Mr. COHEN. I think this whole line of questioning directly points up the need for you to meet with us in private session to explore exactly what sort of alternatives the State Department is pursuing to seek compliance with our law.

Mr. WALENTYNOWICZ. I have no objection to that..

Mr. EILBERG. How is it determined which of the foreign officials are eligible for diplomatic immunity? Who makes such determination, the Foreign Mission itself or the Department of State?

Mr. WALENTYNOWICZ. Let me have Mr. Shamwell respond to that. Mr. SHAMWELL. The foreign officials who are to be attached to the particular diplomatic mission must be cleared by their government with the Office of Protocol, of the Department of State, Mr. Chairman. It is up to the foreign government to designate an individual for a particular position. It is only through the individual's holding a particular position that he enjoys immunity. A person is either in a diplomatic category as a diplomatic officer or a member of the administrative and technical staff of a diplomatic mission, or a member of the service staff for a diplomatic mission; but in all cases, the individual must be assigned to a particular position or particular category. Mr. EILBERG. Is reciprocity a factor here?

Mr. SHAMWELL. As I mentioned before, in a few cases there are reciprocal limitations on the number of persons who may be assigned to a particular category, for instance, some foreign countries limit the number of diplomatic officers which the United States assigns to its mission in that country, and we would reciprocate on that basis. That is the only way that reciprocity applies. And again, there is in some cases a screening process. If a particular individual is notified to the Office of Protocol to a particular position and if it is determined on our side that that individual was not qualified for assignment in a diplomatic slot, as opposed to a nondiplomatic position, the government will be so notified and will be requested to withdraw the assignment or to redesignate the person into another category.

Mr. EILBERG. I understand by virtue of the Consular Treaty with the Soviet Union that Soviet citizens entering the United States in A-3 visas are considered in diplomatic status with the attendant immunity. Thus, this matter is distinguished from other A-3 issuances. Please explain how this matter came about and, furthermore, please explain whether immunity is given to other A-3 personnel or support personnel in other foreign missions.

Mr. WALENTYNOWICZ. I think what you are referring to is the fact that under the bilateral Consular Treaty with the Soviet Union, Mr. Chairman, all members of the consular mission are entitled to full immunity from criminal jurisdiction. These persons, however, are not in diplomatic status and do not enjoy full diplomatic immunity, which is something quite broader than mere immunity from criminal process.

Mr. EILBERG. And is the same kind of immunity given to other personnel that are categorized as A-3?

Mr. WALENTYNOWICZ. You are talking about the foreign personnel in the Soviet Union?

Mr. EILBERG. We were talking about Soviet personnel. I am wondering whether that same principle extends to personnel in other countries.

Mr. WALENTYNOWICZ. We have a number of recent bilateral consular treaties-approximately five-which extend to consular officers and other members of the consular post broader immunities than have previously and traditionally been accorded to consular officials in this country. However, the fact that these persons enjoy broader immunity than has been customary does not extend to them, Mr. Chairman, diplomatic status.

Mr. EILBERG. Mr. Cline?

Mr. CLINE. An unusual situation has come to our attention recently for two A-3's attached to the Soviet Union. There is a question whether that child, for instance, enjoyed U.S. citizenship at birth; and whether that child would be under diplomatic status unless he had that citizenship. Would you care to comment?

Mr. SHAMWELL. I think the case you are referring to involves the birth of the child at a time when that individual did not enjoy diplomatic status; but when that individual did enjoy consular status. Am I correct in that?

Mr. WALENTYNOWICZ. Is that the problem we wrote to the subcommittee about?

Mr. CLINE. Therefore, not all A-3's attached to the Soviet Union enjoyed diplomatic status?

Mr. DAVIS. It was an A-2.

Mr. CLINE. The case I have referenced is A-3.

Mr. SHAMWELL. Then we are talking about-well, you are mentioning visa categories. I can respond only if I am referred to the particular positions.

Mr. CLINE. I appreciate the fact we are getting into citizenship, which is outside your jurisdiction, but in order to get to this point, we have to understand just what visa status these people have enjoyed.

Mr. SHAMWELL. True. Well, the point is if the individual is not subject to U.S. laws, then any children born to him, who would also qualify for immunity, would not be considered to be U.S. citizens. Now, in the case of certain A-3's, under our domestic law their offspring are subject to the jurisdiction of the United States. And when I say A-3's, I am referring to members of the service staff of a mission. Even though they enjoy full immunity, their dependents do not. This is under our domestic law.

We ratified in 1972 the Vienna Convention on Diplomatic Relations which changes the status of members of the family of, roughly speaking, of the A-2 category. But since your question relates to A-3's, then a child of an A-3 would fall within the jurisdiction of the United States.

