403(b) - may an employee with a G4 visa participate?

[Francis]

May an employee who is in the USA on a G-4 visa participate in an employer's ERISA 403(b) plan without jeopardizing his G-4 visa status or his spouse's G-4 visa status? The employee's spouse is an employee of an international organization and both are in the USA on G-4 visas?

[Peter Gulia]

The key is that each G-4 visa holder must work only as permitted under the terms of his or her G-4 visa and any further authority required.

A G-4 visa holder who is an employee of an international organization that is also an IRS-recognized § 501©(3) charitable organization may participate under its § 403(b) plan to the extent that a similarly situated employee (who isn’t the international organization’s official or representative) could.

A person who (1) is a G-4 visa holder as the official’s or representative’s spouse, (2) the State department approved for employment (usually in a Form I-566 forwarded to the United States Citizenship and Immigration Services division of the Homeland Security department), and (3) within that approval is an employee of an IRS-recognized § 501©(3) charitable organization may participate under a § 403(b) plan to the extent that a similarly situated employee (who isn’t a G-4 visa holder) could.

However, following U.S. tax law, other nations’ tax laws, and treaties, such a person’s tax treatment might be quite different from that of a person who has no relation to any nation other than the United States.

For some (not all) provisions of the International Organizations Immunities Act [1945], see 22 U.S.C. §§ 288 to 288k.

For background on the G-4 visa, see 22 U.S.C. § 288d(a) and 22 C.F.R. §§ 41.12, 41.21, 41.24.

For background on the income tax treatments of contributions to, investments under, and distributions from retirement plans and contracts, see Chapter 19 (International Tax Treatment) in 403(b) Answer Book. But use this only as a starting point for your own research. Further, the chapter’s explanation of a particular treaty might not be up-to-date because the publisher, editors, and I resolved to simplify this part of the book in its next edition.