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1 (November 16, 2016)

handle is hein.crs/crsmthmaocj0001 and id is 1 raw text is: CRS Reports & Analysis Legal Sidebar Certain U.S. Laws for Foreign Workers Draw Fire from India in the WTO 11/16/2016 In March 2016, India officially brought a potentially major chal1enge in the World Trade Organization (WTO) dispute settlement system against the United States. Specifically, the dispute concerns U.S. immigration laws that (1) increased fees for certain temporary foreign workers and (2) allotted a specific number of temporary worker visas to Chilean and Singaporean nationals. India has alleged that the United States is violating its obligations under the General Agreemnt on (GATS), a binding agreement for all WTO member countries, as well as the GATS Annex.o Movement of Natural Persons Supplying Services, to not discriminate against or between non-U.S. service providers. Based on . r.r this appears to be the first time a WTO member has formally filed a dispute challenging the immigration laws of another member as a violation of the GATS. For several years, certain U.S. observers cautioned that fee increases for temporary foreign worker petitions and might be disputed as GATS violations. Others suggested that this challenge isan atmptQ ffset India'sloss to the United States in another recent WTO dispute over India's laws regulating solar energy. Fee Increases for Certain L-1 and H-1B Worker Petitions: Under U.S. law, employers who want to import temporary foreign workers must file a petition with immigration authorities and pay a fee. In 2010, Congress enacted a law raising petition fees for L-1 nonimmigrant workers (intracompany transferees employed as managers, executives, or employees with specialized knowledge) and H-1B nonimmigrant workers (persons in specialty occupations). In 2015, Congress again raised these rates through September 30, 2025. Both fee hikes apply only to visa petitioners with 50 or more employees in the United States, and then only if more than 50% of those employees are in either an L-1 or H-1B visa status. India had lr atend in 2012 to file a WTO dispute against the 2010 fee increases, but ultimately decided to pr.tet infornally to the United States. The 2015 increases apparently motivate Indi to file a formal WTO dispute. India contends, among other things, that the 2010 and 2015 fee increases do not comply with mos- re-nation (MFN) treatment under the GATS, which generally prohibits a WTO member from treating the services and service suppliers of one WTO member less favorably than it treats comparable services and suppliers of another. (There are certain limitedexemptio ns to MFN treatment that are irrelevant to India's complaint). The fee hikes do not specifically apply to workers of a particular nationality, and, therefore, they are facially neutral in application to WTO members. However, some allege that tht hikawoul disproportionately affect Indian-owned IT businesses operating in the United States. This alleged effect might be relevant to India's claim because the WTO has regognized that a GATS MFN yiolation may result when a facially neutral measure has a comparatively disproportionate negative impact on service suppliers of one WTO Member. India also asserts that the fee increases violate GATS nial treamn and market.aces obligations under the terms agreed to and specified by the United States in its GATS Schedule. National treatment means that a WTO member cannot treat the services and service suppliers of another WTO member less favorably than it treats comparable domestic services suppliers. This obligation is subject to each WTO member's schedule of specific commitm ents in which each member enumerates commitments to particular laws and policies, as well as limitations on and exceptions to these commitments. The schedule of specific commitments may include provisions respecting immigration and the delivery of services through the teMporar presence of a natural person of one m in the territory of another. Such provisions may treat foreign nationals differently than U.S. nationals.

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