Mr. EILBERG. Mr. Cook?

Mr. Cook. Thank you, Mr. Chairman.

Mr. Fish, unfortunately, was tied up in a markup session this morning and asked me to convey his regrets that he was not able to be here. He also asked me to convey his interest in the issues raised today, particularly the chairman's concern with the abuse of A-2 and the line of questioning Mr. Cohen pursued with respect to his bill and the problem with A-2's in his area. I just wanted to follow up that line of questioning with a question.

You said in your testimony that you were aware of the overall problem and not the specific problem. I take it that refers to Mr. Cohen's discussion of the tariffs? Is that correct?

Mr. WALENTYNOWICZ. The problem of reciprocity.
Mr. COHEN. In other words, with a Canadian worker?

Mr. WALENTYNOWICZ. Correct. By "overall" I meant that we are aware of the overall problem of need of reciprocity. In other words, we don't want to be in the position where American citizens are treated worse or differently than other citizens and by "differently" I mean differently in a discriminatory sense.

Mr. Cook. And he conveyed to me that in the situation he is aware of and that is with respect to the Canadian construction workers-there were positions in Canada at the time and that the U.S. workers were not allowed to come into Canada to take those jobs; but at the same, a few years ago, when the construction business was better than it is at this time in this country, Canadian workers were imported into areas within his district. I guess that was around the State of New York. So, I wondered whether you have brought that matter to the attention of the Canadian Government through the normal diplomatic channels and whether you are working on efforts to resolve that?

Mr. WALENTYNOWICZ. I have no knowledge of that particular problem. I don't know whether that has or has not been brought to the attention of the Canadian Government.

Mr. EILBERG. I think it would be very useful if we could continue this dialog tomorrow, rather than putting it back to some other time. Are you able to come back tomorrow? I want to give you some time to think the question over and other questions as well. Is that agreeable to you?

Mr. WALENTYNOWICZ. It is.

Mr. Cook. Thank you, Mr. Chairman. All I would say is that if the matter has been brought to the attention of the Canadian Government, could you let us know for the record and notify Mr. Fish in a letter?

Mr. WALENTYNOWICZ. I would be happy to do so.

Mr. Cook. And include it in the record.

Mr. WALENTYNOWICZ. You have my assurance that it will be done. [The following response was submitted by the Department of State in a letter dated September 24, 1976, from Leonard F. Walentynowicz, Administrator, Bureau of Security and Consular Affairs:]

This matter has never been the subject of either formal diplomatic discussions between the Canadian Government and the Department of State, or of informal discussions at a working level between representatives of the Department of Labor or the Immigration and Naturalization Service and their Canadian counterparts.

The Canadian and American Governments have in the past held discussions and worked out reciprocal solutions to specific problems such as railroad workers who must service tracks and equipment which cross the international border. But the discussions have never been extended to include the general exchange of workers between our two countries.

Up to now such problems have not been a matter of major bilateral concern between our two governments. Temporary employment of Canadian (or other nationality) workers is based on the specific needs of a United States employer. The Immigration and Naturalization Service will approve an H-2 nonimmigrant visa petition for an alien temporary worker only after the Department of Labor has determined that there are no unemployed American or permanent resident alien workers with similar skills locally available to perform the job. The temporary worker provision of the Immigration and Nationality Act was designed to assist United States employers, not alien workers. There is no basis for reciprocity pro

vided for in Section 101 (a) (15) (H) of the Act. Thus if the Canadian Government (or any other government) did not accord similar treatment to American workers, there is no legal requirement to protest or discuss the matter.

As a matter of fact, the Canadian Government does offer similar treatment to American (or other nationality) workers. There is a provision in the Canadian Immigration Law which is similar in effect to the H-1 visa category. It allows persons of exceptional merit and ability such as corporation executives, university professors, medical doctors, and entertainers to enter Canada to work without regard to the availability of workers domestically. For other workers who would be similar to those under the H-2 category, the Canadian employer must apply to the local Canadian Manpower Center for a clearance before a foreign worker may be brought in. The Manpower Center must determine that there are no unemployed Canadian workers with similar skills available locally to perform the job before a Manpower Clearance is issued. The Manpower Clearance is analogous to our Labor Certification.

We do not have detailed knowledge of the specific example raised since it was not brought to our attention earlier so as to give us a full opportunity to develop the situation and respond thereto. Presumably if Canadian construction workers were brought to work in New York it was because the Regional Manpower Office of the U.S. Department of Labor determined that there was a shortage of American workers at that time. Conversely, if American workers were denied permission to work in Canada, it was because the Canadian Manpower Center determined that there were sufficient Canadian Laborers available to perform the work at that time.

