SUBCHAPTER III—APPOINTMENTS

§3941. General provisions

(a) Citizenship requirement

Only citizens of the United States may be appointed to the Service, other than for service abroad as a consular agent or as a foreign national employee.

(b) Examinations

(1) The Secretary shall prescribe, as appropriate, written, oral, physical, foreign language, and other examinations for appointment to the Service (other than as a chief of mission or ambassador at large).

(2) The Secretary shall ensure that the Board of Examiners for the Foreign Service annually offers the oral assessment examinations described in paragraph (1) in cities, chosen on a rotating basis, located in at least three different time zones across the United States.

(c) Veteran or disabled veteran

The fact that an applicant for appointment as a Foreign Service officer candidate is a veteran or disabled veteran shall be considered an affirmative factor in making such appointments. As used in this subsection, the term "veteran or disabled veteran" means an individual who is a preference eligible under subparagraph (A), (B), or (C) of section 2108(3) of title 5.

(d) Career and noncareer appointments

(1) Members of the Service serving under career appointments are career members of the Service. Members of the Service serving under limited appointments are either career candidates or noncareer members of the Service.

(2) Chiefs of mission, ambassadors at large, and ministers serve at the pleasure of the President.

(3) An appointment as a Foreign Service officer is a career appointment. Foreign Service employees serving as career candidates or career members of the Service shall not represent to the income tax authorities of the District of Columbia or any other State or locality that they are exempt from income taxation on the basis of holding a Presidential appointment subject to Senate confirmation or that they are exempt on the basis of serving in an appointment whose tenure is at the pleasure of the President.

(Pub. L. 96–465, title I, §301, Oct. 17, 1980, 94 Stat. 2083; Pub. L. 100–204, title I, §179(a), Dec. 22, 1987, 101 Stat. 1362; Pub. L. 117–81, div. E, title LIV, §5406(b), Dec. 27, 2021, 135 Stat. 2374.)

Editorial Notes

Amendments

2021—Subsec. (b). Pub. L. 117–81 designated existing provisions as par. (1) and added par. (2).

1987—Subsec. (d)(3). Pub. L. 100–204 inserted sentence at end relating to exemption from income taxation.

Statutory Notes and Related Subsidiaries

Effective Date of 1987 Amendment

Pub. L. 100–204, title I, §179(b), Dec. 22, 1987, 101 Stat. 1363, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to tax years beginning after December 31, 1987."

Study of Foreign Service Examination

Pub. L. 101–246, title I, §153(g), Feb. 16, 1990, 104 Stat. 44, required the Secretary of State to enter into a contract with a private organization for a comprehensive review and evaluation of the Foreign Service examination related to cultural, racial, ethnic, and sexual bias issues, and no later than 18 months after Feb. 16, 1990, submit a report to Congress containing the findings of the review and evaluation, together with the comments of the Secretary and measures which the Secretary has initiated to respond to any adverse findings of such review.

§3942. Appointments by the President

(a)(1) The President may, by and with the advice and consent of the Senate, appoint an individual as a chief of mission, as an ambassador at large, as an ambassador, as a minister, as a career member of the Senior Foreign Service, or as a Foreign Service officer.

(2)(A) The President may, by and with the advice and consent of the Senate, confer the personal rank of career ambassador upon a career member of the Senior Foreign Service in recognition of especially distinguished service over a sustained period.

(B)(i) Subject to the requirement of clause (ii), the President may confer the personal rank of ambassador or minister on an individual in connection with a special mission for the President of a temporary nature not exceeding six months in duration.

(ii) The President may confer such personal rank only if, prior to such conferral, he transmits to the Committee on Foreign Relations of the Senate a written report setting forth—

(I) the necessity for conferring such rank,

(II) the dates during which such rank will be held,

(III) the justification for not submitting the proposed conferral of personal rank to the Senate as a nomination for advice and consent to appointment, and

(IV) all relevant information concerning any potential conflict of interest which the proposed recipient of such personal rank may have with regard to the special mission.

Such report shall be transmitted not less than 30 days prior to conferral of the personal rank of ambassador or minister except in cases where the President certifies in his report that urgent circumstances require the immediate conferral of such rank.

(C) An individual upon whom a personal rank is conferred under subparagraph (A) or (B) shall not receive any additional compensation solely by virtue of such personal rank.

(3) Except as provided in paragraph (2)(B) of this subsection or in clause 3, section 2, article II of the Constitution (relating to recess appointments), an individual may not be designated as ambassador or minister, or be designated to serve in any position with the title of ambassador or minister, without the advice and consent of the Senate.

(b) If a member of the Service is appointed to any position in the executive branch by the President, by and with the advice and consent of the Senate, or by the President alone, the period of service in that position by the member shall be regarded as an assignment under subchapter V and the member shall not, by virtue of the acceptance of such assignment, lose his or her status as a member of the Service. A member of the Senior Foreign Service who accepts such an assignment may elect to continue to receive the salary of his or her salary class, to remain eligible for performance pay under subchapter IV, and to receive the leave to which such member is entitled under subchapter I of chapter 63, title 5, as a member of the Senior Foreign Service, in lieu of receiving the salary and leave (if any) of the position to which the member is appointed by the President.

