TPP and H-1B

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, in essence locked us in to a yearly H-1B cap of 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 rationale 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.

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20 thoughts on “TPP and H-1B

  1. If we can’t see the text of the proposed law, you can bet it’s full of bombs. This is not how democracy is supposed to work, if we work like this we are no longer in a democracy.

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  2. Very interesting. Is there no way to bring a case based on the violation of this part (d) provision? Only sovereign signatory states have standing to complain in the WTO I gather. Any novel theories to bring a case in Federal Court based on treaty provisions?

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    • I’m sure there is a legal route that could be taken, say a writ of mandamus, which as I understand it forces the government to follow its own rules. As always, though, it’s a matter of will and funds.

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  3. This notion that the H-1B is to be used to deprive China of STEM talent is beyond stupid. The problem with opening the door to the hordes of Chinese is that there are 4 chinese for every American, and 4 Indians as well. If we are to hire them all, none of us will have a job, period. What then? It’s beyond mendacious. We cannot empty China of tech workers, and even by trying, we enslave ourselves and make our industry dependent on them. This is wrong, wrong, wrong.

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  4. Hi Norm,

    Nike CEO just running his mouth that “TPP” – which would primarily reduce the tariff on shoes shipped from Vietnam down from the current 20% – would allow Nike to “create 10,000 more U.S. jobs.” He’s also vague about what these jobs would be, since most “Nike” jobs are minimum wage mall jobs.

    Since the wholesale cost of Nikes from Vietnam is probably less than $10, this would shave $2 off shoes that retail for $50 to $100. And it would give the same benefit to Nike competitors. So what is this guy thinking?

    Obama visited Nike headquarters in Oregon. But even WSJ states “It isn’t clear how lowering tariffs on imports into the U.S. would help Nike boost jobs in the country.”

    http://www.wsj.com/articles/nike-offers-to-bring-10-000-jobs-to-u-s-under-pacific-trade-deal-1431089594

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      • Yes. When they moved the manufacturing off-shore they certainly did NOT drop prices in the USA by 30%, 40%,… 60%. No,the prices continued their climb… And in many cases, the quality dropped. It was also interesting that you did not see a variety of products on retail shelves with COOL labels prominent for shoppers to make choices.

        In many cases it was more a matter of the USA and European products simply disappearing. Also, rather than a smooth range of price and quality it has largely become a dichotomy with good (design, materials, workmanship) suddenly soaring in price, while the rest is cheap trash which doesn’t last.

        My economic mind stays on the alert for both direct and indirect signs. There have been bits of news coverage about it, but it goes right virtually everyone except for a vague feeling. I see “new” products set out for garbage pick-up quite a lot… including electronics, furniture… when out walking the Hund. Tools at hardware stores… Lots of over-priced trash is being peddled while compensation has been stagnant.

        http://www.kermitrose.com/jgoMoney.html
        For graphs of price indices from BLS.

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  5. The global corporations, owned by the ‘Davos billionaires’, have been getting richer and stronger vs. the nation states, and TPP is their greatest power grab yet. Everything that lowered their profit could be sued by them in special investor-state dispute settlement (ISDS) tribunals placed above the individual nations, and staffed by the same off duty international corporate lawyers who negotiated TPP in secret.

    http://www.nytimes.com/2015/03/26/business/trans-pacific-partnership-seen-as-door-for-foreign-suits-against-us.html

    ‘[TPP] would allow foreign corporations to sue the United States government for actions that undermine their investment “expectations” and hurt their business, according to a classified document… [and] challenge regulations, rules, government actions and court rulings — federal, state or local — before tribunals organized under the World Bank or the United Nations.’

    We’d get a global race to the bottom, with any kind of protection – environment, health, workers – subject to being sued out of existence by ‘globocorps.’

    Australia has been making a strong effort to reduce smoking by mandating that cigarettes be sold in plain packaging. But under a free trade treaty that has ISDS provisions they are being sued. Corporate cigarette profits come before their citizens’ health.

    [wikipedia – Phillip Morris International]

    ‘In June 2011, Philip Morris International announced it was using ISDS provisions in the Australia-Hong Kong Bilateral Investment treaty (BIT) to demand compensation for Australia’s plain cigarette packaging anti-smoking legislation. It was one of several tobacco companies to launch legal action against the Australian Government.’

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  6. Thanks for the posting, Norm. I hope that we get to read the bill before they pass the bill.

    I am truly concerned about this being like TN visas only from the Pacific Rim and South Asia countries. If there are an unlimited number of visas from trade partners on top of the current/proposed H-1Bs, H-4 EADs and L-1s, there is no hope for an American worker in STEM , business or medical fields expecting to make enough to pay school loans and live a middle class lifestyle supporting a family.

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  7. > 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).

    I’ve always thought that the length of these trade treaties is a huge problem. If “free trade” is such a simple concept, why does it take thousands of pages to express it? I’ve heard that any representative reading the current treaty is not allowed to take notes. Are they allowed to memorize the number of pages in the treaty? Or is that also classified?

