Movement of natural person and the United States: Probability of the mode 4 offer improvement by the United States

Journal of World Trade

Volumn 42, Issue 4, 2008, Pages 653-670

  Matsuzawa, Kotaro ^a  

^a NIHON UNIVERSITY   (Japan)

Author keywords

[No Author keywords available]

Indexed keywords

INTERNATIONAL TRADE; NEGOTIATION PROCESS; PROBABILITY; TERMS OF TRADE; TRADE POLICY; WORLD TRADE ORGANIZATION;

NORTH AMERICA; UNITED STATES;

EID: 51049093846     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (56)

1. Lecturer at Nihon University. E-mail: .
2. In the report Elements Required for the Completion of the Services Negotiations (TN/S/33), issued 26 May 2008, available at: , it is stated that "Members reiterate that the next offers shall provide market access in sectors and modes of supply of export interest to developing countries, such as Modes 1 and 4, as indicated in bilateral and plurilateral requests, in accordance with Article IV of the GATS."
3. Argentina, Brazil, Chile, China, Colombia, Egypt, India, Mexico, Pakistan, Peru, and Thailand submitted the pluri-request. Among them, India might be the state that has the strongest interest on Mode 4. See Washington Trade Daily, 1 February 2008, 29 February 2008, 17 March 2008, and 28 March 2008.
4. The text of the request is available at: , and .
5. Washington Trade Daily, 5 February 2008.
6. Washington Trade Daily, 28 March 2008, and 12 May 2008.
7. Washington Trade Daily, 14 May 2007.
8. Washington Trade Daily, 25 September 2007.
9. Guidelines and Procedures for the Negotiations on Trade in Services, S/L/93 (29 March 2001).
10. Annex on Movement of Natural Persons Supplying Services under the Agreement, para. 2.
11. The text of the revised offer of the United States is available at: .
12. Cf OECD, International Migration Outlook (Paris: OECD, 2007).
13. A professional is defined as a person who is engaged in a specialty occupation requiring (a) theoretical and practical application of a body of specialized knowledge; and (b) attainment of a post-secondary degree in the specialty requiring four or more years of study (or the equivalent of such a degree) as a minimum for entry into the occupation.
14. Australia: see ;
15. Bahrain: see ;
16. Oman: see .
17. An Act Making Emergency Supplemental Appropriations for Defense, the Global War on Terror, and Tsunami Relief, for the fiscal year ending September 30, 2005, and for other purposes. Pub. L. No. 109-13, 119 Star. 231, 321.
18. The text of this is available at: , and .
19. "An ENT can generally be characterized as a provision in national regulations, legislation or administrative guidelines imposing a test which has the effect of restricting the entry of service suppliers, based on an assessment of 'needs' in the domestic market." Assessing Barriers to Trade in Services, the Scheduling of Economic Needs Tests in the GATS: An Overview (TD/TC/WP (2000)11/FINAL, OECD), p. 4.
20. Precisely, new visa category H-1B1, is for "Professionals" stipulated in the FTAs with Singapore and Chile. H-1B1 is the visa that gives little more preferable conditions than the ordinal H-1B. See Immigration Issues in Trade Agreements, 8(CRS Report for Congress, 25 January 2007). The laws relating to such preferential treatment are: - United States-Chile Free Trade Agreement Implementation Act (Pub. L. 108-77). - United States-Singapore Free Trade Agreement Implementation Act (Pub. L. 108-78)
21. 8 USC§1101(a)(15)(H)(i)(b).
22. 8 USC§1184(h)(i).
23. 8 USC§1101(a)(15)(H)(i)(b), 20 CFR?655.700(a)(3).
24. 8 USC§1184(g)(4).
25. David Weissbroudt et al., Immigration Law and Procedure (Thomson West, 2005), p. 160.
26. 20 CFR §655.700(a)(3).
27. Expressing the sense of the Senate regarding the temporary entry provisions in the Chile and Singapore Free Trade Agreements, S.Res.211, 108th Congress, 1st Session.
28. Sensenbrenner, Conyers push for Portman Commitment on Visas, Inside US Trade, 27 May 2005.
29. Although the resolution and the letter cites the Article I, section 8, clause 4 as a basis of Congressional power to regulate the immigration and there is a case which cited this clause as a basis of the power ( Nishimura Ekiu v United States (142 U.S 651 (1892)), the provision stipulates that the US Constitution entitles Congress the power to establish a "uniform rule of Naturalization" and, literally, it does not allocate the power regarding the admission or removal of non-citizen to Congress. On this point, cf. Dissenting Opinion of the Chief Justice Taney, in the Passenger Cases, 48 U.S. 283, 482(1849);
30. T.A. Aleinikoff et al., Immigration and Citizenship Process and Policy (Thomson West, 2008), p. 201;
31. Weissbroudt et al., as note 23 above, p. 53.
32. For example, the court supported power of Congress over immigration through the following clauses. - The Commerce Clause (Article 1, Section 8, Clause 3); Passenger Cases (48 U.S. 283 (1849)), Head Money Cases (112 U.S. 580 (1884)).