(Pub. L. 96–465, title I, §302, Oct. 17, 1980, 94 Stat. 2084; Pub. L. 100–204, title I, §177(b), Dec. 22, 1987, 101 Stat. 1362; Pub. L. 102–138, title I, §§141, 142(a), Oct. 28, 1991, 105 Stat. 667.)

Editorial Notes

Amendments

1991—Subsec. (a)(1). Pub. L. 102–138, §141, inserted "as an ambassador," after "ambassador at large,".

Subsec. (b). Pub. L. 102–138, §142(a), substituted "may elect to continue to receive the salary of his or her salary class, to remain eligible for performance pay under subchapter IV, and to receive the leave to which such member is entitled under subchapter I of chapter 63, title 5, as a member of the Senior Foreign Service, in lieu of receiving the salary and leave (if any) of the position to which the member is appointed by the President" for "shall receive the salary and leave (if any) of the position to which the member is appointed by the President and shall not be eligible for performance pay under subchapter IV of this chapter".

1987—Subsec. (b). Pub. L. 100–204 substituted "shall receive the salary and leave (if any) of the position to which the member is appointed by the President and shall not be eligible for performance pay under subchapter IV of this chapter." for "may elect to continue to receive the salary of his or her salary class, to remain eligible for performance pay under subchapter IV of this chapter, and to receive the leave to which such member is entitled under subchapter I of chapter 63 of title 5 as a member of the Senior Foreign Service, in lieu of receiving the salary and leave (if any) of the position to which the member is appointed by the President."

Statutory Notes and Related Subsidiaries

Effective Date of 1987 Amendment

Pub. L. 100–204, title I, §177(c), Dec. 22, 1987, 101 Stat. 1362, provided that: "The amendments made by subsections (a) and (b) [amending this section and section 3961 of this title] shall not apply to the salary of any individual serving under a Presidential appointment under section 302 of the Foreign Service Act of 1980 [this section] immediately before the date of the enactment of this Act [Dec. 22, 1987] during the period such individual continues to serve in such position."

Executive Documents

Delegation of Functions

Functions of President under subsec. (a)(1) delegated to Secretary of State, see section 1 of Ex. Ord. No. 12293, Feb. 23, 1981, 46 F.R. 13969, set out as a note under section 3901 of this title.

Executive Order No. 10062

Ex. Ord. No. 10062, June 6, 1949, 14 F.R. 2695, as amended by act Aug. 10, 1949, ch. 412, §12(a), 63 Stat. 591; Ex. Ord. No. 10144, July 21, 1950, 15 F.R. 4705, eff. June 6, 1949, which established the position of United States High Commissioner for Germany, was revoked by Ex. Ord. No. 10608, May 5, 1955, 20 F.R. 3093, set out below.

Ex. Ord. No. 10608. United States Authority and Functions in Germany

Ex. Ord. No. 10608, May 5, 1955, 20 F.R. 3093, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided:

By virtue of the authority vested in me by the Constitution and the statutes, including the Foreign Service Act of 1980 (94 Stat. 2071), as amended [this chapter], and as President of the United States and Commander in Chief of the armed forces of the United States, it is ordered as follows:

1. Executive Order No. 10062 of June 6, 1949, and Executive Order No. 10144 of July 21, 1950, amending that order, are hereby revoked, and the position of United States High Commissioner for Germany, established by that order, is hereby abolished.

2. The Chief of the United States Diplomatic Mission to the Federal Republic of Germany, hereinafter referred to as the Chief of Mission, shall have supreme authority, except as otherwise provided herein, with respect to all responsibilities, duties, and governmental functions of the United States in all Germany. The Chief of Mission shall exercise his authority under the supervision of the Secretary of State and subject to ultimate direction by the President.

3. The United States Military Commander having area responsibility in Germany, hereinafter referred to as the Commander, shall have authority with respect to all military responsibilities, duties, and functions of the United States in all Germany, including the command, security, and stationing of United States forces in Germany, the assertion and exercise of their rights and discharge of their obligations therein, and emergency measures which he may consider essential for their protection or the accomplishment of his mission. The Commander may delegate the authority conferred upon him. If action by the Commander or any representative of the Commander, pursuant to the authority herein conferred, affects the foreign policy of the United States or involves relations or negotiations with non-military German authorities, such action shall be taken only after consultation with and agreement by the Chief of Mission or pursuant to procedures previously agreed to between the Chief of Mission and the Commander or his representative. Either the Chief of Mission or the Commander may raise with the other any question which he believes requires such consultation. If agreement is not reached between them, any differences may be referred to the Department of State and the Department of Defense for resolution.

4. The Chief of Mission and the Commander or his designated representatives shall, to the fullest extent consistent with their respective missions, render assistance and support to each other in carrying out the agreements and policies of the United States.

5. With regard to the custody, care, and execution of sentences and disposition (including pardon, clemency, parole, or release) of war criminals confined or hereafter to be confined in Germany as a result of conviction by military tribunals (A) the Chief of Mission shall share the four-power responsibility in the case of persons convicted by the International Military Tribunal, (B) the Chief of Mission shall exercise responsibility in the case of persons convicted by military tribunals established by the United States Military Governor pursuant to Control Council Law No. 10, and (C) the Commander shall exercise responsibility in the case of persons convicted by other military tribunals established by United States Military Commanders in Germany and elsewhere. The Commanders shall, on request of the Chief of Mission, take necessary measures for carrying into execution any sentences adjudged against such persons in category (B) as to whom the Chief of Mission has responsibility and control. Transfer of custody of persons in categories (B) and (C) to the Federal Republic of Germany as provided in the Convention on the Settlement of Matters Arising Out of the War and Occupation shall terminate the responsibility of the Chief of Mission and the Commander with respect to such persons to the extent that the responsibility of the United States for them is thereupon terminated pursuant to the provisions of the said Convention.

