One of the latest areas of contention in the Doha round is India's concern that its citizens cannot obtain enough U.S. visas to provide GATS authorized services in the U.S. See Minister Kamal Nath's statement.
India has raised the issue of visas in negotiations, but we might ask whether there is any potential for a dispute under current law. Of course, the Annex on Movement of Natural Persons provides some exclusions from the GATS for certain related issues (see paragraphs 2 and 4 quoted below). Paragraph 2 appears to apply to those seeking employment in the host country, while paragraph 4 applies to those employed abroad who travel to the host country to perform services. Assuming India's concern is covered by paragraph 4, note the proviso to paragraph 4. Under the proviso to para. 4, the nullification or impairment must be of a specific commitment. So, India would have to identify a specific U.S. Mode 4 commitment that is nullified or impaired by U.S. visa requirements. Here, it is worth noting that the U.S. reserves a portion of its H1B visas for Chile, Australia and Singapore under its FTA agreements with those countries. It may be that this denial of mfn itself constitutes the nullification or impairment: that the relative competitive position vis a vis Chile, Australia and Singapore is one of the benefits of the commitment. So, there would have to be a specific commitment, and denial of mfn in this context would have to be viewed as nullification or impairment for India to have a successful dispute settlement case.
From the Annex on Movement of Natural Persons:
2. The Agreement shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
4. The Agreement shall not prevent a Member from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Member under the terms of a specific commitment.[1]
[1] The sole fact of requiring a visa for natural persons of certain Members and not for those of others shall not be regarded as nullifying or impairing benefits under a specific commitment.