    I worked on a project once where we had to review a document with thousands of specs in a very short period, hardly enough to scan all of the specs, much less to read and evaluate them. I had time to find a few with problems and I documented them expecting some pushback. In fact, every spec that I pointed to evaporated from the document like a drop of water on a hot grill. However, the other 99.99% of the specs marched through largely unread. I have to wonder if that is the same approach in these multi-thousand page treaties. A few of the provisions may be discussed and modified in the process but the great majority will pass through unmolested. It would be interesting if it were possible to determine how much of the treaty is read and by how many people. I suspect that the number would be shockingly low with much of the treaty being read closely only by those who draft it.

    I’ve also noticed how the benefits in these treaties and laws always seem to follow the same pattern. The quickest, most assured benefits go to the corporations and those lobbyists involved in drafting it with long-term, highly-debatable benefits supposedly going to workers in the very long term. Funny how we never get a treaty or related law where these short-term and supposed long-term benefits are reversed.

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  8. According to ‘The Hill’, only 3 senators have accessed the secret room with the draft TPP – one was Elizabeth Warren, the leader of the liberal opposition. They would have to make it more accessible to the senators’ economic – trade staff to have a realistic chance of them getting familiar with it – congress people spend most of their time fund raising, for example by promising to vote for TPP. The length alone makes for a good example of ‘hide in plain sight.’

    —-

    The plan was to make the International Tribunal – ISDS – stuff public – four years after passing TPP! Though I doubt they could do that.

    http://www.nytimes.com/2015/03/26/business/trans-pacific-partnership-seen-as-door-for-foreign-suits-against-us.html

    ‘The chapter in the draft of the trade deal, dated Jan. 20, 2015, and obtained by The New York Times in collaboration with the group WikiLeaks, is certain to kindle opposition from both the political left and the right. The sensitivity of the issue is reflected in the fact that the cover mandates that the chapter not be declassified until four years after the Trans-Pacific Partnership comes into force or trade negotiations end, should the agreement fail.’

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    • To my knowledge, Obama has given no justification for all this secrecy. I wonder if he realized, as an idealistic community worker in Chicago years ago, that he eventually would take sinister actions like this.

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      • Russel Tice, one of the NSA whistleblowers, claims that during the early 2000s he was tasked with tapping the junior Senator Obama’s phone for the VPs office. So…

        The three trade deals are basically an attempt to roll back all of the positive changes of the last few decades and play different groups off against one another in a race to the bottom on wages. We should be looking at the whole situation differently. Its not in the best interests of anybody except themselves what they are doing. There are three trade deals. TISA’s main problems are its attack on public services all around the world, including healthcare, education water, transit, housing, basically, they force privatization. Also they create this huge push towards global temping, de-skilling and de-professionalizing of public services, so they can be monetized. This is totally the wrong thing to be doing right now. The bar to jobs is rising, we need to make education free and encourage life long learning, make it fun and easy. De-emphasize the role of money in survival. Because what’s really happening is the world is succeeding in saving labor so that people really do not have to work as much any more. We should have more time. Their race to the bottom will literally kill our people.

        This is an interesting document, for its many perspectives. http://www.cuts-geneva.org/pacteac/images/Documents/EAC%20Forum/Forum17/EAC%20Geneva%20Forum-%20WTO%20Note%2017.pdf

        Excuse me if I posted it before. Its late and I’m tired. A great deal of stuff can be found if you search on GATS related phrases like “The fourth mode of supply” TISA is basically GATS. As the Doha Round collapsed they were clearly not ready to give up their scheme jist because it was failing, and was alienating the rest of the world, so, now we have TISA.

        WTO-GATS truly is “the gift that keeps on giving” in the bad policy sense.

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  9. Democrat Chris Dodd was head of the Senate banking committee and ‘close to the financial industry’ which heavily funded him. He retired after a series of scandals – he was a ‘friend of Angelo’ [VIP mortgages from later bankrupt Countrywide Financial], and he defended the strength of Fannie Mae and Freddie Mac, which cost taxpayers as much as $200 billion in bailout. He told everyone he ‘wasn’t going to lobby’. Now he’s making $3 million a year at the Motion Picture Association of America, and they have extra copyright protections written into TPP – that’s how the game works, and everyone in Washington wants to play.

    http://www.project-syndicate.org/print/tpp-latin-america-innovation-by-andres-velasco-2015-05

    ‘For copyrights, the US is demanding 95 years of protection after publication, or 120 years after creation, whereas TRIPS provides for 50 years…’

    There are also provisions in TPP that would increase penalties for sharing copyrighted material on the internet.

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  10. ” One of the various goals claimed by TPP proponents has been that TPP is needed as a counterweight to China for influence in Asia.”
    TPP proponents are not interested in a counterweight to China. They even consider China a posssible future member of TPP. The more the merrier acording to economic globalists. The bigger the expanded market is, the harder it falls.

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  11. Exec “agreements” and treaties can be over-turned with a simple-majority US statute. No big deal… literally.

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