6. If major differences arise over matters affecting the United States Forces in Germany, such differences may be referred to the Department of State and the Department of Defense for resolution.

7. This order shall become effective on the date that the Convention on Relations between the Three Powers and the Federal Republic of Germany and related Conventions, as amended, come into force.

Executive Order No. 11970

Ex. Ord. No. 11970, Feb. 5, 1977, 42 F.R. 7919, establishing the Presidential Advisory Board on Ambassadorial Appointments, was revoked by Ex. Ord. No. 12299, Mar. 17, 1981, 46 F.R. 17751.

Term of the Presidential Advisory Board on Ambassadorial Appointments extended until Dec. 31, 1980, see Ex. Ord. No. 12110, Dec. 28, 1978, 44 F.R. 1069, formerly set out as a note under section 14 of the Appendix to Title 5, Government Organization and Employees.

§3943. Appointments by the Secretary

The Secretary may appoint the members of the Service (other than the members of the Service who are in the personnel categories specified in section 3942(a) of this title) in accordance with this chapter and such regulations as the Secretary may prescribe.

(Pub. L. 96–465, title I, §303, Oct. 17, 1980, 94 Stat. 2085.)

Editorial Notes

References in Text

This chapter, referred to in text, was in the original "this Act", meaning Pub. L. 96–465, Oct. 17, 1980, 94 Stat. 2071, known as the Foreign Service Act of 1980, which is classified principally to this chapter (§3901 et seq.). For complete classification of this Act to the Code, see Short Title note set out under section 3901 of this title and Tables.

Statutory Notes and Related Subsidiaries

Lateral Entry Into the Foreign Service

Pub. L. 114–323, title IV, §404, Dec. 16, 2016, 130 Stat. 1928, as amended by Pub. L. 118–31, div. F, title LXII, §6204(a), Dec. 22, 2023, 137 Stat. 972, provided that:

"(a) Sense of Congress.—It is the sense of Congress that the Foreign Service [of the United States] should permit mid-career entry into the Foreign Service for qualified individuals who are willing to bring their outstanding talents and experiences to the work of the Foreign Service.

"(b) Pilot Program.—Not later than 180 days after the date of the enactment of this Act [Dec. 16, 2016], the Secretary [of State] shall establish a 5-year pilot program for lateral entry into the Foreign Service that—

"(1) targets mid-career individuals from the civil service and private sector who have skills and experience that would be extremely valuable to the Foreign Service;

"(2) is in full comportment with current Foreign Service intake procedures, including the requirement to pass the Foreign Service exam;

"(3) offers participants in such pilot program placement in the Foreign Service at a grade level higher than FS–4 if such placement is warranted by the education and qualifying experience of such individuals;

"(4) requires only one directed assignment in a position appropriate to such pilot program participant's grade level;

"(5) includes, as part of the required initial training, a class or module that specifically prepares participants in such pilot program for life in the Foreign Service, including conveying to such participants essential elements of the practical knowledge that is normally acquired during a Foreign Service officer's initial assignments[;]

"(6) includes an annual assessment of the progress of such pilot program by a review board consisting of Department [of State] officials with appropriate expertise, including employees of the Foreign Service, in order to evaluate such pilot program's success;

"(7) does not include the use of Foreign Service-Limited or other noncareer Foreign Service hiring authorities; and

"(8) includes not fewer than 30 participants for each year of the pilot program.

"(c) Annual Reporting.—Not later than 1 year after the date of the enactment of this Act and annually thereafter for the duration of the pilot program described in subsection (b), the Secretary shall submit to the appropriate congressional committees [Committee on Foreign Relations of the Senate and Committee on Foreign Affairs of the House of Representatives] a report that describes the following:

"(1) The cumulative number of accepted and unaccepted applicants to such pilot program.

"(2) The cumulative number of pilot program participants placed into each Foreign Service cone.

"(3) The grade level at which each pilot program participant entered the Foreign Service.

"(4) Information about the first assignment to which each pilot program participant was directed.

"(5) The structure and operation of such pilot program, including—

"(A) the operation of such pilot program to date; and

"(B) any observations and lessons learned about such pilot program that the Secretary considers relevant.

"(d) Longitudinal Data.—The Secretary shall—

"(1) collect and maintain data on the career progression of each pilot program participant for the length of each participant's Foreign Service career; and

"(2) make the data described in paragraph (1) available to the appropriate congressional committees upon request.

"(e) Certification.—If the Secretary does not commence the lateral entry program within 180 days after the date of the enactment of this subsection [Dec. 22, 2023], the Secretary shall submit a report to the appropriate congressional committees—

"(1) certifying that progress is being made on implementation of the pilot program and describing such progress, including the date on which applicants will be able to apply;

"(2) estimating the date by which the pilot program will be fully implemented; [and]

"(3) outlining how the Department will use the Lateral Entry Program to fill needed skill sets in key areas such as cyberspace, emerging technologies, economic statecraft, multilateral diplomacy, and data and other sciences."

