Free Trade, Not Free Admission of Workers

Trade agreements, the trade negotiating process, and trade pact approval measures (i.e. "fast track" authority) all must be carefully monitored to ensure that the trade deals do not cause increases in admissions of foreign workers or erode congressional authority over visa rules. The current fast-track proposal (TPA) and the Trans-Pacific Partnership (TPP) would have Congress surrender its authority over guestworker policies to the executive branch and its trade negotiators and ultimately to international trade tribunals. This means that we would be stuck with the dysfunctional guestworker programs that we now have and kept on a one-way street allowing only more access for foreign workers to U.S. jobs, with no means to reverse direction.

U.S. trade negotiators historically have sought to offer commitments on visas in trade agreements as a bargaining chip to other nations in exchange for overseas market access for U.S. corporations. They aim to guarantee other countries that their companies will be able to provide certain labor and professional services in the United States. What they refer to as "trade in services" often means foreign companies bringing in computer programmers, nurses, truck drivers, accountants, physical therapists, or even construction, assembly line, or agricultural workers.

Already the number of new annual guest worker visa issuances that are directly linked to trade agreements is tens of thousands per year (an exact accounting is not possible, because DHS does not disclose the annual number of NAFTA-related issuances, which have reached more than 70,000 in some years).

These commitments usually result in increases in the number of foreign workers with access to U.S. job opportunities, which can adversely affect U.S. workers in certain occupations or geographic regions. For example, the U.S.-Australia trade agreement of 2005 created a new visa category for Australian workers that brings in thousands of new workers each year. The most recent example is the new trade pact with South Korea, which included a provision to allow transferred employees of Korean companies (entering on L visas for intracompany transferees) to stay five years instead of three. These piecemeal changes add up.

Even more significantly, typically the trade agreement commitments lock in not only a specific number of guestworker admissions, but also the guestworker program rules, including criteria for admission, duration of stay, spousal employment, occupational categories, and conditions of employment. This means that Congress may not be able to make changes to the programs to respond to changes in the U.S. economy or labor markets or to close loopholes or other flaws in the program that lead to fraud or abuse, for example. As one U.S. negotiator once told me, "The point is to nail down access so that it cannot be changed."

Depending on the commitments made by trade negotiators, if Congress were to later see fit to change the rules for any guestworker program covered by a trade agreement, another country that is a party to the treaty could seek to block them, maintaining that the new rules are a trade barrier. Such disputes are resolved by international tribunals. If the tribunal decides that the new rules disadvantage a business interest of the complaining country, the United States might have to reverse the rules, face sanctions, or pay damages.

To complicate matters, the language in the trade agreements is deliberately vague, often contradictory, and subject to varying interpretations. It is impossible to predict how they will play out, particularly in the hands of an unaccountable panel of international trade referees.

Trade agreement proponents often maintain that the commitments 1) are not immigration-related because they involve non-immigrant or "temporary" visas; and 2) make no changes to current immigration law. These arguments are specious. Obviously, the admission of temporary workers is an immigration issue; it's covered in the Immigration and Nationality Act, which governs the immigration system. And the admission of temporary workers is not benign; it certainly can have a significant adverse impact on U.S. workers. Look no farther than the Disney and Southern California Edison cases to see how. Further, the so-called temporary professional guest worker visas programs are set up to be a stepping stone to permanent residence and are truly more transitional than temporary. And the issue is not so much that trade agreements change immigration law as that they change who gets to decide what the law can be. Nothing the House leadership has said about the deal indicates otherwise.

The Obama administration has already encroached egregiously on congressional authority over immigration in large and small ways. It has issued millions of work permits outside the bounds of the law. It is in the process of changing the rules to make it easier for foreign labor contractors to place more foreign workers in U.S. jobs. Fast-track negotiating authority is scary enough, but in addition the TPP is considered to be a "living agreement" and would be like giving the White House a blank check for visa admissions, subject to change without congressional approval at any time.

There is no need for immigration and visa commitments in trade agreements. "Trade in services" has become a euphemism for the replacement of U.S. workers, and Congress should not approve any deal or process that furthers this agenda.