2 FAM 220
IMMUNITIES OF U.S. REPRESENTATIVES AND ESTABLISHMENTS ABROAD
(CT:GEN-590; 03-30-2023)
(Office of Origin: L/DL)
2 FAM 221 IMMUNITIES Generally
2 FAM 221.1 Accreditation
CT:GEN-590; 03-30-2023)
a. The privileges and immunities of diplomatic mission (i.e., an embassy or embassy branch office) personnel are generally described in the Vienna Convention on Diplomatic Relations (VCDR). The privileges and immunities of personnel at a consular post (e.g., a consulate general, consulate, or consular agency) are generally described in the Vienna Convention on Consular Relations (VCCR). To benefit from privileges and immunities under the VCDR or VCCR, U.S. personnel must be accredited as members of a diplomatic mission or consular post.
b. A U.S. government direct hire employee under chief of mission authority who meets the following criteria is generally accredited as a member of the administrative and technical (A&T) staff (if assigned to an embassy or embassy branch office) or a consular employee (if assigned to a consular post). Specific authorization from the Bureau of Global Talent Management (GTM) is not required to accredit U.S. government direct hire employees as A&T staff members or consular employees if the criteria are met.
(1) The individual’s work at post is of at least 90 days’ consecutive duration;
(2) The individual resides in the metropolitan area of the post and generally works on mission premises;
(3) The individual’s activities support the function of the diplomatic mission or consular post (such activities usually include, or are characterized by work on policy issues, as distinct from directly engaging in programmatic activities);
(4) The individual works on matters related to the mission or post on an essentially full-time basis (usually at least 35 hours per week); and
(5) The individual is performing the functions commensurate with his or her status (e.g., administrative and technical staff are “employed in the administrative and technical service of the mission”).
c. A U.S. direct hire employee authorized a diplomatic or consular title is accredited as a diplomatic agent or consular officer. GTM authorizes diplomatic and consular titles, when warranted, to U.S. direct hire employees serving under chief of mission authority who are U.S. citizens and not nationals of, or permanently resident in, the receiving state. For Department employees, this takes place as part of the assignments process before an employee’s arrival at the mission. For all other U.S. government direct hire employees, agencies must submit to GTM requests for titles before the employee’s arrival at the mission. Other agencies must confirm at the time of the request that the individual is a U.S. citizen and not a national of, or permanently resident in, the receiving state. When reviewing whether a title is warranted, GTM will consider U.S. national interests and may, at its discretion, grant requests for diplomatic or consular titles when the criteria in 2 FAM 221.1, paragraph b. are met, the individual otherwise qualifies for a particular title under U.S. law and practice, and an individual’s primary job duties and responsibilities involve either (1) a liaison function in which the employee works out of the embassy or consular post and liaises with central government officials on policy issues, as opposed to supporting the internal functions of the embassy or consular post, or (2) traditional consular functions (e.g., the issuance of visas and passports) in the consular section of an embassy or at a consular post. In rare instances, an individual who performs liaison functions may work out of a host government or similar facility in the metropolitan area of the post instead of on mission premises.
d. Posts must not notify individuals with a diplomatic or consular title that was not authorized by GTM.
e. Posts must not, except as authorized under 2 FAM 221.1 paragraph f, seek or assist in obtaining diplomatic or consular privileges and immunities (by means of normal accreditation to the host government or otherwise) for persons who are not assigned to official duty at the U.S. government mission for at least 90 days’ consecutive duration; physically residing at post; and generally working on mission premises, regardless of the status that may be accorded such persons by local authorities. Persons not normally entitled to privileges and immunities under the foregoing restrictions include but are not limited to international organization personnel, federal agency personnel not meeting the above criteria, retired U.S. government officials, contract personnel, private U.S. citizens (grantees, teachers, clergy, etc.), and representatives of state governments.