Prohibition on Certain Employment at United States Diplomatic and Consular Missions in Communist Countries

Pub. L. 100–204, title I, §157, Dec. 22, 1987, 101 Stat. 1354, provided that:

"(a) Prohibition.—After September 30, 1990, no national of a Communist country may be employed as a foreign national employee in any area of a United States diplomatic or consular facility in any Communist country where classified materials are maintained.

"(b) Definition.—As used in this section, the term 'Communist country' means a country listed in section 620(f) of the Foreign Assistance Act of 1961 [22 U.S.C. 2370(f)].

"(c) Additional Funds for Hiring United States Citizens.—The Congress expresses its willingness to provide additional funds to the Department of State for the expenses of employing United States nationals to replace the individuals dismissed by reason of subsection (a).

"(d) Report and Request for Funds.—As a part of the Department of State's authorization request for fiscal years 1990 and 1991, the Secretary of State, in consultation with the heads of all relevant agencies, shall submit—

"(1) a report, which shall include—

"(A) a feasibility study of the implementation of this section; and

"(B) an analysis of the impact of the implementation of this section on the budget of the Department of State; and

"(2) a request for funds necessary for the implementation of this section pursuant to the findings and conclusions specified in the report under paragraph (1).

"(e) Waiver.—The President may waive this section—

"(1) if funds are not specifically authorized and appropriated to carry out this section; or

"(2) the President determines that it is in the national security interest of the United States to continue to employ foreign service nationals.

The President shall notify the appropriate committees of Congress each time he makes the waiver conferred on him by this section."

Soviet Employees at United States Diplomatic and Consular Missions in the Soviet Union

Pub. L. 99–93, title I, §136, Aug. 16, 1985, 99 Stat. 421, provided that:

"(a) Limitation.—To the maximum extent practicable, citizens of the Soviet Union shall not be employed as foreign national employees at United States diplomatic or consular missions in the Soviet Union after September 30, 1986.

"(b) Report.—Should the President determine that the implementation of subsection (a) poses undue practical or administrative difficulties, he is requested to submit a report to the Congress describing the number and type of Soviet foreign national employees he wishes to retain at or in proximity to United States diplomatic and consular posts in the Soviet Union, the anticipated duration of their continued employment, the reasons for their continued employment, and the risks associated with the retention of these employees."

Executive Documents

Employment of Soviet Nationals at U.S. Diplomatic and Consular Missions in Soviet Union

Determination of President of the United States, No. 92–4, Oct. 24, 1991, 56 F.R. 56567, provided:

Memorandum for the Secretary of State

By the authority vested in me by the Constitution and laws of the United States, including section 301 of title 3 of the United States Code and section 136 of the Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (Public Law 99–93) ("the Act") [set out as a note above], I hereby determine that implementation of section 136(a) of the Act poses undue practical and administrative difficulties. Consistent with this determination, you are authorized to employ Soviet nationals in nonsensitive areas of the New Embassy Compound in Moscow under strict monitoring by cleared Americans. Further, I delegate to you the responsibility vested in me by section 136(b) of the Act to report to the Congress on circumstances relevant to this determination. Such responsibility may be redelegated within the Department of State.

You are authorized and directed to report this determination to the Congress and to publish it in the Federal Register.

George Bush.      

§3944. Chiefs of Mission

(a) Qualifications; preference for career members; political contributions as factor in appointment; demonstrated competency report

(1) An individual appointed or assigned to be a chief of mission should possess clearly demonstrated competence to perform the duties of a chief of mission, including, to the maximum extent practicable, a useful knowledge of the principal language or dialect of the country in which the individual is to serve, and knowledge and understanding of the history, the culture, the economic and political institutions, and the interests of that country and its people.

(2) Given the qualifications specified in paragraph (1), positions as chief of mission should normally be accorded to career members of the Service, though circumstances will warrant appointments from time to time of qualified individuals who are not career members of the Service.

(3) Contributions to political campaigns should not be a factor in the appointment of an individual as a chief of mission.

(4) The President shall provide the Committee on Foreign Relations of the Senate, with each nomination for an appointment as a chief of mission, a report on the demonstrated competence of that nominee to perform the duties of the position in which he or she is to serve.

(b) Furnishing of information by Secretary; political campaign contributions report

(1) In order to assist the President in selecting qualified candidates for appointment or assignment as chiefs of mission, the Secretary of State shall from time to time furnish the President with the names of career members of the Service who are qualified to serve as chiefs of mission, together with pertinent information about such members.

(2) The Secretary shall also furnish to the President, on an annual basis and to assist the President in selecting qualified candidates for appointments or assignments as chief of mission, the names of between 5 and 10 career civil servants serving at the Department of State or the United States Agency for International Development who are qualified to serve as chiefs of mission, together with pertinent information about such individuals.