The Department of State is extremely concerned that American citizens and products are not discriminated against by other governments. We actively seek to protect United States interests against unfair or discriminatory treatment, and to insure that reciprocity is observed where it is called for even though it may not be specifically called for by law. It would be helpful however that instances such as that described by Mr. Cook be brought to the attention of the Department so that appropriate action can be taken, keeping in mind that the control of entry of foreigners remains the sovereign right of each country.

Mr. Cook. And keep us posted on progress in that area.
Thank you, Mr. Chairman.

Mr. EILBERG. I have a few more questions before we adjourn. How many times has the Department of State approached foreign diplomatic missions here when A-2 or A-3 aliens assigned to that mission have been found to be working illegally?

Mr. WALENTYNOWICZ. Could I just confer

Mr. EILBERG. Would you please name this gentleman?

Mr. WALENTYNOWICZ. I just consulted with Mr. Davis from the Office of Protocol, and Mr. Chairman, with your permission, I would ask him to respond to that question. Before he does, however, I would like to make a preliminary response.

Under the law, there are actually no statutory restrictions upon prohibiting an "A" visa holder to work. We have, by departmental regulation, restricted all "A's" from work except in certain categories. I believe it is cultural

Mr. DAVIS. Education and health.

Mr. WALENTYNOWICZ. And in that respect, when all of these people come to the United States, we advise them of these restrictions. Of course, then we have the problem of how do we monitor these restrictions, and Mr. Davis will amplify on that.

Mr. EILBERG. Go ahead.

Mr. DAVIS. Good morning, Mr. Chairman.

Mr. EILBERG. Good morning.

Mr. DAVIS. I would like to say that we have no means of monitoring this. The only way which we could approach this problem would be if it were brought to our attention. Such cases, Mr. Chairman, are

occasionally, but I would say infrequently, brought to the attention of the Office of Protocol.

Mr. EILBERG. Well, Mr. Walentynowicz, in his principal statement, refers to "many cases where A-2's and A-3's were working illegally" such as operating banks and so on. Do any of these cases come to your attention?

Mr. DAVIS. I was going to say they are not brought to the Office of Protocol's attention. If they are, we would report them to the regional office with the expectation that this would be reported to INS, because INS is in charge of—

Mr. EILBERG. The answer is really not responsive, and I think you'd better get some further advice.

Mr. WALENTYNOWICZ. Let me put it this way, Mr. Chairman. The difficulty we face is this: Under the Immigration and Nationality Act, if any of these people violate the terms of their status, and they have an "A" visa, and because of the provisions of the act they are not subject to deportation. Is that accurate, Mr. Scully?

Mr. SCULLY. So long as they maintain nonimmigrant status.

Mr. WALENTYNOWICZ. So, the INS is not in a position to deport them, because

Mr. EILBERG. Well, you are the Administrator of the office. What do you do when it comes to your attention that an A-2 or an A-3 is working illegally?

Mr. WALENTYNOWICZ. When it comes to my attention, we have the Office of Protocol tell the Embassy to cease and desist.

Mr. EILBERG. But the Office of Protocol says they don't do that. They report it to you. Isn't that what you said?

Mr. DAVIS. I must say I have seen very few cases. I can recall of one classic case, but I am not aware of this being any kind of regular occurrence. Maybe some of these pertain to A-2's who are not in any kind of status that imparts immunity. Because A-2 covers, Mr. Chairman, in addition, miscellaneous. So, it would not be a protocol matter. So, it may be we are talking about some cases that would not necessarily be brought to the attention of the Protocol Office.

Mr. EILBERG. On top of page 36, it reads: "Some aliens have taken advantage of this status to remain illegally in the United States once their official mission has been accomplished." And then it states: "Some countries have attempted to staff what would appear to be commercial enterprise, such as banks, travel agencies, and even some gift shops, with persons documented as A-2."

Mr. WALENTYNOWICZ. I would be more than happy to amplify those comments. Mr. Shepherd perhaps can add detail.

Mr. SHEPHERD. I think there is some degree of confusion about the two classifications involved. The reference on page 36 would be to those aliens documented with A-2 for the purpose of operating, say, a national bank. A nationak bank is operated by a foreign country and they establish a branch in the United States. They would be issued an A-2 visa, but they would not be notified technically to the Office of Protocol, since they are not part of the operating diplomatic mission in the United States.

Mr. EILBERG. I don't understand that.

Mr. SHEPHERD. They have to be accredited, but they are not notified to the Office of Protocol as far as being members of the diplomatic mission as such.