f. The Department recognizes that in rare cases, it may be in the national interest to seek the accreditation of personnel in circumstances other than those described in 2 FAM 221.1 paragraph b. In such cases, the Under Secretary for Management (or in cases described in 3 FAH-1 H-2438.1-1, DGTM) may authorize limited exceptions to the general rules cited in paragraphs b and c of this section, applicable to specific individuals, classes of individuals, or posts. Among other factors, the reciprocal implications should be taken into consideration.
g. It may also be in the national interest, under certain circumstances, to accredit persons who are not U.S. government employees (including U.S. government personal services contractors; commercial contractors performing business on behalf of the U.S. government; and grantees). For example, personnel performing such highly sensitive functions as embassy construction, security, or communications (who may be clear targets for hostile intelligence penetration) and narcotics eradication, enforcement, and interdiction in remote locations may present a compelling case for accreditation. Therefore, the Department may authorize limited exceptions to the general rules cited above, applicable to specific individuals, classes of individuals, or posts.
h. Requests for the accreditation of persons who are not U.S. government employees abroad should be made to GTM, who will consider the request in light of U.S. national interests, including the following factors. Requests may be granted at the discretion of GTM when the following criteria are generally satisfied:
(1) The individual’s work at post is of at least 90 days’ consecutive duration;
(2) The individual resides in the metropolitan area of the post and generally works on mission premises;
(a) Accreditation of such personnel is necessary to overcome significant barriers to entry or residence in the receiving state; and/or
(b) Security concerns warrant accreditation, as evidenced by the nature of the work performed and/or the level of security clearance;
(3) The individual’s activities support the function of the diplomatic mission or consular post; and
(4) The individual works on matters related to the mission or post on an essentially full-time basis (usually at least 35 hours per week);
(5) The employment relationship and, in particular, the provisions of the contract provide adequate departmental and chief-of-mission control over either the personal services contractor or the commercial contract firm, its individual employees (non-personal services contractors), and its subcontractors and their individual employees, where relevant, including a right of withdrawal from the host country of individual personnel.
i. Even where accreditation appears to satisfy the criteria in 2 FAM 221.2 paragraphs h(1) through h(5), the Department may decline a request to accredit an individual when it considers that the privileges and immunities that would be granted by the receiving state are inappropriate to such personnel or where accreditation would not otherwise serve national interests. The following factors may be relevant to declining such a request:
(1) Accrediting such personnel will create obligations or expectations of reciprocal treatment for similar personnel assigned to the United States, and the likelihood of reciprocal treatment is small; or
(2) Host-state numerical limitations on diplomatic or consular personnel would or may be exceeded by the accreditation of such personnel.
j. Persons who are not U.S. government employees but who are approved for accreditation will normally be notified at the administrative and technical staff or consular employee level. For these procedures, see 3 FAH-1 Exhibit 2439.
k. The Department recognizes that under certain circumstances it may be in the national interest to seek privileges and immunities for persons other than those persons who can be accredited to a U.S. government mission. In such cases, the Department may authorize negotiation and conclusion of an international agreement to provide such privileges and immunities. Any such negotiations require advance Department approval pursuant to the procedures set forth in 11 FAM 720.
2 FAM 221.2 Dual or Multiple Accreditation
(CT:GEN-576; 12-06-2021)
a. Posts may seek to accredit personnel with regional responsibilities at more than one post. Decisions regarding accrediting individuals at more than one post are generally made by the management sections of the posts involved with the concurrence of L/DL and the executive office of the regional bureau(s) involved. Before seeking dual or multiple accreditation, posts should request step-by-step guidance from Office of the Assistant Legal Adviser for Diplomatic Law and Litigation (L/DL). Factors to consider in determining whether multiple accreditation is appropriate and possible include the following:
(1) Whether the individual’s core job responsibilities include regular travel to, and work in, a state other than the one in which the individual resides. The regional duties and responsibilities of such individual filling an authorized USDH position should be reflected in the NSDD-38 justification, either during the initial establishment of the position or reprogramming an existing authorized position at post.
(2) An assessment of the risk as to whether the individual may be exposed to legal proceedings in a state other than the one in which the individual resides. In that regard, posts should consider:
(a) the nature of the individual’s work in the state other than the one in which the individual resides (e.g., how likely is it that it could result in a legal proceeding against, or request for testimony from, the individual?);
(b) Relations with that state (e.g., might an individual be unfairly targeted by that state for working for the U.S. government?).
