When U.S. President Barack Obama signed a $1.1 trillion umbrella spending bill last week to avert another federal government shutdown, a number of less-noticed provisions appeared to have been inserted quietly, including making aid to Pakistan conditional on its counterterrorism cooperation and preliminary steps towards reform of the National Security Agency’s spying programmes.
It appeared that while most nations in New Delhi’s neighbourhood found prominent mention in the report, India was notable for its absence – but that was only the appearance.
In reality a key provision of the bill that did not get much attention may result in the suspension of all A-3 or domestic worker visas for Indian diplomats coming to the U.S., in the wake of the Khobragade controversy.
For deep within the text of the bill was also a requirement that U.S. Secretary of State John Kerry implement section 203(a)(2) of the William Wilberforce Trafficking Victims Protection Reauthorisation Act of 2008, the George-W-Bush-era policy that cracked down on diplomats abusing their domestic workers on U.S. soil.
It was principally due to this Act, passed initially in 2000, that diplomats of all countries are required to sign labour contracts promising fixed terms of employment including salaries consistent with minimum wage law, the legal instrument that ultimately proved to be the undoing of former Deputy Consul General Devyani Khobragade.
Her December 12, 2013 arrest over visa fraud charges and subsequent strip search in the custody of U.S. Marshals led to compounding diplomatic hostilities, with India’s Ministry of External Affairs enacting retaliatory measures back home, including removing security barriers around the U.S. embassy in New Delhi and abolishing privileges extend to U.S. diplomats.
Although matters appeared to calm down after Ms. Khobragade was asked to leave the U.S. under the protection of diplomatic immunity derived from a her reassignment to India’s Permanent Mission to the United Nations, the crisis seemed to fester after New Delhi raised questions about whether employees of the U.S. Embassy School in the capital allegedly misstated their visa status and evaded certain taxes.
In the bill passed by both houses of the U.S. Congress and signed into law by Mr. Obama last Friday Washington appeared to indicate its resolve to penalise abuse under its domestic worker visa for diplomats’ employees by outlining three conditions under which further issuance of A-3 or G-5 visas could be suspended.
These include “credible evidence,” in the form of, firstly, a final court judgment, including a default or in-absentia judgment, issued against a current or former employee of diplomatic mission in the U.S., after the time period for its appeal has expired.
Second, Mr. Kerry could suspend visa issuance to diplomats if the alleged trafficking victim, in this case Indian national Sangeeta Richard, who is cooperating with authorities in the U.S. along with her family, is issued a T-visa.
Finally, and most important, the visa issuance to Indian diplomats may be halted by “a request by the Department of State to the sending state that immunity of individual diplomats or family members be waived to permit criminal prosecution:
This third outcome is what actually happened on January 9. The day before that date the State Department granted Ms. Khobragade full diplomatic immunity thus completing her transfer to the PMI-UN.
Immediately, and as per past precedent, the U.S. asked India to waive this immunity in order to take forward the criminal charges she faced, for visa fraud and causing false statements to be made to obtain an A-3 visa for Ms. Richard.
India refused to comply, as its priority at that point was to get Ms. Khobragade out of the country and safe from the prospect of being re-arrested and face trial.
While attention has since that point settled around other Indian diplomats in the U.S., by some reports 14 of them, who have brought in domestic workers on A-3 or G-5 visas, the MEA is said to be considering restructuring their employment contract such that they are directly employed by the Government of India rather than the diplomat in questions.
While this would in all probability remove the issue from the jurisdiction of U.S. courts, it has not yet happened and in any case the U.S.’ suspension of visa issuance would represent the closing of a door.
In addition the bill passed by Mr. Obama requires Mr. Kerry to assist in obtaining payment of final court judgments awarded to A–3 and G–5 visa holders, including encouraging the sending states to provide compensation directly to victims.
This proviso, along with the clause on default judgements, may apply in the case of another New York-based Indian diplomat, Neena Malhotra, who faced similar charges under a civil case and ultimately was slapped with a $1.5 million fine by a U.S. judge in 2012, even while she was in India.
Lastly Mr. Kerry is, under the spending bill, required to include a “concise summary” of each trafficking case meeting the criteria outlined in the annual ‘Trafficking in Persons’ report, all potentially designed to signal the U.S.’ seriousness of purpose in pursuing such cases.
The bill provisions in this regard draw strength from the clause of the anti-trafficking Act which authorises domestic worker visa suspension to diplomats if the Secretary of State finds sufficient evidence that “one or more employees of such a mission… have abused or exploited one or more non-immigrants… and that the diplomatic mission… tolerated such actions.”