treaty Organization. This includes national representatives, international staff, and immediate family members, as well as the personal employees or domestic workers of certain NATO visa holders. G and NATO visa holders generally enjoy some level of privileges and immunities (see below for more on this).

Finally, the C-2 and C-3 visa are ”transit visas” for certain foreign officials. The C-3 visa enables foreign government officials to travel through the US to conduct official business on behalf of a foreign government. The C-2 visa allows certain foreign nationals (including representatives of members of the United Nations, experts performing missions for the United Nations, representatives of nongovernmental organizations, or others invited to the United Nations for official business) to pass through the United States in order to proceed to the United Nations Headquarters, where they must remain continuously until they leave the United States. These visa holders must be in immediate and continuous transit through the US, meaning they must travel through and depart as quickly and directly as the normal course of travel and the elements reasonably allow. Holders of the C-3 visa generally also enjoy some diplomatic privileges and immunities.  

What is diplomatic immunity exactly?

“Diplomatic immunity” is a doctrine of international law in which certain officials from foreign governments are not subject to the jurisdiction of local courts and authorities of the hosting country for their official activities (as well as their personal activities, to a large extent). This doctrine is based on historical custom and international practice, and was adopted as international law in the Vienna Conventions on Diplomatic Relations and Consular Relations, and by the US in the 1978 Diplomatic Relations Act. This immunity has also been extended to certain members of international organizations through the International Organizations Immunities Act and other agreements. The extent of immunity and privileges depends on the representative’s position and duties.

What kind of privileges do diplomats receive?

Privileges of diplomats and certain foreign government officials begin even before they enter the US. While most foreign nationals who are applying for a visa abroad must attend an interview at a US Embassy or Consulate, diplomats and foreign officials eligible for certain A, C, G, and NATO visas generally do not need to attend an interview. Additionally, there are no processing fees, and they may be exempt from fingerprinting requirements.  Further, if qualified for these visa classifications, then the foreign national may not be refused entry to the US based on grounds that would usually lead to exclusion. They must still provide the US Embassy or Consulate with the required documentation, which includes a note from the sending government, mission, organization, or authority confirming the official purpose of the travel.

Once in the US, a diplomat may not be arrested or detained (though reasonable constraints may be applied in emergency circumstances involving self-defense, public safety, or the prevention of serious criminal acts), the residence of the diplomat may not be entered to be searched, the property of the diplomat may not be searched, the diplomat may not be subpoenaed as a witness, may not be compelled to testify, may not be subject to most civil suits, and they may not be prosecuted under criminal law, no matter the severity of the alleged crime. When related to official functions, the diplomat is exempt from most taxes, as well as customs duties and baggage inspection

According to the NATO Agreement on national representatives and international staff, the privileges and immunities afforded to NATO visa holders is determined by the status of the national representatives and international staff and depends on the nature of the visa holder’s position and purpose for travel. 

What about those parking tickets?

Contrary to popular belief, diplomats may be issued a traffic citation! In general, a diplomat is expected to respect fire regulations, and tort, criminal, and property law, even though the law cannot be enforced against them by a US legal process

Do embassy staff enjoy the same privileges and immunities as diplomats?

Members of administrative and technical staff of a diplomatic mission enjoy much of the same immunities and protections that diplomats traditionally receive, though they only receive civil immunity for official acts. Members of the service staff enjoy no such privileges or immunities except for official acts. Consular officers, meanwhile, enjoy some privileges and immunities while in the US, but only as it relates to their official acts. These individuals can be arrested or detained pursuant to a warrant if the offense is a felony, they can be prosecuted for misdemeanors (though not detained for these crimes while being tried), and their property can be searched. Consular employees and honorary consular officers enjoy no privileges and immunities apart from the immunity from being subpoenaed or prosecuted for official acts. 

Members of international organizations on G visas receive varying levels of immunity depending on the duties performed. Diplomatic-level staff of missions to international organizations receive the same immunities and privileges as other diplomats (examples include the Secretary General of the United Nations and Principal Resident Representatives of the International Monetary Fund and the World Bank). Otherwise, international organization staff are subject to US law except for in cases of subpoena or prosecution for official acts

Official clerical staff accompanying a representative of a NATO member state also receive some limited privileges and immunities, including legal immunity for official acts, inviolability for papers and documents, and the same exemption from immigration restrictions, alien registration, and national obligations as diplomats of a comparable rank, and certain customs duties exemptions.

When can diplomatic immunity be revoked?

While diplomats and foreign government officials enjoy a level of immunity from having US law applied to them by US law enforcement and officials, the sending government or state may waive immunity on behalf of the diplomat, or investigate the diplomat itself. Alternatively, the US government may declare a diplomat a “persona non grata” and ask that the diplomat be recalled. If not recalled by the sending country within a reasonable time, the diplomat’s diplomatic status may no longer be recognized (and they would therefore no longer receive immunities and privileges), and they would be required to leave the US. Such a response might arise in situations such as when the diplomat is believed to have been guilty of serious misconduct but the sending state refuses to waive their immunity from the US legal process. 

How long does diplomatic immunity last?

Immunity for official acts lasts indefinitely, but criminal immunity expires when the diplomatic tour ends. Therefore, if a diplomat returns later to the US in a private capacity, they could be criminally prosecuted. Similarly, a warrant entered against the diplomat while enjoying immunity could bar the subsequent issuance of a visa for that person to later re-enter the US. 

How are immediate family members of diplomats treated?

Immediate family members of diplomats holding the A-1, A-2, C-3, G, and NATO visa classification are also eligible to receive the same visa classification, and family members of certain diplomats receive the same immunity and protections that the diplomat family member is eligible to receive (unless the family member is a legal permanent resident or a US citizen). Since diplomats are not subject to the jurisdiction of US law in most cases, a child born in the United States to a foreign diplomatic officer (including ambassadors, ministers, charges d’affaires, counselors, secretaries and attaches of embassies and legations, and members of the Delegation of the Commission of the European Communities) is not considered a US citizen at birth, as is generally the case for most people born on US soil. Instead, the child may be considered a permanent resident and receive a Green Card. 

Personal employees, attendants, domestic workers, or servants of those who hold A-1 or A-2 visas may be eligible to be issued an A-3 visa, if they meet the necessary requirements. A-3 applicants must attend an interview at a US Embassy or Consulate abroad and provide proof that they will receive a fair wage sufficient to financially support themselves (and comparable to wages offered in the geographic area of employment in the US), as well as an employment contract and evidence that they will perform the contracted employment duties. 

So there you have it. There are quite a few perks and advantages to being a diplomat on foreign soil. Now if only the mayor of New York could just figure out a way to get those parking tickets paid.