(3) Whether the posts concerned are able to seek dual or multiple accreditation. Dual or multiple accreditation is not possible if either receiving state objects and may not be possible if the state in which the individual does not reside has imposed numerical limitations on the number of U.S. mission members it accepts.
b. In general, the same title authorized by GTM, if any, applies at all posts of accreditation.
2 FAM 221.3 Notification of Family Members
(CT:GEN-576; 12-06-2021)
a. The United States recognizes only the following category of individuals, residing with the mission member, as “members of the family forming part of the household” of a mission member for purposes of the VCDR or VCCR:
(1) Spouse; or
(2) Unmarried children (1) under 21 years of age, (2) under 23 years of age who are attending an institution of higher learning on a full-time basis in the receiving state, or (3) 21 years of age or older who due to mental and/or physical limitations are incapable of self-support as determined for purposes of 14 FAM 511.3. Other age limits for unmarried children may apply with regard to certain receiving states.
Note: In rare instances in which a hardship exception is authorized by the Director General of the Foreign Service as described in 3 FAM 1615, a same-sex domestic partner, who is not a spouse, may also qualify as a “member of the family forming part of the household.”
b. Posts must not notify or seek privileges or immunities on behalf of other relatives of a mission member.
c. Whenever possible, posts are encouraged to notify family members employed at post and who meet the criteria in 2 FAM 221.1, paragraph b, as both family members and in their own right, as administrative and technical staff of an embassy or consular employees at a consular post. Family members who are authorized a diplomatic or consular title may be accredited as diplomatic agents or consular officers with that title. Accrediting family members, in their own right, as A&T staff or as consular employees, ensures that they benefit from appropriate privileges and immunities while employed at post (e.g., family members of A&T staff members do not otherwise enjoy any civil immunity under the VCDR and family members of accredited members of consular posts otherwise enjoy no immunities under the VCCR) and residual immunity after the employment ends.
2 FAM 221.4 Protests When Immunities Are Violated
(CT:GEN-590; 03-30-2023)
When the local authorities refuse to recognize the immunities to which the U.S. government considers it is entitled (with, e.g., regard to mission premises, personnel, archives or documents, or property), posts must report such action to the Department. Post must consult with L/DL, prior to making appropriate representations to the host government ministry of foreign affairs and/or local authorities. Such representation should be based on the VCDR, the VCCR, or such bilateral or other agreement or international law as may have provided the basis for privileges and immunities in consultation with L/DL. Posts may not invoke the VCDR or the VCCR or other principles of diplomatic law without prior approval of L/DL.
2 FAM 221.5 Waiver of Immunity
(CT:GEN-590; 03-30-2023)
a. The immunities provided mission members under the VCDR, VCCR, or other international agreements will not be waived by the individual or post, except with the prior express consent of the Department, which normally must be requested via front channel cable (using the KLIG tag) or other written correspondence and, in any event, must always be in writing. Such requests should be addressed to the attention of L/DL and must set forth the basis for the request for waiver of immunity in sufficient factual detail to afford the Department an adequate basis to act thereon. Other Department offices (e.g., the post management officer PMO) should be consulted and or listed as addressees, as appropriate.