(3) Each individual nominated by the President to be a chief of mission, ambassador at large, or minister shall, at the time of nomination, file with the Committee on Foreign Relations of the Senate and the Speaker of the House of Representatives a report of contributions made by such individual and by members of his or her immediate family during the period beginning on the first day of the fourth calendar year preceding the calendar year of the nomination and ending on the date of the nomination. The report shall be verified by the oath of the nominee, taken before any individual authorized to administer oaths. The chairman of the Committee on Foreign Relations of the Senate shall have each such report printed in the Congressional Record. As used in this paragraph, the term "contribution" has the same meaning given such term by section 30101(8) of title 52, and the term "immediate family" means the spouse of the nominee, and any child, parent, grandparent, brother, or sister of the nominee and the spouses of any of them.

(Pub. L. 96–465, title I, §304, Oct. 17, 1980, 94 Stat. 2085; Pub. L. 106–113, div. B, §1000(a)(7) [div. A, title II, §208(b)], Nov. 29, 1999, 113 Stat. 1536, 1501A-422; Pub. L. 118–31, div. F, title LXII, §6207, Dec. 22, 2023, 137 Stat. 974.)

Editorial Notes

Amendments

2023—Subsec. (b)(2), (3). Pub. L. 118–31 added par. (2) and redesignated former par. (2) as (3).

1999—Subsec. (c). Pub. L. 106–113 struck out subsec. (c) which read as follows: "Within 6 months after assuming the position, the chief of mission to a foreign country shall submit, to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, a report describing his or her own foreign language competence and the foreign language competence of the mission staff in the principal language or other dialect of that country."

Statutory Notes and Related Subsidiaries

Public Availability of Reports on Nominees To Be Chiefs of Mission

Pub. L. 114–323, title VII, §712, Dec. 16, 2016, 130 Stat. 1945, provided that: "Not later than 7 days after submitting the report required under section 304(a)(4) of the Foreign Service Act of 1980 (22 U.S.C. 3944(a)(4)) to the Committee on Foreign Relations of the Senate, the President shall make the report available to the public, including by posting the report on the website of the Department [of State] in a conspicuous manner and location."

§3945. Senior Foreign Service

(a) Salary class

Appointment to the Senior Foreign Service shall be to a salary class established under section 3962 of this title, and not to a position.

(b) Limited appointment

An individual may not be given a limited appointment in the Senior Foreign Service if that appointment would cause the number of members of the Senior Foreign Service serving under limited appointments to exceed 5 percent of the total number of members of the Senior Foreign Service, except that (1) members of the Senior Foreign Service assigned to the Peace Corps shall be excluded in the calculation and application of this limitation, and (2) members of the Senior Foreign Service serving under limited appointments with reemployment rights under section 3950 of this title as career appointees in the Senior Executive Service shall be considered to be career members of the Senior Foreign Service for purposes of this subsection.

(c) Appointments by Secretary of Commerce

(1) Appointments to the Senior Foreign Service by the Secretary of Commerce shall be excluded in the calculation and application of the limitation in subsection (b).

(2) Except as provided in paragraph (3), no more than one individual (other than an individual with reemployment rights under section 3950 of this title as a career appointee in the Senior Executive Service) may serve under a limited appointment in the Senior Foreign Service in the Department of Commerce at any time.

(3) The Secretary of Commerce may appoint an individual to a limited appointment in the Senior Foreign Service for a specific position abroad if—

(A) no career member of the Service who has the necessary qualifications is available to serve in the position; and

(B) the individual appointed has unique qualifications for the specific position.

(d) Recertification process

The Secretary shall by regulation establish a recertification process for members of the Senior Foreign Service that is equivalent to the recertification process for the Senior Executive Service under section 3393a of title 5.¹

(Pub. L. 96–465, title I, §305, Oct. 17, 1980, 94 Stat. 2086; Pub. L. 99–93, title I, §119(a), Aug. 16, 1985, 99 Stat. 412; Pub. L. 101–194, title V, §506(c)(1), Nov. 30, 1989, 103 Stat. 1759; Pub. L. 101–280, §6(d)(3), May 4, 1990, 104 Stat. 160.)

Editorial Notes

References in Text

Section 3393a of title 5, referred to in subsec. (d), was repealed by Pub. L. 107–296, title XIII, §1321(a)(1)(B), Nov. 25, 2002, 116 Stat. 2296.

Amendments

1990—Subsec. (d). Pub. L. 101–280 made technical correction to Pub. L. 101–194. See 1989 Amendment note below.

1989—Subsec. (d). Pub. L. 101–194, as amended by Pub. L. 101–280, added subsec. (d).

1985—Subsec. (c). Pub. L. 99–93 added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–194 effective Jan. 1, 1991, see section 506(d) of Pub. L. 101–194, set out as a note under section 3151 of Title 5, Government Organization and Employees.

Effective Date of 1985 Amendment

Pub. L. 99–93, title I, §119(c), Aug. 16, 1985, 99 Stat. 412, provided that: "The amendments made by subsections (a) and (b) [amending this section and provisions set out as a note under section 3901 of this title] shall take effect on October 1, 1985."

Effective Date

Section effective Feb. 15, 1981, with an exception that appointments to the Senior Foreign Service by the Secretary of Commerce shall be excluded in the calculation and limitation in subsec. (b) of this section until Oct. 1, 1985, which was repealed by section 119(b) of Pub. L. 99–93, see section 2403 of Pub. L. 96–465, set out as a note under section 3901 of this title.

