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U.S. Visa Fees May Violate Trade Agreement

Increases for the H-1B and L-1 permits for foreigners working in the U.S. may not meet requirements of the General Agreement on Trade in Services, finds legal analysis.

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Legislation attaching new fees to U.S. visas for foreign workers may be in violation of an international trade agreement, according to a new study.

Passed in August 2010, Public Law 111-230 increases the filing fee and fraud prevention and detection fee by $2,000 for H-1B visas and by $2,250 for L-1 visas. The law only applies to companies that employ 50 or more workers in the United States where more than 50% of those workers are in H-1B or L-1 status.

These fee increases likely violate U.S. commitments under the General Agreement on Trade in Services (GATS) in several ways, according to a legal analysis written by analyst Stephen Claeys for the National Foundation for American Policy.

GATS is a multilateral agreement governing trade in services among World Trade Organization (WTO) members, including the United States; it went into effect in January 1995.

When the law raising fees visas was passed, one of its proponents, Sen. Charles Schumer, D-NY, said its intention was to make visas less available to foreign workers so companies would have to hire U.S. citizens, Claeys said, speaking on a conference call about his research Thursday.

This intent to "make these visas less available and more difficult to procure" violates GATS because it willfully restricts the entry of foreign workers, he said.

"The U.S. made a [commitment} that all of its measures would be made in impartial manner," he said. "Increasing them to make them less available would not meet that standard."

The law also appears to violate GATS because it could nullify or impair benefits of other WTO members, whereas the agreement stipulates that any country signing the agreement must not take this type of action, he said.

Claeys said that the law's fee increase for companies with more than 50% of employees having a visa status could affect companies only in a certain sector, which might impact a WTO member with much of its industry in that sector.

He added that these potential violations don't mean that the U.S. is not allowed to change its immigration or foreign-worker visa policies. It merely raises awareness of potential discrepancies between a law that's been passed and the trade agreement in which the country participates.

"The U.S. made these obligations under the GATS and these visa fee increases are potentially violating these obligations," he said.

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