Questioning US Immigration Law Compliance with Treaties for Trade and Investment

Abstract

Current US immigration law appears to be in widespread violation of bilateral international agreements on trade and investment. The US is party to a number of treaties for investment or trade that include terms on issuing temporary immigration visas, trader visas (E-1 visa) or investor visas (E-2 visa). These treaties include the older Friendship, Commerce and Navigation treaties (FCNs); Bilateral Investment Treaties (BITs) and the more modern Free-Trade Agreements (FTAs). Rather than apply the immigration terms under each treaty, US immigration law imposes its own requirements, which in many cases are at odds with the terms under the treaties. This paper compares the various treaties to which the US is party and identifies their differences. It then contrasts the practice that the treaties require with US immigration law, further identifying where US immigration law may not be in compliance with the treaties. This practice is particularly problematic because some of the treaties for investment or trade include complaint mechanisms. Certainly a state would have grounds for complaining that the US is not living up to its treaty obligations, but there may be many reasons why a state party would not want to disturb its bilateral relationship by making such a complaint. However, many of these treaties also include a right for individuals or coporations to bring their own complaints directly against the US under mandatory investment dispute settlement. Thus, current US immigration law on treaty traders and investors is not only in violation of the underlying treaties, but the violations present a real risk of enforcement.