Placement of Senior Foreign Service Personnel

Pub. L. 106–113, div. B, §1000(a)(7) [div. A, title III, §324], Nov. 29, 1999, 113 Stat. 1536, 1501A-437, required the Director General of the Foreign Service to submit a report on the first day of each fiscal quarter to the appropriate congressional committees containing the number of members of the Senior Foreign Service, the number of vacant positions designated for such members, and the number of those members not assigned to positions, prior to repeal by Pub. L. 107–228, div. A, title VI, §671(4), Sept. 30, 2002, 116 Stat. 1407.

¹ See References in Text note below.

§3946. Career appointments

(a) Trial period under limited appointment

Before receiving a career appointment in the Service, an individual shall first serve under a limited appointment as a career candidate for a trial period of service prescribed by the Secretary. During such trial period of service, the Secretary shall decide whether—

(1) to offer a career appointment to the candidate under section 3943 of this title, or

(2) to recommend to the President that the candidate be given a career appointment under section 3942 of this title.

(b) Decisions by Secretary

Decisions by the Secretary under subsection (a) shall be based upon the recommendations of boards, established by the Secretary and composed entirely or primarily of career members of the Service, which shall evaluate the fitness and aptitude of career candidates for the work of the Service.

(c) Foreign Service Grievance Board decisions

Nothing in this section shall be construed to limit the authority of the Secretary or the Foreign Service Grievance Board under section 4137 of this title.

(Pub. L. 96–465, title I, §306, Oct. 17, 1980, 94 Stat. 2086; Pub. L. 100–204, title I, §181(c), Dec. 22, 1987, 101 Stat. 1363.)

Editorial Notes

Amendments

1987—Subsec. (c). Pub. L. 100–204 added subsec. (c).

Statutory Notes and Related Subsidiaries

Effective Date of 1987 Amendment

Pub. L. 100–204, title I, §181(e), Dec. 22, 1987, 101 Stat. 1364, provided that: "The amendments made by this section [amending this section and sections 4010 and 4137 of this title] shall not apply with respect to any grievance in which the Board has issued a final decision pursuant to section 1107 of the Foreign Service Act of 1980 (22 U.S.C. 4137) before the date of enactment of this Act [Dec. 22, 1987]."

§3947. Entry levels for Foreign Service officer candidates

A career candidate for appointment as a Foreign Service officer may not be initially assigned under section 3964 of this title to a salary class higher than class 4 in the Foreign Service Schedule unless—

(1) the Secretary determines in an individual case that assignment to a higher salary class is warranted because of the qualifications (including foreign language competence) and experience of the candidate and the needs of the Service; or

(2) at the time such initial assignment is made, the candidate is serving under a career appointment in the Service and is receiving a salary at a rate equal to or higher than the minimum rate payable for class 4 in the Foreign Service Schedule.

(Pub. L. 96–465, title I, §307, Oct. 17, 1980, 94 Stat. 2086.)

§3948. Recall and reappointment of career members

(a) Retired career members

Whenever the Secretary determines that the needs of the Service so require, the Secretary may recall any retired career member of the Service for active duty in the same personnel category as that member was serving at the time of retirement. A retired career member may be recalled under this section to any appropriate salary class or rate, except that a retired career member of the Senior Foreign Service may not be recalled to a salary class higher than the one in which the member was serving at the time of retirement unless appointed to such higher class by the President, by and with the advice and consent of the Senate.

(b) Former career members

Former career members of the Service may be reappointed under section 3942(a)(1) or 3943 of this title, without regard to section 3946 of this title, in a salary class which is appropriate in light of the qualifications and experience of the individual being reappointed.

(Pub. L. 96–465, title I, §308, Oct. 17, 1980, 94 Stat. 2086.)

Statutory Notes and Related Subsidiaries

USAID Overseas Program

Pub. L. 118–47, div. F, title VII, §7065(a)–(d), Mar. 23, 2024, 138 Stat. 846, provided that:

"(a) Authority.—Up to $170,000,000 of the funds made available in title III of this Act [title III of div. F of Pub. L. 118–47, 138 Stat. 740] pursuant to or to carry out the provisions of part I of the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.], including funds appropriated under the heading 'Assistance for Europe, Eurasia and Central Asia', may be used by the United States Agency for International Development to hire and employ individuals in the United States and overseas on a limited appointment basis pursuant to the authority of sections 308 and 309 of the Foreign Service Act of 1980 (22 U.S.C. 3948 and 3949).

"(b) Restriction.—The authority to hire individuals contained in subsection (a) shall expire on September 30, 2025.

"(c) Program Account Charged.—The account charged for the cost of an individual hired and employed under the authority of this section shall be the account to which the responsibilities of such individual primarily relate: Provided, That funds made available to carry out this section may be transferred to, and merged with, funds appropriated by this Act in title II [title II of div. F of Pub. L. 118–47, 138 Stat. 739] under the heading 'Operating Expenses'.

"(d) Foreign Service Limited Extensions.—Individuals hired and employed by USAID [United States Agency for International Development], with funds made available in this Act [div. F of Pub. L. 118–47, 138 Stat. 729] or prior Acts making appropriations for the Department of State, foreign operations, and related programs, pursuant to the authority of section 309 of the Foreign Service Act of 1980 (22 U.S.C. 3949), may be extended for a period of up to 4 years notwithstanding the limitation set forth in such section."

