ࡱ> CEBM :*bjbj== "8WW8&lP P P 8 $%2 f%h%h%h%h%h%h%$' 9)J% %  %   f% f%  "qf% Z`P >$f%%0%T$) >)f%  Movement of Natural Persons (Mode 4) under the GATS Joint ϲʹ-World Bank Symposium The Regulators View Howard R. Dobson, International Economist U.S. Department of Labor A. Introduction The United States routinely admits many aliens into its territory on both a temporary and permanent basis. The publication Developments in International Migration to the United States: 2001 is available to symposium participants. This booklet briefly describes immigration measures in the United States and their application. In 1998, 660,477 persons immigrated to the United States. A total of 30,174,627 persons were admitted for (temporary) nonimmigrant purposes in that same year. Data on temporary entry of persons reflect admissions into the United States, and may include multiple entries by the same person during that time period. Consequently, they should not be interpreted as the actual number of individual nonimmigrant persons who enter the United States in a single year. For the General Agreement on Trade in Services (GATS), two sets of measures are important. Natural persons are admitted under the terms set out for commitments in the agreement concerning Mode 4. However, these persons are also subject to the national laws of the admitting country. Further, admissions of a temporary nature are only a part of the admissions process that is administered at the national level under immigration law and regulations. Immigration regulators frequently view persons who are admitted temporarily into the United States as potential permanent residents, or immigrants. Three government agencies have important responsibilities for immigration law in the United States. The Department of State issues visas for admission. The Immigration and Naturalization Service, an agency of the Department of Justice, manages our national border, as well as the immigration and citizenship laws. The Department of Labor manages certain labor law and labor certification programs that cover migrants. Listed below are the website addresses for these agencies that provide information concerning their areas of jurisdiction United Stated Department of State http://travel.state.gov/visa_services.html Basic information on visa issuance process http://travel.state.gov/visa_bulletin.html Recent data on visa processing Department of Justice, Immigration and Naturalization Service http://www.ins.gov/graphics/index.htm INS homepage http://www.ins.usdoj.gov/graphics/lawsregs/index.htm Immigration laws, regulations & guides Department of Labor http://www/dol/gov/dol/topic/hiring/foreign.htm Employment and Training Administration (ETA) hiring foreign workers http://edc.dws.state.ut/owl.asp Online wage data library (prevailing wage calculation) B. Temporary and Permanent Residence Persons temporarily admitted into the United States are referred to as nonimmigrants and are subject to specific laws and regulations concerning their purpose of entry and term of stay. For some nonimmigrant admissions, renewal of status may be given for additional periods of time, as necessary. Nonimmigrant persons are admitted with the understanding that they do not intend to establish permanent residence. Persons requesting permanent residence are intending to stay in the United States as immigrants. These requests are usually made for reasons of family reunification, employment, refugee or asylee status, or for reasons of diversity. A brief discussion of these considerations, as well as immigration statistics, can be found in the Developments publication. While outside GATS Mode 4, permanent residents and intending immigrants are an important area of national immigration law. Aliens whose employers are seeking permanent residence for them view these persons as a permanent addition to the companys workforce. Aliens often make requests for permanent residence after they have already been admitted into the United States on a temporary basis. The alien may independently elect to exercise rights that are