Volume 42 | Number 1 Fall 2006
Conflicts Between United States Immigration Law and the General Agreement on Trade in Services: Most-Favored-Nation Obligation
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I. Introduction
United States laws establishing qualifications for temporary, nonimmigrant classifications are potentially in violation of the United States’ obligations under the World Trade Organization’s (WTO)1 General Agreement on Trade in Services (GATS).2 These violations, if ever the subject of a WTO dispute, may force the United States to choose between accepting trade sanctions and changing existing immigration policy under external pressure. In either case, by consenting to the GATS at the conclusion of the Uruguay Round of Multilateral Trade Negotiations (Uruguay Round) and not necessarily complying with it, the United States has incurred potential WTO liabilities. If a dispute over immigration law was successful, the United States would be forced by the coercive trade power of its international obligations to change what is normally considered one of the most sovereign of attributes of statehood, the very power to determine which aliens are qualified to enter and remain in the country.
A. Overview of the General Agreement on Trade in Services
The GATS is a sister agreement to the more well-known General Agreement on Tariffs and Trade (GATT).3 While the GATT seeks to eliminate unnecessary or burdensome barriers to trade in goods, GATS seeks to eliminate unnecessary or burdensome barriers to trade in services. The GATS comprises the Agreement itself, its Annexes integrated into the Agreement, and various Schedules that indicate each member country’s specific obligations under the GATS, which are also integrated into the Agreement. At the Uruguay Round negotiations, member states agreed on certain universal principles for international trade in services, which became applicable at the entry into force on January 1, 1995.4 These provisions are called “General Obligations” and apply to all national trade measures unless exempted.5 For those obligations that the member nations could not agree to make immediately applicable, the members had the option of listing country-specific commitments under the obligation, with the understanding that the commitment might be increased in future negotiations. These provisions are called “Specific Commitments.”6 In this Article, we will focus on one of the General Obligations, specifically, the obligation to provide “Most-Favoured-Nation [MFN] Treatment.”7
Any member of the WTO has the right to challenge the measures of another member when the member “considers that any benefits accruing to it directly or indirectly under the [GATS] are being impaired.”8 Although a “losing” member may be required to provide compensation or suffer trade sanctions, “the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned.”9 Of course, the WTO’s Dispute Settlement Body (DSB) will determine if a conflict exists between GATS and national immigration laws, not United States courts.10 National courts may interpret the GATS obligations in reviewing domestic legislation,11 but the GATS does not create enforceable individual rights,12 only state’s rights on an international level; thus, how United States courts will interpret the GATS is not relevant here. This Article will address the likely outcomes of a DSB dispute over the conflicts between the MFN obligation and the United States temporary immigration, or “nonimmigrant,” classifications.
B. Overview of United States Immigration Law
In general, employment-based immigration laws are designed to, and have the effect of, insulating national labor markets from free market pressures on a global scale, contrary to the free trade in services spirit of the GATS. The rules governing employment-based nonimmigrant status establish who qualifies to work in the United States. These rules establish criteria that are seen not to have an adverse effect on the United States labor market such as certain education, skills and duties, period of employment, and often, nationality. The understanding is that allowing certain types of jobs to be filled by foreign labor increases the competitiveness and hiring capacity of United States businesses, whereas other types of jobs take away existing jobs from United States workers. Therefore, we can say that the employment-based nonimmigrant regime is protectionist and designed to minimize the effect of foreign labor availability on the United States labor market.
In order to test United States immigration law against the GATS, which are essentially two foreign bodies of law, we cannot rely on seemingly comparable terminology. The GATS has its own language and employment classifications that are not based on any state’s particular system. Unlike types of goods which may be indexed to universal classifications, each nation has a highly individualized immigration regime, often with unique terms and concepts that may not translate. On the other hand, the United States was one of the principal architects of the WTO, the GATS, and its predecessor, the GATT 1947. The United States is also the author of its own schedule of Specific Commitments and GATS exemptions. The United States-authored sections are therefore particularly amenable to a literal reading using the usual definitions under United States law. The DSB will look to the precise language and its usual meaning under United States law, not any subjective meaning.13 Because United States immigration law and the GATS establish different obligations, we will compare them as functions of international migration, taking into consideration that different sections may be read more or less literally.
By way of introduction, there are several bases on which an alien may qualify for employment authorization in the United States.14 The alien may qualify for unlimited, unrestricted authorization; limited duration, unrestricted authorization; or limited, temporary employment authorization, restricted to a petitioning employer.15 This last category includes most of the temporary, nonimmigrant categories, and will form the basis of this discussion since the other categories of employment authorization are not clearly covered by the GATS.16
When an employer petitions for an alien in a particular nonimmigrant classification, the adjudicator assesses the duties the alien will perform, the employer’s qualifications, the alien’s qualifications, and other factors to determine if the alien, employer, and position qualify. On many occasions, an alien may qualify for any one of several alternate nonimmigrant categories, so the employer may petition for classification under any one of them, but the adjudicator will confine the inquiry to the category requested.17 The choice of the category is therefore a crucial strategic decision. If qualified, the petition will be approved, the alien may be issued a visa to travel to the United States, and the alien may be admitted to the United States in the particular category. When admitted, the alien receives restricted authorization for the purpose of working for the petitioning employer, in the petitioned position, and sometimes only at a particular salary and location for a limited duration of time.18 The alien’s authorization to remain in the United States is also for the same duration.19 Since the alien receives authorization based on a petition by a particular employer, the alien’s status will end prematurely if the employment ends either by quitting or termination.20
This process of acquiring employment-authorized nonimmigrant status is administered by a variety of executive agencies. The U.S. Department of Labor (USDOL) and U.S. Citizenship and Immigration Services (USCIS)21 adjudicate aspects of the alien’s qualifications and affect on the labor market. The U.S. Department of State (USDOS) and U.S. Customs and Border Protection (USCBP)22 regulate aspects of admission by adjudicating visa applications, inspecting arriving aliens, and sometimes adjudicating qualifications.23 USDOL and U.S. Immigration and Customs Enforcement (USICE)24 enforce aspects of the terms of the alien’s stay and employer’s sponsorship, remove non-complying aliens, and penalize non-complying employers. A variety of other government agencies may be involved as necessary, such as for assessing security risks or monitoring the export of controlled technology. In this Article, we will only address the function of designating who is qualified to work in the United States as it involves the USDOL, USCIS, USDOS, and USCBP.