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Volume 42 | Number 1 Fall 2006

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Conflicts Between United States Immigration Law and the General Agreement on Trade in Services: Most-Favored-Nation Obligation

by William Thomas Worster

Summary

  1. Introduction
    1. Overview of the General Agreement on Trade in Services
    2. Overview of United States Immigration Law
  2. The General Agreement on Trade in Services
    1. Measures Covered by GATS
    2. Affecting Trade in Services
    3. Services Covered by GATS
    4. Modes of Supply
    5. GATS Application to Immigration Law
    6. Exceptions to GATS Coverage
      1. Exceptions for Certain Persons
      2. Exceptions for Border Control Regulations
      3. Exception for Labor Markets Integration Agreements
      4. Exception for Economic Integration Agreements
      5. General Exemptions and Security Exemptions
    7. Obligation to Provide Most-Favored-Nation Treatment
      1. Tests for Violations of MFN
      2. Treatment of Inherent Competitive Disadvantages
      3. Exclusion from MFN for Visas
        1. Distinction Between Visa and Status
        2. Definition of Visa
        3. Visa Application Procedure and Adjudication
      4. Exclusions from MFN for Country-Specific Scheduled MFN Exemptions
      5. Country-Specific MFN Exemption Scheduled by the United States
  3. Analysis of United States Immigration Measures Against GATS MFN
    1. H-1B, Worker in a Specialty Occupation
      1. Specialty Occupation
      2. Alien’s Qualifications
      3. Licensure
      4. Prevailing Wage
    2. H-1B1, Professionals under the Chile/Singapore Free Trade Agreements
      1. H-1B1 Requirements
      2. Labor Markets or Economic Integration Agreements Exemptions
        1. Labor Markets Integration Agreement
        2. Economic Integration Agreement
      3. Scheduled MFN Exemption
    3. E-1 or E-2, Treaty Trader or Investor
      1. Qualifying Treaty
      2. Scheduled MFN Exemption
        1. Applicability of the Exemption
        2. Interpreting Discrepancies Between Immigration Law and the Exemption
        3. Grant, Extension, and Change of Status
        4. Expiration and Justification of the Exemption
      3. Employer and Employer’s Activities
        1. Trade Under the Exemption
        2. Investment Under the Exemption
      4. Executive, Supervisory, or Essential Skills Position
      5. Alien’s Qualifications
      6. Labor Markets or Economic Integration Agreements Exemptions
    4. E-3, Australian National Worker in a Profession
      1. E-3 Requirements
      2. Labor Markets and Economic Integration Agreements Exemptions
      3. Scheduled MFN Exemption
    5. TN, North American Free Trade Agreement
      1. Professional Position
      2. Alien’s Qualifications
      3. Labor Markets and Economic Integration Agreements Exemptions
      4. Scheduled MFN Exemption
    6. L-1, Intra-Company Transferee
      1. Employer
      2. Executive, Managerial, or Specialized Knowledge Position
      3. “Blanket” L Program
    7. B-1, Business Visitors, and Admission Under the Visa Waiver Program
      1. Parties
      2. Alien’s Activities
      3. Visa Waiver Program
  4. Conclusion

Footnotes

For complete footnote citations, download the PDF.

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