Communications Workers of America

• By: lvanderwoude
• May 13, 2015

President Obama is encountering a lot of pushback from his own party regarding his Trans-Pacific Partnership (TPP) proposal. In case you haven’t been following this, one of the major points of controversy on this foreign trade measure is that it is secret; members of Congress who want to read the agreement must do so in a secure room, without being even allowed to take notes. Pretty scary stuff. No wonder that we are seeing startlingly strong language from even a Nobel-laureate economist.

So, how does all this affect the H-1B work visa? Your response may be “But that is not trade!”, but actually it is — officially, trade consists of both goods and services. Moreover, previous trade agreements have had major impacts on H-1B. The 1994 GATS trade treaty explicitly included H-1B, and most significantly, mandated that our yearly H-1B cap must be at least 65,000 visas. In other words, even if somehow Congress wanted to do the right thing about H-1B, it would not have the power to set a cap below 65K.

I’ll have more to say about GATS below, but first let’s turn to the political (and geopolitical) aspects. A number of people have charged that TPP could be used to sidestep Congress in setting immigration policy. TPP proponents dismiss that as an “urban legend,” but none of them has categorically denied the possibility, and guess what! Even if TPP were not to have any power over immigration at all (which is not clear), the pro-TPP pols have a surefire fingers-crossed-behind-the-back way to lie about TPP and H-1B: The latter is officially a nonimmigrant visa. TPP could easily result in some trade treaty, consisting of thousands of pages, with something on importing foreign labor buried deep inside, and Congress could either miss it (or pretend to do so). At any rate, they would only be able to vote up or down, and there may be enough goodies in there for most people in Congress to vote yes even if they were aware of the foreign labor provision.

The other political issue is China. One of the various goals claimed by TPP proponents has been that TPP is needed as a counterweight to China for influence in Asia. I suspect that inside the White House, this is actually THE goal. I’ve noted before that many in the legislative and executive branches also see H-1B and green cards as a means to thwart China’s growing power. Here is an excerpt from the above link:

Moreover, what is more disturbing is that many in DC see the green card programs as a way to “steal” STEM workers from China. I had heard rumors of this for years, but still was taken aback when they were confirmed at a talk at Georgetown University I gave a few years ago on the quality of the foreign STEM students in the U.S. An attendee came up to me afterward, and turned out to be a young green card case adjudicator at USCIS. He said something close to this: “I don’t see what the fuss is about. My understanding is that our mission is to grab STEM students away from China. The quality doesn’t matter.”

I don’t have the expertise with which to determine whether TPP is indeed a geopolitical necessity with regard to China. But I certainly know about foreign tech worker programs, and I know that the above rational given by someone from the executive branch is just plain wrong, in numerous ways. I suspect the same is true regarding the China Specter claims for TPP.

Now, here is a fascinating aspect of the GATS treaty: The portion of the document related to H-1B is GATS/SC/90, Section I.4, starting at page 7. There you will see language that is basically identical to our H-1B statute, except for one glaring exception, part (d):

Specialty occupation [i.e. H-1B] aliens and their employers must be in compliance with all labour condition application requirements that are attested to by the established employer. These requirements are: … d) the employer has not laid off or otherwise displaced workers in the subject occupation in the previous six months and will not lay off or displace any US worker during the 90-day period following the filing of an application or the 90-day periods preceding and following the filing of any visa petition supported by the application; e) the employer has taken and is taking timely and significant steps to recruit and retain sufficient US workers in the specialty occupation;…

For those of you who don’t have the statutes memorized, that language in (d) is what is in the law for H-1B dependent employers, not for H-1B employers in general. Yes,the anti-displacement, anti-layoff, American recruitment-required provisions of our H-1B dependent law actually apply to Google, Intel, Microsoft and so on!Thus, since treaties have the force of law, the U.S. has been in violation of the law all these years.

In other words, not only do these trade agreements open all kinds of worrisome doors, but countries can pick and choose which ones they really want to comply with, as long as other signatories to the treaty don’t object, which of course India certainly won’t do in this case.

In other words, there is far more to TPP than the price of instant ramen.