EPI: TiSA: A Secret Trade Agreement That Will Usurp America’s Authority to Make Immigration Policy

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Proponents of Trade Promotion Authority (aka fast-track trade negotiating authority), which the House of Representatives will likely vote on soon, have made an unequivocal promise that future trade agreements like the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) will explicitly exclude any provisions that would require a change to U.S. immigration law, regulations, policy, or practices. Many members of Congress in both parties have expressed concern that trade agreements might limit America’s ability to set immigration policy. Republican congressmen Paul Ryan and Robert Goodlatte have responded by explicitly assuring members of their party that there will be no immigration provisions in any trade bill.

[Reposted from the EPI blog  | Daniel Costa and Ron Hira  |  June 11, 2015]

U.S. Trade Representative Michael Froman has stated in an interrogatory with Sen. Chuck Grassley (R-Iowa) and via letter that nothing is being negotiated in the TPP that “would require any modification to U.S. immigration law or policy or any changes to the U.S. visa system.”

Furthermore, just a few weeks ago, the Senate Finance Committee released a statement titled “TPA Drives High-Quality Trade Agreements, Not Immigration Law: The Administration Has No Authority Under TPA or Any Pending Trade Agreement to Unilaterally Change U.S. Immigration Laws,” and the committee’s May 12 report on the Fast Track bill that was eventually passed by the full Senate contained this relevant language:

For many years, Congress has made it abundantly clear that international trade agreements should not change, nor require any change, to U.S. immigration law and practice…

The Committee continues to believe that it is not appropriate to negotiate in a trade agreement any provision that would (1) require changes to U.S. immigration law, regulations, policy, or practice; (2) accord immigration-related benefits to parties to trade agreements; (3) commit the United States to keep unchanged, with respect to nationals of parties to trade agreements, one or more existing provisions of U.S. immigration law, policy, or practice; or (4) expand to additional countries immigration-related commitments already made by the United States in earlier trade agreements.

Congress’ intent could not be any clearer, but there’s strong evidence to doubt that these assurances will be upheld. If you read these statements closely, you’ll see that most of them concern only the TPP and its lack of impact on immigration policy. But the Trade in Services Agreement, or “TiSA”—another trade deal being negotiated in secret by the Obama administration—is another story; there is little doubt that it will constrain the future ability of the United States Congress to regulate U.S. immigration policy. In fact, deregulating the U.S. work visa system, and therefore opening it up to foreign corporations that provide services (as opposed to goods) is the explicit purpose of an entire annex (section) in TiSA, entitled “Movement of Natural Persons.” The text was heretofore secret until Wikileaks published it on its website last week.

It should be noted that much of the text is a proposed draft for negotiation, and within the text, numerous parts of specific provisions are bracketed to denote which countries support or oppose particular sections or language within sections. But the thrust of the text in the annex is clear. For example, Article 4 is about the schedules (i.e., lists) of commitments that countries will have to put together regarding the “Entry and Temporary Stay of Natural Persons,” and a proposed version of Article 4, Section 2 would prohibit member states from “maintain[ing] or adopt[ing] Economic Needs Tests, including labor market tests, as a requirement for a visa or work permit” in the sectors where commitments are made. (In other words, U.S. laws or regulations limiting guestworkers only to jobs where no U.S. workers were available would violate the terms of the treaty.)

Proposed draft Article 5, Section 1 then requires that “Each Party shall take market access and national treatment commitments for intra-corporate transferees, business visitors and categories delinked from commercial presence: contractual service suppliers and independent professionals.” Section 3 gets more specific about the sectors of the economy where member states will have to allow access to intra-corporate transferees, business visitors, contractual service suppliers, and independent professionals:

3. Subject to any terms, limitations, conditions and qualifications that the Party sets out in its Schedule, Parties shall allow entry and temporary stay of [contractual service suppliers and independent professionals3] for a minimum of [X%] of the following sectors/sub-sectors:

Professional services:

  1. Accounting, auditing and bookkeeping services (CPC 862)
  2. Architectural services (CPC 8671)
  3. Engineering services (CPC 8672)
  4. Integrated engineering services (CPC 8673)
  5. Urban planning and landscape architectural services (CPC 8674)
  6. Medical & dental services (CPC 9312)
  7. Veterinary services (CPC 932)
  8. Services provided by midwives, nurses, physiotherapists and paramedical personnel (CPC 93191)

Computer and related services:

  1. Consultancy services related to the installation of computer hardware (CPC 841)
  2. Software implementation services (CPC 842)
  3. Data processing services (CPC 843)
  4. Data base services (CPC 844)
  5. Other (CPC 845+849)