b. Follow these guidelines in the types of cases described in paragraphs (1), (2), and (3):
(1) In cases involving official activities of Department personnel, the key factor in determining whether immunity may be waived is the potential impact upon the interests of the U.S. government. If the interests of the U.S. government are not likely to be injured as a result of the waiver, and if the interests of the individual whose immunity is to be waived are not likely to be adversely affected, there is a presumption in favor of waiver and it will be authorized if the interests of justice will be served;
(2) Except as provided in 2 FAM 221.5 subparagraph (3), the immunity of a Department employee will not normally be waived in private (i.e., non-official) matters unless the employee consents or unless there is evidence that the waiver is essential to protecting the interests of innocent third parties, the U.S. government, or both; and
(3) In private domestic relations matters (including divorce, separation, maintenance, child custody, and child support), the Department will adhere to the following guidelines:
(a) If both parties consent and the action is pursued in the United States, the Department will normally grant any necessary waiver of immunity;
(b) If one party is in the United States and the other party is at post, a waiver will be granted for the purpose of allowing service of process on the latter if that party consents;
(c) If one party is in the United States and the other party is at post, a waiver of immunity will be authorized to allow service on the party at post absent that party’s consent only if the waiver is necessary in order to prevent undue hardship on the party seeking service or family members, and if the action is to be pursued in the United States; and
(d) Waiver of immunity will normally be granted to allow a domestic relations action to be pursued in the host country if both parties consent and if the prosecution of the action will not adversely affect the interests of the U.S. government.
2 FAM 221.6 Residual Immunity
(CT:GEN-576; 12-06-2021)
The immunities discussed in these sections generally only apply for the duration of an individual’s assignment at post. After someone’s assignment ends and he or she departs post (or after a reasonable period of time has passed to enable him or her to depart) all immunities cease to apply – except that immunity persists with regard to official acts that were performed on behalf of the mission in the exercise of diplomatic or consular functions.
2 FAM 221.7 Duty to Respect Local Law
(CT:GEN-576; 12-06-2021)
All persons enjoying privileges and immunities under the VCDR, VCCR, or other international agreements have a general duty to respect the laws and regulations of the receiving state.
2 FAM 221.8 Notifying Facilities as Part of Mission Premises
(CT:GEN-576; 12-06-2021)
Posts should notify the host government via diplomatic note of all facilities that are part of the diplomatic mission or consular post, including annexes and warehouses that are used for mission purposes. Posts should keep a copy of such diplomatic notes. Sending such notes puts the host government on notice of what facilities constitute the diplomatic mission or consular post so that the obligations and duties under the VCDR or, as appropriate, the VCCR can be asserted and fully respected. The notification also has implications for physical security and other purposes. For these reasons, posts should generally also comply with requests from host governments to identify and verify the location of U.S. diplomatic and consular facilities. Further, posts should notify the host government if changes to the activities or occupants of a USG facility change whether the facility is or is not used for mission purposes. Questions about notification of facilities should be directed to L/DL; L/DL will coordinate with L/BA and L/M/DS as needed.
2 FAM 222 DIPLOMATIC IMMUNITIES
2 FAM 222.1 Embassy Staff
(CT:GEN-576; 12-06-2021)
The status of accredited employees at the embassy is governed by the VCDR, which provides different levels of immunities, depending on whether an individual is accredited as a diplomatic agent, member of the administrative and technical staff, or as a member of the service staff. Embassy staff members who are nationals of, or permanently resident in, the receiving state generally enjoy no privileges or immunities.
2 FAM 222.2 Diplomatic Agents
(CT:GEN-590; 03-30-2023)
a. Diplomatic agents accredited to a foreign government enjoy complete immunity from the criminal jurisdiction of all courts and tribunals of the receiving state, comprehensive immunity from the civil jurisdiction of such courts and tribunals, and complete testimonial immunity. They cannot be prosecuted, punished, or compelled to testify in the country to which accredited and, with three narrow exceptions, cannot be sued civilly.
b. Diplomatic agents also enjoy full personal inviolability (from arrest or detention) and inviolability of their personal papers, correspondence, property (including vehicles), and residences.
c. The family members (2 FAM 221.3, paragraph (a)) of diplomatic agents enjoy the same immunities and inviolabilities. Accredited family members accepting employment abroad lose civil and administrative immunity for activities relating to non-diplomatic employment and would be subject to the payment of taxes on income (3 FAM 4125).