available to the individual under national law. C. Mode 4 Improvement and Changes The United States seeks to maintain an open, transparent, predictable regime for temporary admission of foreign nationals. Our national measures are available to interested parties in publications and are posted at web site addresses. The U.S. Congress often changes our immigration law through enactment of new legislation. Members of Congress and officials in the Executive Branch of our government frequently consult with worker and business groups, as well as other interested parties, to ensure that our laws and regulations are clear and provide appropriate treatment aliens admitted into the United States. With respect to the GATS, our trade legislation establishes advisory committees where members of the U.S. business community, representatives from organized labor, and other groups can provide advice on trade issues, including Mode 4. There are six policy committees appointed by the United States Trade Representative. The Industry Committee structure has several subcommittees for important functions and economic sectors, such as trade in services. We are reviewing proposals in a number of areas related to Mode 4 of the GATS. One proposal calls for creation of a GATS Visa that is intended to provide services firms and natural persons providing services with quick and ready access to the United States market. Proponents of this approach are hoping to create a model that can be used by all ϲʹ members for the admission of services providers. D. Evaluation of Proposed Changes We cannot foresee the specific changes in immigration law that may result from negotiations under the GATS. However, several broad issues are relevant for consideration. Temporary admission categories used in our law that permit the alien to undertake economic activities will probably continue to be used in a general manner that does not specify services activities. The GATS does not contain an overall definition of trade in services. Many activities undertaken by aliens in our country may involve production of both goods and services. We will need to assess whether extensive changes in our national law will be required. Some proposals that would clarify our law may only require changes in regulation. What is the appropriate treatment for the alien under our national law? Is admission sought pursuant to a contract for employment with a U.S. employer? Is the alien seeking to provide services under an independent contract? Is this contract enforceable under U.S. law, or is it a contract for services under the laws of a foreign country? What types of services does the alien seek to provide? Are the aliens services at a professional or highly specialized level? If so, how are these identified and defined? Is licensure required to perform this activity in the United States? Is the alien seeking to provide less specialized skills that are generally available in the domestic labor force? What term of stay is useful for the alien in providing services? How should this be defined in our national law? Should an alien find that the term granted for initial entry is inadequate for completion of the services contract, what measures should be developed concerning extension of stay, or change in nonimmigrant status, that would be useful and would not be considered permanent employment in the United States? E. The General Agreement on Trade in Services (GATS) The GATS provides a framework for commitments concerning for movement of natural persons providing services, and contains an annex to the agreement for this purpose. The annex gives some guidance as to how the agreement should apply to the commitments undertaken. All parties recognize the need to take commitments concerning Mode 4. Some of the language contained in the annex is clear, while ambiguities exist in some other areas. It is presently unclear whether the language of this annex will be revised. It is clear that countries may require a visa as a condition for admission. However, parties affected by these obligations