Research and Development services:

  1. R&D services on natural sciences (CPC 851)
  2. R&D services on social sciences and humanities (CPC 852)
  3. Interdisciplinary R&D services (CPC 853)

Other business services

  1. Advertising services (CPC 871)
  2. Market research and public opinion polling services (CPC 864)
  3. Management consulting services (CPC 865)
  4. Services related to management consulting (CPC 866)
  5. Technical testing & analysis services (CPC 8676)
  6. [CH propose: Services incidental to manufacturing]
  7. Related scientific and technical consulting services (CPC 8675)
  8. Maintenance and repair of equipment (not including maritime vessels, aircraft or other transport equipment) (CPC 633 + 8861-8866)
  9. Specialty design services (CPC 87907)

Construction and related engineering services:

  1. General construction work for buildings (CPC 512)
  2. General construction work for civil engineering (CPC 513)
  3. Installation and assembly work (CPC514+516)
  4. Building completion and finishing work (CPC 517)
  5. Other (CPC 511+515+518)

Environmental services:

  1. Sewage services (CPC 9401)
  2. Refuse disposal services (CPC 9402)
  3. Sanitation and similar services (CPC 9403)
  4. Other

[CH propose: Financial Services]

[CH propose: Financial advisors]

Tourism and travel related services:

  1. Hotels and Restaurants (CPC Ex. 641)
  2. Travel Agencies and Tour Operators services (CPC 7471)
  3. Tourist Guides services (CPC 7472)

[CH propose: Transport services

[CH propose: Other services auxiliary to all modes of transport CPC]

Recreational, cultural and sporting services:

38. Sporting and other recreational services (CPC 964)

In the United States, this means the L-1 intra-company transferee, B-1 business visitor visa programs, and any other applicable visa programs could be used to permit temporary employees from abroad to work in the United States, and no economic needs tests (i.e., testing the labor market) could ever be imposed by Congress. To translate, that means that foreign firms would not be required to advertise jobs to U.S. workers, or to hire U.S. workers if they were equally or better qualified for job openings in their own country. (It should be noted that the L-1 is already restricted in this way, as a result of the United States’ commitments under the General Agreement on Trade and Tariffs (GATS).) These visa programs are already under-regulated and abused by employers, but since neither the L-1 nor the B-1 visa program is numerically limited by law, this means that potentially hundreds of thousands of workers could enter the United States every year to work in these 38 sectors.

This is worrying and problematic, not because there shouldn’t be any foreign competition from service-providing companies in the United States, but because the competitive advantage foreign companies will get from TiSA is the ability to provide cheaper services by importing much cheaper labor to supplant American workers. They’ll do this by paying their workers the much lower salaries they would earn in their home countries (as they often already do in the L-1 and B-1 visa programs), and the United States might even be prohibited in future from imposing minimum or prevailing wage standards (at present, neither the L-1 or B-1 visa program has a minimum or prevailing wage rule).

There is clear precedent for this. The multilateral GATS agreement, to which the United States is a party, includes limits on the U.S. government’s ability to change the rules on H-1B and L-1 guestworker visas. That’s why when Congress wants to raise visa fees, as they did in 2010, the Indian government cries foul and threatens to formally complain to the World Trade Organization. The U.S.-Chile and U.S.-Singapore trade deals also included new guestworker programs similar to the H-1B and constraints on the U.S. government’s ability to set rules on L-1 intracompany transfers.

The TiSA draft annex on Movement of Natural Persons would also likely restrict the ability of the current and future administrations to continue some of the basic immigration procedures it currently follows, such as requiring an in-person interview with L-1 applicants. The draft treaty might even prohibit common sense legislative proposals that Congress has considered over the past few years, including minimum wage rules for companies seeking to hire guestworkers in the L-1 visa program. This is particularly disturbing since the L-1 visa program has been a primary vehicle to facilitate the offshoring of high wage jobs and for replacing American workers with cheaper guestworkers.

TiSA has been written in secret by and for major corporations that will benefit greatly if it becomes law. If the House of Representatives grants the Obama administration the fast-track trade promotion authority it seeks, the authority will be valid for six years, which means TiSA (like TPP) would also get an up-or-down vote in Congress without any amendments—making it very likely to pass and become law without the necessary democratic deliberations on immigration that such major changes should have. The leaked TiSA text makes it clear that contrary to the claims by proponents of fast-track trade promotion authority, the reality is that those voting for fast track are ceding key powers to make immigration law and policy to an unelected group of corporations and foreign governments.


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