The H-1B Visa and US GATS Market Access Commitments: Options and Strategies for India

Abstract

Indian IT firms and professionals have been one of the primary beneficiaries of the US H-1B visa. However, the new US ‘buy American, hire American’ policy and the consequent suspension of the H-1B visa have resulted in India’s claims that the US measures are discriminatory and not in compliance with various provisions of the World Trade Organization’s (WTO) General Agreement on Trade in Services (GATS). The present article aims to assess the consistency of the US measures on H-1B category visa in the context of its specific commitments under Mode 4 of GATS and explore India’s options in finding a suitable solution. Our analysis posits that India’s concerns are well-founded, and the US measures at issue may have direct implications on its commitment under the GATS Schedule of Commitments. At the same time, for India, the option of the invocation of the WTO redressal process to force the well-guarded discretionary sovereign power associated with entry visas could be counterproductive and finding a mutually beneficial solution seems to be the way forward. The article will also help understand and explore India’s options in dealing with the highly sensitive area of entry for foreign nationals that falls under the domain of sovereign prerogative of a State.