Obama’s trade win brings H-1B unease

Will the Trans-Pacific Partnership he's negotiating tie the hands of visa reformers?

011215 president barack obama
Credit: REUTERS/Kevin Lamarque

There is wariness about President Barack Obama's push for new trade agreements that's likely to grow with the Senate's final approval Wednesday, by a 60-38 vote, of fast-track negotiating authority.

With that authority, the president can deliver trade agreements, developed in secret, to Congress to be approved or rejected, but not amended. This increases the administration's negotiating power with other nations because Congress won't be able to change the terms.

The H-1B visa has a major role in services trade. U.S. IT professionals whose duties are being moved overseas can find themselves training temporary visa-holding workers as a condition of severance deals. There's a lot of anger about the practice, but from a global perspective -- especially in India -- the H-1B visa is seen as an instrument of free trade and restricting it is called protectionist.

If Congress moves to revise the nation's H-1B visa program and impose restrictions on the use of visas in offshoring arrangements, could would-be reformers find themselves thwarted by a trade agreement? The top U.S. trade negotiator says no -- the proposed Trans-Pacific Partnership (TPP) treaty won't impede lawmakers.

There is no provision in the treaty that "will require changes to U.S. immigration law, regulations, policy or practices," Michael Froman, the U.S. trade representative, wrote in a recent letter to Sen. Chuck Grassley (R-Iowa).

But Daniel Costa, director of immigration law and policy research at the Economic Policy Institute (EPI), isn't so sure. One aspect of the agreement that remains a secret is the Investor-State Dispute Mechanism, which might serve as a way for a foreign corporation to challenge an immigration law, policy or practice, if it feels that "visa processing times, fees or rules are too onerous and cut into profits," he said.

Froman, said Costa, "doesn't say whether TPP would have a chilling effect on the development of future immigration rules or practices -- he just says no current law, regulation, policy or practice will be impacted."

In an analysis for the EPI, Costa and Ron Hira, an associate professor of public policy at Howard University, argue that the trade agreement will usurp the U.S. government's immigration authority.

Some lawmakers have been pushing for restrictions on the H-1B visa, particularly in the way it is used by offshore providers of IT services. One proposal has been to restrict H-1B usage to 50% of a company's workforce.

Russ Harrison, director government relations at IEEE-USA, an organization that has been critical of the H-1B program's role in job displacement, said the treaty appears to be directed at ensuring that migrant workers are protected and given basic legal rights. These are provisions more aimed at ensuring reforms in countries other than the U.S., he said.

But could the trade agreement pose problems for H-1B reformers? Harrison said it doesn't look like that will be a problem for now, but it's "obviously a concern."

William Stock, an immigration attorney and president-elect of the American Immigration Lawyers Association, said that, unless there are "specific commitments" agreed to by the U.S in a treaty that cover a particular area of visa policy, "there would be no basis for another state party to the agreement to complain about a change in that visa policy."

For example, said Stock, this means that even if the U.S. agreed to always make at least 65,000 H-1B visas available per year, Congress wouldn't be prevented from making other changes to the H-1B program. In fact, even if specific commitments were made, he said, it "wouldn't prevent Congress from making changes -- it would just be possible for other states to complain to the World Trade Organization if we did, and possibly get agreement to impose reciprocal restrictions on U.S. service providers in their country."

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