How Temporary Visa Works Under Bilateral Trade Agreements and in Particular the United States-Jordan Free Trade Agreement

Come and Go? How Temporary Visa Works Under Bilateral Trade Agreements and in Particular the United States-Jordan Free Trade Agreement

Bashar Malkawi*

I. Introduction

The United States (U.S.) and Jordan launched negotiations for a free trade agreement in 2000. Several reasons explain the U.S. desire to negotiate a free trade agreement with Jordan. The failed WTO Ministerial Conference in 1999 led U.S. trade officials to analyze the possibilities for a free trade agreement that would include certain provisions that are resisted at the multilateral trading level. Moreover, the U.S. and Jordan had already signed a trade and investment framework in 1999, which is usually a precursor for a FTA.Economically, U.S. exports to Jordan would increase as a result of the FTA while Jordanian imports to the U.S. would not threaten U.S. industries. The FTA could also spur Jordan's economic growth, allowing for the possibility that it would become less dependant on foreign aid. Moreover, the U.S. needed to negotiate a FTA because it was losing ground to the EC which, which had concluded association agreements with several Mediterranean countries By sig ning the FTA, the U.S. could catch up to the EC with respect to economic dominance in Arab countries.

On October 24, 2000, the United States-Jordan Free Trade Agreement (US-JO FTA) was signed in a record time.[The US-JO FTA was the first FTA to be concluded with an Arab country. It was also the first FTA to be concluded in the absence of fast track authority, which had lapsed since 1994. Without fast track authority, Congress could have made amendments to the FTA, voted it down, delayed its passage, and added amendment.

The US-JO FTA includes a preamble, nineteen articles, three annexes, joint statements, memorandums of understanding, and side letters. In addition to the interesting articles on labor and environment, the US-JO FTA provides the opportunity for Jordanian nationals to come to the U.S. to make investments and participate in trade.Under certain conditions, Jordanian nationals can enter the U.S. to render professional services.

The purpose of this article is to examine in detail article 8 of the US-JO FTA which relates to entry of nationals of one party into the territory of the other. The article starts by providing a brief background of the negotiation and conclusion of the US-JO FTA. Then, the article analyzes in detail the specific provision related to temporary entry of nationals. The article draws a comparison between US-JO FTA with the North American Free Trade Agreement (NAFTA) and the more recent trade agreements between the U.S., Oman, Bahrain, and Morocco. Finally, the article concludes by arguing that the US-JO FTA is theoretically designed to permit temporary entry, without intent to establish permanent residence, of business visitors, investors, intra-company transferees, and professionals. At the same time, the U.S. has retained its ability to ensure border security and to protect its domestic labor force. The US-JO FTA intended to export goods but not people.

II. Treaty-Trader and Treaty-Investor Visas under the U.S.-Jordan FTA

The US-JO FTA permits entry of nationals of one party in the territory of the otherFrom the outset, it is necessary to distinguish between migration and the ability of Jordanians to enter into the U.S. to make investments and participate in trade. Jordanian nationals are not allowed permanent resident status, but are only given the opportunity to acquire a visa on a temporary basis or "non-immigrant" status.This status requires that the visa beneficiary return to Jordan after his temporary stay expires.

The US-JO FTA allows nationals of Jordan to enter into the U.S. to carry solely "substantial trade", including trade in services and technology. The yardstick in the FTA is "substantial trade". Article 8 does not specify what constitutes "substantial trade". For example, should a Jordanian trader be major exporter to the U.S to be eligible for entry? Or the U.S is obliged, subject to its laws on entry, to allow Jordan's traders entry into its territory for attendin g a trade fair or partnering with U.S firms.

In effect, the language of article 8 of the US-JO FTA is drawn from the Immigration and Naturalization Service (INS), now known as Bureau of Citizenship and Immigration Service within the Department of Homeland Security,[ and the U.S Department of State regulations. The Department of State regulations define a treaty trader as an alien, classifiable as a nonimmigrant treaty trader (E-1), who will be in the U.S solely to carry on trade of a "substantial nature" either on the alien's behalf or as an employee of a foreign person or organization engaged in trade, "principally" between the U.S and the foreign state of which the alien is a national.This language is identical to the language of article 8.1 of the US-JO FTA. The regulations of the Department of State reads that 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. Moreover, the alien must prove that he i ntends to depart the U.S after the termination of E-1 status