How a Temporary Visa Works Under the United States-Jordan Free Trade Agreement

visa.

For the purpose of article 8, the U.S rendered nationals of Jordan as eligible for treaty trader (E-1) and treaty investor (E-2) visas. This article seems to imply as if the U.S gave Jordanian nationals special or privileged visa treatment. However, Jordanian national individuals will not be exempt from acquiring a visa for entry into the U.S. Rather, Jordanian national must appear at the U.S. embassy or consulate in Jordan and be inspected by a consular officer and acquire a visa stamp before entering the U.S. for inspection by an immigration officer.

Two-way trade between the U.S. and Jordan is up substantially since the free trade agreement between the two countries took effect, but a provision enabling temporary entry of Jordanian nationals into the U.S. has seen little use. For the period 2002-2010, there were no trader or investor visas issued to Jordanian nationals under the visa provisions of the FTA. This state of affair could be attributed to lack of awareness or understanding on the part of Jordan’s nationals as to E category of visas, the difficulty traders or investors face in meeting the thresholds of «substantial trade» or «substantial amount of capital» for investment, or difficulty of proving intent to return back to Jordan. Not any trader or investor can meet these thresholds. The onerous of article 8 of the FTA might explain the nonexistent of visas under the FTA so far even though U.S regulations allow for consideration being given to any conditions in the country of which the alien is a national which may affect the alien’s ability to carry on such substantial trade.

On the other hand, one year after NAFTA came into force, 220 accountants from the U.S, but none from Mexico, entered Canada independently, and 62 U.S accountants entered as intra-company employees, 965 engineers from the U.S and 7 from Mexico, and 224 American intra-company engineers and 3 Mexicans were issued entry documents, 34 lawyers independently and 9 as intra-company employees came from the U.S.

Although national security, outsourcing, and immigration concerns are issues that need to be addressed, the U.S. must rationally weigh the costs and benefits of limiting movement of individuals. Increasing temporary worker mobility, and for that matter trade in general, has greater potential to benefit trade development, mutual understanding, peace, and tolerance. Failure to consider movement for individuals as a vital component of economic infrastructure and foreign policy will seriously affect economic growth and stability.

US-Jordan FTA Cross-Border Provision of Services

Historically, most trade agreements focused on reducing tariffs and non-tariff barriers on goods as they cross international borders. However, the services sector now accounts for about seventy five percent of employment activity in industrialized countries like the U.S. Therefore, current trade agreements deal with trade in services.

While WTO achieved major progress in liberalizing the trade in goods, it later has begun to liberalize trade in services. The WTO’s General Agreement on Trade in Services (GATS) recognizes several modes of supplying services with «Mode 4» addressing the temporary cross-border movement of business and professional workers. The US-JO FTA goes beyond the primary focus on goods and it deals with a new frontier, liberalization of trade in services. Such liberalization is important for freer flow of labor over national borders.

The US-JO FTA sets out several service obligations. The FTA requires each party to accord to service providers of another party treatment no less favorable than that it accords, in like circumstances, to its own service providers. The idea of this provision is nondiscrimination whereby Jordan must treat service provider from the U.S. the same way that Jordan treats service provider from Jordan. The other key US-JO FTA obligation is the most-favored nation obligation whereby each party is to accord to service providers of another party treatment no less favorable than that it accords, in like circumstances, to service providers of any other Party or of a non-Party. For example, if Jordan treats a service provider from Iraq more favorably than it treats a service provider from the U.S., the treatment provided to the Iraqi must be accorded to an American service provider.

The US-JO FTA created obligations specifically targeting professional services. Professional services, unlike most service providers who wish to provide their services in the U.S., they need permission to enter the jurisdiction from the U.S. immigration authorities. Movement of natural persons, professionals, is of particular importance to Jordan. However, temporary entry into the U.S. is limited to executives, managers, or specialists of a Jordanian company that has a physical presence in the U.S. in the form of branch, subsidiary, or affiliate. Such entry is limited to three years with a one-time two years extension.