frequently refer to creation of new visas, or individual requirements and administrative processes necessary to obtain a visa. This is ambiguous. Countries often require a visa for the admission of persons under the Mode 4 commitments. A visa is a request to be admitted into the territory of a foreign country. This request encompasses considerations in the national law of the admitting country (e.g., national security, public health, etc.) that go beyond economic considerations. It may be useful to use the term admission category to describe the specific type of access the alien may seek, and the individual considerations that pertain to the type of admission being requested. The same annex states that the agreement does not apply to the employment market or employment on a permanent basis. Some people have argued that this wording may remove from coverage under the GATS foreign natural persons who are working for a domestic employer. Parties should consider whether some additional clarification needed in this area. Finally, it may be useful to clarify the nature of the commitments undertaken in Mode 4, and what types of information should be placed in country schedules. Commitments are based on the national law of the admitting country. How are these best described? Should countries write into their schedules provisions that constitute requirements for natural persons providing services that are not strictly listed as market access considerations under Article XVI of the agreement? Should more information be made available for users, if so, in what form? uv  a  ) i j  /0_aI!~!:* 5>*\ 5>*\CJaJ >*CJaJaJ>*5\"@_uv  ? @ ` a ( ) * + i  8h^8`h^`$a$8*9*i j    /0^$h^ha$$a$<^<`^ ^``a89:;H!I!~!!~##&&((8*9* & F$a$9*:* 1h/ =!"#$% i8@8 NormalCJ_HaJmH sH tH 2@2 Heading 1$@&5\0@0 Heading 2$@&>*J@J Heading 3I7$8$@&H$^I`CJaJ8@8 Heading 4$$@&a$5\B@B Heading 5$p@&^p`5\<A@< Default Paragraph Font<C@< Body Text Indent <^<,, Header  !, , Footer  !*>@"* Title$a$5\FR@2F Body Text Indent 2$h^ha$:&8@_uv?@`a( ) * + i j      /0`a89:;HI~~""$$;&0H0800_0_0_0_0000000000000(0(0000(04 0000 00000 0 0 0 0 0 0 0 0000000000 000 00 00 00 00 00000000000:*i 9*:*9*8@0(  B S  ?;&_u;& __ttvvZZ]]wz9Cbg01^_aa,JL(18GGIL47A ""$$R$W$$$$$7&;&ECN UserH:\WORK\wp\WTO\tesympppr.docECN UserbC:\WINNT\Profiles\dobson-howard\Application Data\Microsoft\Word\AutoRecovery save of tesympppr.asdECN UserH:\WORK\wp\WTO\tesympppr.docECN UserH:\WORK\wp\WTO\tesympppr.docECN UserH:\WORK\wp\WTO\tesympppr.docECN UserbC:\WINNT\Profiles\dobson-howard\Application Data\Microsoft\Word\AutoRecovery save of tesympppr.asdECN UserH:\WORK\wp\WTO\tesympppr.docECN UserH:\WORK\wp\WTO\tesympppr.docECN UserH:\WORK\wp\WTO\tesympppr.docECN UserbC:\WINNT\Profiles\dobson-howard\Application Data\Microsoft\Word\AutoRecovery save of tesympppr.asd 6%>X<6."*IFAx*4H02 S/(oxЧGv6 v:-wJ`*h ^`OJQJo(h ^`OJQJo(oh pp^p`OJQJo(h @ @ ^@ `OJQJo(h ^`OJQJo(oh ^`OJQJo(h ^`OJQJo(h ^`OJQJo(oh PP^P`OJQJo(h^`.h^`.hpLp^p`L.h@ @ ^@ `.h^`.hL^`L.h^`.h^`.hPLP^P`L.h ^`OJQJo(h ^`OJQJo(oh pp^p`OJQJo(h @ @ ^@ `OJQJo(h ^`OJQJo(oh ^`OJQJo(h ^`OJQJo(h ^`OJQJo(oh PP^P`OJQJo(h ^`OJQJo(h ^`OJQJo(oh pp^p`OJQJo(h @ @ ^@ `OJQJo(h ^`OJQJo(oh ^`OJQJo(h ^`OJQJo(h ^`OJQJo(oh PP^P`OJQJo(h ^`OJQJo(h ^`OJQJo(oh pp^p`OJQJo(h @ @ ^@ `OJQJo(h ^`OJQJo(oh ^`OJQJo(h ^`OJQJo(h ^`OJQJo(oh PP^P`OJQJo(h   ^ `OJQJo(h ^`OJQJo(oh ^`OJQJo(h | | ^| `OJQJo(h LL^L`OJQJo(oh ^`OJQJo(h ^`OJQJo(h ^`OJQJo(oh ^`OJQJo(h ^`OJQJo(h ^`OJQJo(oh pp^p`OJQJo(h @ @ ^@ `OJQJo(h ^`OJQJo(oh ^`OJQJo(h ^`OJQJo(h ^`OJQJo(oh PP^P`OJQJo( 4HGvv:-w/(o6%*IFA<6_U`UT`U_U @CJOJQJo(" `U T@CJOJQJo( ``U`T@CJ OJQJo("                                                                @ttvmmtt:&@@UnknownGz Times New Roman5Symbol3& z Arial?5 z Courier New;Wingdings"htdFGdF(dF sC$r0d&_ 2QECN UserECN UserOh+'0  4 @ L Xdlt|ss ECN User CN CN  Normal.dot ECN Usert11 Microsoft Word 9.0@r@P@gM@7՜.+,0 hp  U.S. Dept of LaborC&  Title  !"#$%&'()*+,-./013456789;<=>?@ADRoot Entry FgF1Table)WordDocument"8SummaryInformation(2DocumentSummaryInformation8:CompObjjObjectPoolgg  FMicrosoft Word Document MSWordDocWord.Document.89q