2 FAM 222.3 Administrative and Technical Staff
(CT:GEN-576; 12-06-2021)
a. Administrative and technical (A&T) staff accredited to a foreign government enjoy complete immunity from the criminal jurisdiction of all courts and tribunals of the receiving state, immunity from the civil jurisdiction of such courts and tribunals with regard to acts performed in exercise of their official duties, and complete testimonial immunity. They cannot be prosecuted, punished, or compelled to testify in the country to which they are accredited and can only be sued civilly in cases outside the course of their duties.
b. A&T staff members also enjoy full personal inviolability (from arrest or detention) and inviolability of their personal papers, correspondence, property (including vehicles), and residences.
c. The family members of A&T staff members enjoy the same immunities and inviolabilities, except no immunity from the civil jurisdiction of the receiving state.
2 FAM 222.4 Local Staff Subject to Military Service
(CT:GEN-590; 03-30-2023)
Principal officers (defined as “the officer in charge of a diplomatic mission, a consular mission (other than a consular agency), or other Foreign Service post”) should not request special exemptions from military service for locally employed staff, official residence staff, or personal domestic workers and must obtain Department approval for any exceptions to this rule.
2 FAM 222.5 Local Staff Names and Addresses Furnished to Local Governments
(CT:GEN-590; 03-30-2023)
As also stated in 3 FAM 7561, posts may, when requested, furnish to the local government a list of names and addresses of locally employed staff unless the chief of mission deems it undesirable or disadvantageous to cooperate for administrative, political, or security reasons. In only the most exceptional circumstances, should a request for the names (versus addresses) of locally employed staff be declined, considering that reciprocally, the United States requires foreign missions in the United States to notify the Department of the names of local staff (for establishing the exemption of personnel from the requirements of the Foreign Agents Registration Act of 1938, as amended). Providing a list of names is not in lieu of the usual practice of notifying the receiving state of the employment of its nationals, where notification to and acceptance by the receiving state is a condition of extending them immunity.
2 FAM 222.6 Inviolability of Premises and Archives of Diplomatic Missions
(CT:GEN-590; 03-30-2023)
a. Embassies, chanceries, and all associated buildings used for purposes of the mission are inviolable under the VCDR. Such premises may not be entered or searched. The receiving state is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
b. The documents and archive of the embassy are also inviolable and thus their disclosure cannot be compelled by the receiving state.
2 FAM 222.7 Diplomatic Couriers
(CT:GEN-576; 12-06-2021)
The VCDR, Article 27(5) provides that diplomatic couriers carrying official documents indicating their status “shall be protected by the receiving state in the performance of [their] functions.” They also enjoy “personal inviolability,” which means that they “shall not be liable to any form of arrest or detention” while carrying out their duties. In addition, under Article 27, the packages constituting the diplomatic bag (“pouch”), which are marked as such may not be opened, including by x-ray inspection, or detained.
2 FAM 223 CONSULAR IMMUNITIES
2 FAM 223.1 Consular Officers and Employees
(CT:GEN-590; 03-30-2023)
a. The status of accredited employees at a consular post is usually governed by the VCCR, which generally provides that consular officers and consular employees are immune from the local (criminal, civil, and administrative) jurisdiction for all acts performed in exercise of consular functions. Consular officers and employees (and service staff at a consular post) may not be compelled to testify concerning matters connected with the exercise of consular functions. Honorary consular officers also benefit from these jurisdictional and testimonial immunities.
b. Family members of consular officers, consular employees, or members of the service staff do not enjoy immunities or inviolabilities under the VCCR unless they are accredited as consular employees or consular officers in their own right.
c. It must be ascertained in each instance whether a bilateral treaty or agreement about immunities of consular officers and employees is in effect with respect to a particular country, in which case any additional privileges and immunities granted by the terms of the treaty or agreement also apply.
2 FAM 223.2 Inviolability of Consular Premises and Archives
(CT:GEN-576; 12-06-2021)
a. The VCCR provides that those portions of the consular premises “that are used exclusively for the work of the consular post” are inviolable. The residences of consular officers, in the absence of a treaty or agreement so providing, are not inviolable.
b. Consular archives and documents are inviolable.
2 FAM 223.3 Locally Employed Staff of Consular Posts
(CT:GEN-576; 12-06-2021)
Immunities generally do not extend to locally employed staff who are nationals of, or permanently resident in, the country in which a consular post is located. When there is a consular convention between the United States and the country concerned, the local employee will be accorded the immunity specified in the convention.
