It appears that the loopholes and gaps allowed in CAFTA will open up the entire country to immigrants from all Central America-- TXTibbs- if/when this passes, there won't be hundreds a nite it will be thousands- and with the way its written we may not be able to do anything about it :? ....
With these so called crossborder trade in services exemptions-- Which border do you think they will want to cross to work in??? :???: :?
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June 30, 2005
The Honorable Rob Portman
U.S. Trade Representative
600 Seventeenth Street NW, Room 215
Washington, DC 20508
Dear Representative Portman,
I am writing in reference to my concerns about provisions of the Central American Free Trade Agreement. As negotiated, I am concerned that CAFTA will do more than just phase out tariffs and open new markets.
Buried among its nearly 1,000 pages, the agreement contains an expansive definition of "cross-border trade in services" that I believe will effectively give people from El Salvador, Honduras, Guatemala, Costa Rica, and the Dominican Republic a de facto right to work in the United States – provided they are employees of a foreign service sector company. In fact, after reading these provisions I am beginning to believe that CAFTA is more of an immigration accord than it is a trade agreement.
I realize that there is language in Chapter 11 that stipulates that the agreement imposes no "obligation on a party with respect to a national seeking access to its employment market." And while that may be technically true with regard to a foreign individual, the agreement does vest foreign employers with certain rights, and one would presume that these foreign employers will have foreign employees. It is this latter language in the agreement with which I have grave concerns.
These immigration provisions are cloaked in the "service agreement" section, and are often referred to in trade jargon as "Mode 4 service delivery" provisions. Chapter 11.14 (c) of the agreement, for example, reads "Cross-border trade in services or cross-border supply of services means the supply of a service…by a national of a party in the territory of another party." Chapter 11.8.2 goes on to stipulate that parties to the agreement must take care to ensure that "measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services," and that domestic regulations are, "not in themselves a restriction on the supply of the service."
Mr. Portman, the way I read these sections, a foreign company could challenge our immigration laws under CAFTA as restricting their rights under Chapter 11. They could argue that these laws impede their ability to access the U.S. service sector, and the international tribunals might very well agree – ruling that our caps on non-immigrant visas or even the visa requirements themselves are 'unnecessary barriers to trade' that act as 'restrictions on the supply of a service.' Such a ruling could place Congress in a position of having to change our immigration laws, or face trade sanctions.
I also am aware of the "side letter" signed by the member countries "clarifying" that nothing in the agreement should be construed to require any member country to change its immigration laws – but the letter is not a part of the underlying agreement, and it will not be taken into consideration by the tribunals which will be "adjudicating" challenges based only on the agreement itself. Numerous "side arrangements" have been made with various Members in return for support for NAFTA, TPA, and even the Singapore and Chile FTA's. The vast majority of these promises, however, have been broken or invalidated under the terms of the agreements.
Mr. Portman, what concerns me more than the decision of your predecessor to include this language in CAFTA is the prospect that CAFTA's service agreement provisions might be a template for future multi-lateral trade agreements. As you may know, I attempted to offer an amendment to the Commerce, Science, Justice, State Appropriations bill that would have restricted the use of funds to negotiate any future trade agreement that would "…increase any limitation on the number of aliens authorized to enter the United States as non-immigrant." The Chairman of the Ways and Means Committee vehemently opposed my amendment during floor debate because – in his words – "We are currently in delicate negotiations in the World Trade Organization on market access, and one of the provisions is the question of temporary movement of legal aliens…" I sincerely hope this is not true.
I hope that you can help me understand both why these provisions were included, and whether or not future bilateral and multilateral agreements negotiated by USTR will continue to include these kinds of immigration provisions as the Chairman of the Ways and Means Committee indicated they may. It is my hope that we are not headed down that road, and I trust that under your leadership, USTR will not continue to move in this direction.
As you are a former Member, I know that you understand the importance of protecting Congress' exclusive prerogative to regulate immigration policy. I hope we can work together to ensure that this authority is not diluted further in the name of free trade.
Thank you in advance for your assistance, and I look forward to hearing from you.
Sincerely,
Tom Tancredo, M.C.