I mentioned the other day a U.S. Senate bill that funded border security by taxing visa applications for skilled workers coming to the U.S. Well, now the bill has been signed into law, so maybe it's worth a little more detailed discussion.
In my earlier post, I suggested there might be a GATS violation, either through MFN (Article II) or NT (Article XVII). I still think there might be, but just to be clear, it's not an easy case to make. With de facto discrimination claims, as this would be, there are a lot of facts that need to be fleshed out. You really have to get a good understanding of how the particular industry works.
For example, with regard to the services at issue, it's not completely clear to me what exactly these services are. Are we talking about the service of bringing skilled workers to the U.S.? Or is it the services provided by these workers? If the latter, what is the range of services they are providing? And, importantly, who are the domestic competitors of the foreign service providers?
As to "less favorable treatment," there have been suggestions that only 4 Indian companies would be affected by this law. If that's true, that seems like good evidence of discrimination against Indian companies. But, getting back to the issue of identification of the services, who are all the other service providers? I don't think it's enough to just say, here are 4 Indian service providers being hurt. For MFN, there would need to be some evidence of how the rest of the world is being treated, and that other countries received better treatment in relation to "like" services.
I have not heard anything definite about whether India plans to challenge the law at the WTO. If it does, I think there is a good potential case there, subject to digging up evidence on these and other points. Also, other GATS provisions might come into play (Article VI, perhaps?), but I would need a better sense of the facts before saying anything specific.
Finally, over at the Volokh Conspiracy, Stewart Baker writes:
But there could easily be a WTO challenge to the new fee. In a dumb move that hasn’t recently been repeated, the US long ago agreed at the WTO that it would always allow at least 65,000 H-1B visa holders to enter the country. I would not be surprised to see India challenge the new fee on a couple of WTO grounds – that it discriminates in practice against foreign companies and that it effectively withdraws – or at least improperly burdens — the binding US commitment to admit 65 thousand workers (after all, India will argue, no one would think the US was living up to its WTO commitment if it raised H-1B visa fees to $1 million apiece).
Raising the fee to $1 million on every application could be a problem under the commitment, although that seems more extreme than what's going on here. But again, I'd want to know a little more about the underlying facts before saying anything definitive on how the GATS commitment in question applies.