2 FAM 224 OTHER U.S. REPRESENTATIVES
(CT:GEN-576; 12-06-2021)
Immunities, if any, of U.S. representatives other than individuals accredited to an embassy or consular post depend primarily on specific treaties or agreements in each case and may vary accordingly from country to country. Questions concerning immunities of such representatives are referred to the Department (L/DL) when necessary.
2 FAM 225 ABUSE OF PRIVILEGES AND IMMUNITIES
2 FAM 225.1 Evasion of Personal Obligations
(CT:GEN-576; 12-06-2021)
An accredited U.S. mission member, or other representative of the United States, must not take advantage of the protection afforded by reason of the officer’s official position nor should the officer evade the settlement of just obligations. A U.S. mission member, or other representative of the United States, may neither waive his or her immunities nor assert them before a court or administrative body without the authorization of the Department.
2 FAM 225.2 Traffic or Parking Tickets
(CT:GEN-590; 03-30-2023)
a. All U.S. mission members must follow local traffic laws.
b. A U.S. mission member who is issued a parking ticket, speeding ticket, or other traffic ticket or citation that imposes a fine, but does not require an appearance before a court or administrative body, generally must pay a ticket he or she does not seek to challenge on factual grounds. This requirement is consistent with Department policy concerning the payment of traffic and parking citations by foreign diplomats in the United States.
c. If a ticket requires appearance before a court or administrative body, or a mission member wishes to challenge a ticket in a foreign court or administrative body on factual grounds, the mission member must seek guidance from the management section or human resources office at post, which will consult with L/DL on any immunity considerations. If the individual enjoys applicable immunity, post would need to request a limited waiver of the individual’s immunity from the Department per 2 FAM 221.5 prior to any appearance before the court or administrative body.
d. A mission member should also seek guidance from the management section or human resources office at post if the individual believes extraordinary circumstances warrant a course of action other than the individual paying or challenging the ticket.
2 FAM 225.3 Property Held in Personal Capacity
(CT:GEN-590; 03-30-2023)
If a diplomatic agent holds real or personal property in a foreign country in a personal capacity, as distinguished from an official capacity, not necessary or incident to the agent's official assignment, he or she may be subject to the local laws in regard to such property.
2 FAM 225.4 Importation and Sale of Personal Property
(CT:GEN-590; 03-30-2023)
(Uniform State/AID/Commerce/Agriculture)
a. These provisions apply to the personal effects of all U.S. government employees (including contractor employees) and their spouses and dependents, regardless of agency, under the jurisdiction of the chief of mission.
b. Personal property imported into host countries by U.S. citizen employees under diplomatic or other privileges and immunities must be for their bona fide personal use or that of their dependents. The chief of mission must establish procedures to ensure that subsequent sales of such property comply with bilateral agreements, international treaties, and host government laws.
c. Where there is reason to believe that bona fide personal use would not be or has not been the intended purpose of the importation, the chief of mission or designee, after coordination with the Office of Inspector General/Office of Investigation (OIG/INV), will investigate the importation, or the request thereof if the importation has not yet been authorized. If, based on the investigation, the chief of mission determines that the property was imported or intended to be imported under diplomatic or other privileges and immunities primarily for the purpose of sale at a profit, the chief of mission may take one or more of the following actions:
(1) As appropriate, deny request to import the property or deny the sale;
(2) Require the employee to repay the U.S. government the original cost of shipping the property to post;
(3) Deny use of embassy facilities for conversion or transfer of funds;
(4) Withhold certification of employee’s diplomatic or other privileges to sell, register, or transfer title to the property;
(5) Require property to be reexported at employee’s expense; and/or
(6) Take such other action as may be appropriate, including recommending disciplinary action against the employee.
d. See also 3 FAM 4100, Employee Relations, and 14 FAM 615.7, Limitations at Specific Posts, for treatment of this subject.