The U.S. commitment, while covering the intra-corporate movement of senior personnel, does not extend to other categories of workers. Low-skilled workers seeking entry into the U.S. will not be admitted under the US-JO FTA. Both the U.S. and Jordan would benefit more from relaxed restrictions on unskilled labor rather than on skilled labor. Jordan has primarily unskilled labor to supply while the U.S. has primarily unskilled jobs to offer.

Under the US-JO FTA, a corporate employee cannot move to the U.S. unless his company already maintains commercial presence in the U.S. In other words, the FTA requires a Jordanian service providers to establish or maintain a representative office or any form of enterprise in the U.S. as a condition for the cross-border provision of a service. The «commercial presence» requirement prohibited if not stopped stop temporary movement of workers between the U.S. and Jordan. The US-JO FTA should have prohibited the parties from imposing local presence requirements on cross-border service providers.

The U.S. opted for skilled workers and commercial presence in the FTA perhaps out of concerns over education, certification, professional accreditation, and licensing in Jordan. For example, an engineer who wants to build a bridge in the U.S. is going to need two pieces of paper; in addition to a temporary visa permit, they also need to be licensed by the U.S. professional regulatory body. In order to increase worker mobility, the U.S. and Jordan could have concluded mutual recognition agreements and harmonized professional standards in certain sectors. Additionally, the U.S. and Jordan could have placed more emphasis on education and experience rather on passing exams or interviews. For example, a Jordanian engineer can obtain a temporary license to practice in the U.S. if he has a minimum of twelve years of acceptable engineering experience.

Labor Mobility in the North American Free Trade Agreement

Compared with the modest language of article 8 of the US-JO FTA, NAFTA dedicates a whole chapter-chapter 16- dedicated to temporary entry for business persons. The purpose of chapter 16 of NAFTA is to facilitate temporary entry of business persons. NAFTA parties endeavor to develop and adopt common criteria and definitions for the implementation of chapter 16. Moreover, each NAFTA party is committed to furnish the other parties with materials that enable them to be acquainted with chapter 16. To facilitate the movement of persons across the borders, each NAFTA party is committed to provide explanatory material regarding the requirements for temporary entry under chapter 16 in such a manner as will enable business persons of the other parties to become acquainted with them. On the other hand, the US-JO FTA is absent of such a commitment. Hence, Jordanian nationals might not be able to determine the meanings of critical terms such as «substantial trade» or «investment».

According to NAFTA, any dispute regarding refusal to grant temporary entry of business persons is subject to the dispute settlement mechanism. Chapter 16 of NAFTA created four categories of business persons who are citizens of a member country to be granted temporary entry. These four basic categories are: business visitors, traders and investors, intra-company transferees, and professionals. Business visitors who are engaged in international business activities may enter a NAFTA member country in B-1 status for the purposes of conducting research and design (technical, scientific, and statistical researchers), growth, manufacture and production (harvester owner supervising a harvesting crew, purchasing and production management personnel), marketing (marketing researchers and analysts, trade fair and promotional personnel).

NAFTA also provides E-1 and E-2 visas for traders and investors. The conditions for granting visa under this category are the same as visas granted under article 8 of the US-JO FTA. However, NAFTA mandates that no NAFTA party may impose or maintain any numerical restriction relating to temporary entry for traders or investors. In contrast, the U.S may impose numerical limits on the number of visa traders or investors under the US-JO FTA.

Another distinction between NAFTA and the US-JO FTA under the treaty trader and investor provisions is that a Canadian or Mexican business person may be denied E visa if there is a labor dispute in the Canadian or Mexican’s occupational classification in progress where the Canadian or Mexican will be employed and their entry may adversely affect the settlement of the labor dispute or the employment of any person involved in the dispute. In other words, the requirements for E-1 and E-2 visas under NAFTA are the same as they in the US-JO FTA, with the exception that entry may be denied when it would adversely affect the settlement of a labor dispute in the US. This provision is only