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 117–328, div. K, title VII, §7065(a)–(d), Dec. 29, 2022, 136 Stat. 5086.

Pub. L. 117–103, div. K, title VII, §7065(a)–(d), Mar. 15, 2022, 136 Stat. 678.

Pub. L. 116–260, div. K, title VII, §7064(a)–(d), Dec. 27, 2020, 134 Stat. 1809.

Pub. L. 116–94, div. G, title VII, §7064(a)–(d), Dec. 20, 2019, 133 Stat. 2928, 2929, as amended by Pub. L. 116–136, div. B, title XI, §21004, Mar. 27, 2020, 134 Stat. 591.

Pub. L. 116–6, div. F, title VII, §7057(a)–(e), Feb. 15, 2019, 133 Stat. 371.

Pub. L. 115–141, div. K, title VII, §7057(a)–(e), Mar. 23, 2018, 132 Stat. 941.

Pub. L. 115–31, div. J, title VII, §7057(a)–(e), May 5, 2017, 131 Stat. 695.

Pub. L. 114–113, div. K, title VII, §7057(a)–(e), Dec. 18, 2015, 129 Stat. 2803, 2804.

Pub. L. 113–235, div. J, title VII, §7057(a)–(e), Dec. 16, 2014, 128 Stat. 2664, 2665.

Pub. L. 113–76, div. K, title VII, §7057(a)–(e), Jan. 17, 2014, 128 Stat. 549.

Pub. L. 112–74, div. I, title VII, §7057(a)–(e), Dec. 23, 2011, 125 Stat. 1244.

Pub. L. 111–117, div. F, title VII, §7059(a)–(g), Dec. 16, 2009, 123 Stat. 3380, 3381.

Pub. L. 111–8, div. H, title VII, §7059(a)–(g), Mar. 11, 2009, 123 Stat. 896.

Pub. L. 110–161, div. J, title VI, §676, Dec. 26, 2007, 121 Stat. 2357.

Pub. L. 109–102, title V, §577, Nov. 14, 2005, 119 Stat. 2231.

Pub. L. 108–447, div. D, title V, §588, Dec. 8, 2004, 118 Stat. 3034.

Pub. L. 108–199, div. D, title V, §525, Jan. 23, 2004, 118 Stat. 176, provided that: "Funds appropriated by this and subsequent appropriations Acts to carry out the provisions of part I of the Foreign Assistance Act of 1961 [22 U.S.C. 2151 et seq.], including funds appropriated under the heading 'Assistance for Eastern Europe and the Baltic States', may be made available to employ individuals overseas on a limited appointment basis pursuant to the authority of sections 308 and 309 of the Foreign Service Act of 1980 [22 U.S.C. 3948, 3949]: Provided, That in fiscal years 2004, 2005, and 2006 the authority of this section may be used to hire not more than 85 individuals in each such year."

§3949. Limited appointments

(a) A limited appointment in the Service, including an appointment of an individual who is an employee of an agency, may not exceed 5 years in duration and, except as provided in subsections (b) and (c), may not be extended or renewed. A limited appointment in the Service which is limited by its terms to a period of one year or less is a temporary appointment.

(b) A limited appointment may be extended for continued service—

(1) as a consular agent;

(2) in accordance with section 3951(a) of this title;

(3) as a career candidate, if—

(A) continued service is determined appropriate to remedy a matter that would be cognizable as a grievance under subchapter XI; or

(B) the individual is serving in the uniformed services (as defined in section 4303 of title 38) and the limited appointment expires in the course of such service;

(4) as a career employee in another Federal personnel system serving in a Foreign Service position on detail from another agency;

(5) as a foreign national employee;

(6) in exceptional circumstances if the Secretary determines the needs of the Service require the extension of—

(A) a limited noncareer appointment for a period not to exceed 1 year; or

(B) a limited appointment of a career candidate for the minimum time needed to resolve a grievance, claim, investigation, or complaint not otherwise provided for in this section.

(c)(1) Except as provided in paragraph (2) noncareer employees who have served for 5 consecutive years under a limited appointment under this section may be reappointed to a subsequent noncareer limited appointment if there is at least a 1-year break in service before such new appointment.

(2) The Secretary may waive the 1-year break requirement under paragraph (1) in cases of special need.

(Pub. L. 96–465, title I, §309, Oct. 17, 1980, 94 Stat. 2086; Pub. L. 100–204, title I, §176, Dec. 22, 1987, 101 Stat. 1361; Pub. L. 103–236, title I, §180(a)(1), Apr. 30, 1994, 108 Stat. 415; Pub. L. 103–415, §1(hh), Oct. 25, 1994, 108 Stat. 4303; Pub. L. 114–323, title IV, §409, Dec. 16, 2016, 130 Stat. 1930.)

Editorial Notes

Amendments

2016—Subsec. (a). Pub. L. 114–323, §409(1), substituted "subsections (b) and (c)" for "subsection (b)".

Subsec. (b)(3). Pub. L. 114–323, §409(2)(A), substituted "if—" for "if", inserted subpar. (A) designation before "continued service" and "or" after semicolon at end, and added subpar. (B).

Subsec. (b)(6). Pub. L. 114–323, §409(2)(B)–(D), added par. (6).