2 FAM 225.5 Notifying the Office of Inspector General (OIG)
(CT:GEN-576; 12-06-2021)
Promptly notify the Office of Inspector General/Office of Investigations (OIG/NIV) if there is reason to believe that U.S. or host-country laws or regulations have been violated.
2 FAM 226 REPORTING ON LITIGATION
(CT:GEN-590; 03-30-2023)
a. Each post must promptly inform the Department of any litigation or proceeding in local courts or administrative bodies in which an accredited employee may become involved in the employee’s private capacity. The post’s report should be addressed to the Department (L/DL) in the form prescribed in 2 FAM 283 for reporting suits against the United States. The post’s initial report must include detailed information regarding the accreditation of the employee to the foreign government for purposes of privileges and immunities.
b. Accredited mission members are responsible for promptly reporting to their posts of assignment proceedings before foreign courts or administrative bodies in which they may become involved in any capacity (as plaintiff, defendant, or witness). Before participating, mission members must seek guidance from the management section or human resources office at post, which will consult with L/DL on any immunity considerations. Individuals cannot assert or waive their own immunities. If an individual who enjoys applicable immunity seeks to participate in a proceeding, post would need to request a limited waiver of the individual’s immunity from the Department per 2 FAM 221.5 prior to any appearance before the court or administrative body.
c. See 2 FAM 283 Suits in Foreign Countries Against the United States, for suits against U.S. officers and employees in their official capacity.
2 FAM 227 REQUESTS FOR ASYLUM Or Protection BY FOREIGN NATIONALS
2 FAM 227.1 Policy
(CT:GEN-576; 12-06-2021)
a. Due to the wide variety of circumstances that may be involved, requests for protection made by foreign nationals at posts should be dealt with on an individual basis. The ability of the U.S. government to give assistance will vary with the location and circumstances of the request.
b. The Bureau of Intelligence and Research issues annual instructions to posts by cable on how to handle such requests. Appropriate officers, as identified in the cable, should review that material.
c. If after a thorough review of the instructions, a post feels it needs further guidance in an emergency situation, it should contact the Operations Center. The Operations Center will alert the appropriate Department personnel who will provide post with assistance on how to proceed.
2 FAM 227.2 Background
(CT:GEN-481; 11-02-2017)
a. General Policy: The general policy of the United States is to encourage local or regional resettlement of refugees and international burden-sharing among governments providing third-country resettlement opportunities. Therefore, in routine cases involving asylum seekers from third countries, refer individuals to the United Nations High Commissioner for Refugees (UNHCR), or, if the host country has satisfactory asylum procedures, to the host government for adjudication of the refugee’s asylum claim.
b. Asylum: Posts may not grant or in any way promise “asylum” to any foreign national. Although foreign nationals may request “asylum,” posts should be aware that the term has specific meaning in U.S. immigration law. Persons may apply for asylum under U.S. law only if they are physically present in the United States or at a land border or port of entry and may be granted asylum only if they meet the definition of a refugee under U.S. law and are otherwise admissible. The United States does not recognize the granting of asylum at posts abroad. Requests for asylum by persons in the United States are handled by the Department of Homeland Security (DHS) and the immigration courts of the Executive Office for Immigration Review within the Department of Justice. Refer questions relating to such procedures to the Department, Bureau of Democracy, Human Rights and Labor, Office of Multilateral and Global Affairs (DRL/MLGA).
c. Refugees: Posts may not in any way promise that an individual will be admitted to the United States as a refugee. A U.S. embassy may refer any individual who appears to meet the definition of a refugee to the U.S. Refugee Admissions Program for consideration. Embassies may refer someone to ensure protection or provide a durable solution in compelling circumstances. Due to resource constraints and other foreign policy concerns, posts usually refer individuals only because of a significant humanitarian concern, a particular U.S. government interest, or an especially close link to the United States. Acceptance of a referral by the program does not guarantee that an individual will be admitted to the United States as a refugee. See 9 FAM 203, Refugees and Asylees, for guidance on embassy referrals.
2 FAM 228 THROUGH 229 UNASSIGNED