Specifically, TiSA changes (and essentially eliminates) the restrictions that prevent companies from importing foreign workers to replace Americans through certain visa programs. To quote our frenemies at the Economic Policy Institute:
Proposed draft Article 5, Section 1 then requires that “Each Party shall take market access and national treatment commitments for intra-corporate transferees, business visitors and categories delinked from commercial presence: contractual service suppliers and independent professionals.”It’s important to note these changes do not mention the H1-B and other H visa classifications, which are already being abused. What the EPI authors were referring to are “non-immigrant visas” (NIV).
Section 3 gets more specific about the sectors of the economy where member states will have to allow access to intra-corporate transferees, business visitors, contractual service suppliers, and independent professionals…
In the United States, this means the L-1 intra-company transferee, B-1 business visitor visa programs, and any other applicable visa programs could be used to permit temporary employees from abroad to work in the United States, and no economic needs tests (i.e., testing the labor market) could ever be imposed by Congress.
To translate, that means that foreign firms would not be required to advertise jobs to U.S. workers, or to hire U.S. workers if they were equally or better qualified for job openings in their own country. (It should be noted that the L-1 is already restricted in this way, as a result of the United States’ commitments under the General Agreement on Trade and Tariffs (GATS).)
These visa programs are already under-regulated and abused by employers, but since neither the L-1 nor the B-1 visa program is numerically limited by law, this means that potentially hundreds of thousands of workers could enter the United States every year to work in these 38 sectors.
[TiSA: A Secret Trade Agreement That Will Usurp America’s Authority to Make Immigration Policy, by Daniel Costa and Ron Hira, Economic Policy Institute (EPI), June 11, 2015. Emphasis added].
NIVs are visas for aliens who seek to enter the United States for some other lawful purpose other than living permanently in the United States. Those seeking to live permanently in United States apply for immigrant visas (IV), asylum, and refugee status.
NIV holders are supposed to stay for a limited amount of time and return to what is called an unrelinquished residence abroad. Put simply, the alien lives outside the United States and intends to return home after whatever temporary business in the United States is finished. And needless to say, there’s a time limit.
There is already a bewildering alphabet soup of NIV categories covering all sorts of activities. But TISA will primarily affect the visa categories B-1, H, L, and other miscellaneous employment NIVs. And what TISA will do is open up those visas to essentially unlimited use by aliens.
The strictures on NIVs were once closely enforced, especially by the Bush Administration following the 9/11 attacks. Entrants on the B-1 visa for example, which is usually used for business, were limited to one month in the United States.
However, matters were complicated by the Visa Waiver Program (VWP), implemented by Congress in the 1980s with the aim of encouraging tourism and short-term business visits. The VWP allowed aliens from specified countries to enter the United States for business or pleasure for a three months statuary admission period, and most of these “specified” countries were advanced Western nations.
Companies from Japan, one of the VWP nations, soon developed a reputation for skirting program’s requirements and using it as a substitute for the more highly regulated L-1 visa and H-1B visas specified for employers.
In the mid-1990s, the then Immigration and Naturalization Service (INS) began intercepting Japanese business visitors at the Portland International Airport who were doing just that—no surprise, considering the highly ethnocentric Japanese business culture and the country’s reluctance to hire American workers. [See INS makes bad press for Oregon in Japan, By Richard Read, The Oregonian , April 27, 2000, and South Korean recalls ordeal in the hands of Portland INS, By Richard Read,Oregonian, April 25, 2000]
The response from the Clinton Administration and then the Bush Administration: they replaced INS management at the Portland International Airport and brought in Immigration Inspectors from the San Francisco International Airport. These new officials would then “stamp in” all the Japanese business visitors using the VWP as an illegal substitute for an L or H visas.
The problem was solved by not dealing with the problem.
Once the Obama Regime was in power, that Portland precedent was expanded. Enforcement of immigration laws with regard to the VWP or the B-1 business visa requirements were essentially ended. As part of this, the Administration instructed the officials who managed Ports-of-Entry where aliens are inspected and admitted to change the regulations on the period of admission for B-1 visa holders from one month to six months.
Of course, there’s no need for any “temporary” business visitor to be in the United States for six months. In this writer’s experience at a POE, most business visitors are in the United States for a period of less than two weeks. Only someone employed illegally in the United States needs more than a month.
And, as you might guess, employers were quick to exploit the new loophole. Other employers were soon to exploit the Obama Regime Administrative Amnesty for misuse of the NIV. For example, Boeing and Infosys both used “temporary business visitors” as a de facto substitute for H1-B visas.
Infosys, when caught, was forced to pay a large settlement for its policy of replacing American tech workers with Indians. However, as part of that settlement, the federal government agreed
Boeing was essentially replacing its American engineers with Russians. When caught, it lobbied for the policy to be changed.
Now, it appears that lobbying is paying off. Just as Disney is driving out its American workers, companies like Boeing, Infosys, and others will now have a far easier path under TISA to bring in foreign workers. The displacement of the American worker will only accelerate.
But while TISA is a catastrophe, it’s nothing especially new. It’s simply a confirmation of what already exists.
The only way to stop the nonsense is to have an immigration moratorium. It would be nice to get some British and Dutch immigrants again, but it’s not worth the risk of keeping our immigration bureaucracy in business.
The blogger Federale (Email him) is a 4th generation Californian and a veteran of federal law enforcement, including service in the legacy Immigration and Naturalization Service, the Department of Homeland Security, and other federal law enforcement agencies.
Federale's opinions do not represent those of the Department of Homeland Security or the federal government, and are an exercise of rights protected by the 1st Amendment to the Constitution of the United States.