Subsec. (c). Pub. L. 114–323, §409(3), added subsec. (c).

1994—Subsec. (b)(5). Pub. L. 103–236, as amended by Pub. L. 103–415, added par. (5).

1987—Pub. L. 100–204 designated existing provisions as subsec. (a), substituted "subsection (b)" for "section 3951(a) of this title", and added subsec. (b).

§3950. Reemployment rights following limited appointment

Any employee of an agency who accepts a limited appointment in the Service with the consent of the head of the agency in which the employee is employed shall be entitled, upon the termination of such limited appointment, to be reemployed in accordance with section 3597 of title 5.

(Pub. L. 96–465, title I, §310, Oct. 17, 1980, 94 Stat. 2087.)

Executive Documents

Entitlement to Benefits for Services Performed Outside United States; Service Exceeding Thirty Months

Persons appointed, employed, or assigned after May 19, 1959, under former section 1787(c) of this title or section 2385(d) of this title for the purpose of performing functions under the Mutual Security Act of 1954 (see Short Title note set out under section 1754 of this title) and the Foreign Assistance Act of 1961 (section 2151 et seq. of this title) outside the United States shall not, unless otherwise agreed by the agency in which such benefits may be exercised, be entitled to the benefits provided for by this section in cases in which their service under the appointment, employment, or assignment exceeds thirty months. See Ex. Ord. No. 12163, §1–602(b), Sept. 29, 1979, 44 F.R. 56677, as amended, set out as a note under section 2381 of this title.

§3951. United States citizens hired abroad

(a) Appointment of family members

The Secretary, under section 3943 of this title, may appoint United States citizens, who are family members of government employees assigned abroad or are hired for service at their post of residence, for employment in positions customarily filled by Foreign Service officers, Foreign Service personnel, and foreign national employees.

(b) Family nexus as affirmative hiring factor

The fact that an applicant for employment in a position referred to in subsection (a) is a family member of a Government employee assigned abroad shall be considered an affirmative factor in employing such person.

(c) Compensation of family and non-family member employees

(1) Non-family members employed under this section for service at their post of residence shall be paid in accordance with local compensation plans established under section 3968 of this title.

(2) Family members employed under this section shall be paid in accordance with the Foreign Service Schedule or the salary rates established under section 3967 of this title.

(3) In exceptional circumstances, non-family members may be paid in accordance with the Foreign Service Schedule or the salary rates established under section 3967 of this title, if the Secretary determines that the national interest would be served by such payments.

(d) Non-family member employees ineligible for certain benefits

Nonfamily member United States citizens employed under this section shall not be eligible by reason of such employment for benefits under subchapter VIII of this chapter, or under chapters ¹ 83 or 84 of title 5.

(e) Employment standards

The Secretary shall hold a family member of a government employee described in subsection (a) seeking employment in a position described in that subsection to the same employment standards as those applicable to Foreign Service officers, Foreign Service personnel, or foreign national employees seeking the same or a substantially similar position.

(Pub. L. 96–465, title I, §311, Oct. 17, 1980, 94 Stat. 2087; Pub. L. 103–236, title I, §180(a)(2), Apr. 30, 1994, 108 Stat. 415; Pub. L. 103–415, §1(h)(1), Oct. 25, 1994, 108 Stat. 4300; Pub. L. 117–81, div. F, title LXII, §6205, Dec. 27, 2021, 135 Stat. 2391.)

Editorial Notes

Amendments

2021—Subsec. (e). Pub. L. 117–81 added subsec. (e).

1994—Pub. L. 103–415 substituted "United States citizens hired abroad" for "Employment of family members of Government employees" as section catchline and inserted "by reason of such employment" after "eligible" in subsec. (d).

Pub. L. 103–236 amended section generally. Prior to amendment, section read as follows:

"(a) The Secretary, when employing individuals abroad in positions to which career members of the Service are not customarily assigned (including, when continuity over a long term is not a significant consideration, vacant positions normally filled by foreign national employees), shall give equal consideration to employing available qualified family members of members of the Service or of other Government employees assigned abroad. Family members so employed shall serve under renewable limited appointments in the Service and may be paid either in accordance with the Foreign Service Schedule or a local compensation plan established under section 3968 of this title.

"(b) Employment of family members in accordance with this section may not be used to avoid fulfilling the need for full-time career positions."

¹ So in original. Probably should be "chapter".

§3952. Diplomatic and consular missions

(a) Recommendations by Secretary of State; appointment by President; vice consul; performance of official functions under commission

The Secretary of State may recommend to the President that a member of the Service who is a citizen of the United States be commissioned as a diplomatic or consular officer or both. The President may, by and with the advice and consent of the Senate, commission such member of the Service as a diplomatic or consular officer or both. The Secretary of State may commission as a vice consul a member of the Service who is a citizen of the United States. All official functions performed by a diplomatic or consular officer, including a vice consul, shall be performed under such a commission.

(b) Function of commissioned Service members

Members of the Service commissioned under this section may, in accordance with their commissions, perform any function which any category of diplomatic officer (other than a chief of mission) or consular officer is authorized by law to perform.

(c) Limits of consular districts

The Secretary of State shall define the limits of consular districts.

(Pub. L. 96–465, title I, §312, Oct. 17, 1980, 94 Stat. 2087.)