Getting Rid of H-1B Visas: Easier Said Than Done

Why the battle may be too big even for Trump.

During last week’s GOP debate at Miami University, front-runner Donald Trump answered a question about his position on the H-1B guest-worker program noting several times that it was unfair to American workers then concluding that “we should end it” entirely. While the sentiment’s appreciated, ending the H-1B program is easier said than done. 

Under the WTO’s General Agreement on Trade in Services (GATS), the US has certain obligations towards foreign nationals wishing to come here and work. Violating these obligations can mean penalties such as trade sanctions. Hours before Trump made his statement, India actually filed a complaint with the WTO precisely about changes Congress recently made to the H-1B program. Included in last December’s omnibus spending bill was an increase in H-1B application fees from $2,000 to $4,000, an insertion designed to fund the medical care of injured volunteers during 9/11. India now claims this violates GATS’s provision on the “Movement of Natural Persons Supplying Services” and that it discriminates against the tens of thousands of people India sends over every year to work.

GATS is a supplemental agreement to the more well-known General Agreement on Tariffs and Trade or ‘GATT.’  While GATT seeks to end barriers to trade in goods, GATS seeks to end barriers to trade in services. “Services” really means ‘people’ and GATS’s function is basically to govern “conflicting” immigration laws between member-states. Under GATS, when a member “considers that any benefits accruing to it directly or indirectly” under the agreement “are being impaired”, it accrues a right to challenge the opposing member’s action. A panel in Geneva called the Dispute Settlement Body then adjudicates the complaint, determining whether the change to the member’s immigration laws do in fact conflict with its obligations under GATS. The court can then levy trade sanctions and/or demand that the “offending” nation compensate the “losing” nation. 

The H-1B program was created in 1990 to fill the employee “shortages” then being claimed by the tech industry. Critics of the program argue that its less about bringing over the “best and brightest” (as corporate PR departments tell us) and more about bringing over “ordinary people doing ordinary work.” Clients of ours, for instance, held fairly rudimentary technician roles at Southern California Edison before the company’s executives replaced them with younger and cheaper workers brought over from India. Meanwhile, say critics, there are indirect effects of the program, including “internal brain drain” or the discouraging of American students from pursuing tech-based fields of study (According to Census data, currently only half of STEM-graduates are actually employed in STEM-fields). Although having to pay “compensation” to finally end such an apparently harmful program may seem like adding insult to injury, any price levied on the US government by Geneva may actually be worth it. 

India’s anger over the recent change is understandable. Like many corrupted and impoverished nations, India encourages out-migration in order to relieve its seemingly unending population growth and receive “remittance” funds sent from abroad. According to 2012 figures, the country received almost $12 billion in remittances just from the US alone. 

The philosophy underlying GATS is of course one of free trade across borders and free markets between nations. The belief apparently is that “services” should be sent across the globe just as easily as goods are under GATT, all in the name of global competiveness, etc. But as Mark Krikorian from the Center of Immigration Studies likes to say, ‘importing people is not like importing widgets.’ People bring with them cultural, religious and political differences, contribute to urban sprawl, and go on to create even more people through births and chain migration. Then there’s the conflict between the “right” to immigrate and the right to self-govern. Taking away a nation’s ability to decide who and how many people can immigrate and settle within its borders is to take away its sovereignty. And an unsovereign nation is no nation at all. 

If Trump does manage to become president, let’s hope his skills at negotiating international trade deals are as strong as he claims they are. We’ll certainly need them if we’re going to make America sovereign again. 

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