33. - The Naturalization Clause (Article 1, Section 8, Clause 4); Nishimura Ekiu v United States (142 U.S 651 (1892)).
34. - The War Power Clause (Article 1, Section 8, Clause 11); Fong Yue Ting v United States (149 U.S. 698 (1893)).
35. - The Migration Clause (Article 1, Section 9, Clause 1); Passenger Cases (48 U.S. 283 (1849)).
36. 130 U.S. 581(1889).
37. Weissbroudt et al., as note 23 above, at 57.
38. Richard A. Boswell, Essential of Immigration Law (AILA, 2006), p. 19.
39. 130 U.S. 581, 604 (1889).
40. Ibid., at 609.
41. 142 U.S. 651 (1892).
42. T.A. Aleinikoff, Semblances of Sovereignty (Harvard University Press, 2002), p. 153.
43. E-visa, which is provided for the treaty trader and investor, is issued to an applicant of a country which has a treaty of Friendship, Commerce, and Navigation (FCN) with the United States (9 FAM 41.51.N3) and there are not a small number of countries having such a treaty with the United States (9 FAM 41.51. Exhibit I).
44. James Madison, Federalist 42 (22 January 1788), 285-287.
45. Ex. See Washington Trade Daily, 25 September 2007.
46. It is also reported that India stated it would be difficult for it to show flexibility without the signal of the liberalization concerning short-term movement of services providers (Washington Trade Daily, 1 October 2007)
47. and also it requested the United States to offer more on the crucially important "Mode 4" delivery in the services negotiations, i.e., the short-term movement of service providers (Washington Trade Daily, 6 November 2007). Moreover, it is reported that there is a "language proposed by India and other developing countries requiring that members commit to providing market access in areas of interest to developing countries, such as so-called Mode 4 services, which involve the movement of people across border for work" in the status report on services issued by the Chairman on 12 February 2008.
48. Inside US Trade, 15 February 2008. The report is available at: . The statement that emphasizes the importance to open its market by the United States was also made by a business body.
49. See The statement made by a senior representative of the Confederation of Indian Industry, Inside US Trade, 29 February 2008.
50. On this point, the Deputy US Trade Representative said it would be easier for other countries to agree to market access openings in the Doha Negotiations if the United States does the same. See Inside US Trade, 12 October 2007.
51. It is also reported that the US business community has maintained that the United States needs to be more flexible, in its Mode 4 offers, arguing that failure to do so stalls the negotiations and prevents the United States from obtaining useful commitments from developing countries. Trade in Services: The Doha Development Agenda Negotiations and US Goals (CRS Report for Congress, 12 September 2005), p. 19.
52. While there are some opposing opinions, it is reported that the proponents ofexpanding H-1B admissions argue that H-1B workers are essential if the United States is to remain globally competitive and that employers should be free to hire the best people for the jobs. Immigration: Legislative Issues on Nonimmigrant Professional Specialty (H-1B) Workers (CRS Report for Congress, 23 May 2007), p. 12.
53. In the paper issued by the WTO Secretariat, Presence of Natural Persons -Background Note by the Secretariat (S/C/W/75, 8 December 1998)., it is reported that, "In the 1960s, more than half the Africans who went to the United States to study chemistry and physics never sought employment in their home countries. This may also happen in more economically advanced countries: in 1988, for instance, it was estimated that around 1,350 Koreans with PhD were working as scientists in the United States."
54. The European Commission adopts a legislative proposal for creating Blue Card, which contains measures to limit active recruitments by Member States in developing countries and to facilitate circular migration for avoiding negative brain drain effects. See news release, 23 October 2007 (IP/07/1575).
55. Regarding this point, it is reported that a group of developing countries made a statement that they are not seeking an entry into the labor markets of the requested Member nor any commitments to relax their migration regimes. Washington Trade Daily, 15 November 2007.
56. It was reported that US trade officials continue to talk over this matter with members of Congress even though they explained that the discussions at the WTO do not affect US immigration law. Washington Trade Daily, 3 October 2007. It is also reported that the Untied States has said it can work with Congress on the issue, even though it provided no specifics on how it could improve its Mode 4 offer. Washington Trade Daily, 2 May 2008.