India US BIT-Why Visa Provisions Were Dropped From Model BIT?

One wonders why the Model BIT has no visa provisions?  In other words why there is no language which will authorize treaty visas in Model BIT?  We knew the answer but recent correspondence with one of the leading expert attorney brought back possible reason to our notice once again.

The reason (in their language) is that Senate will not consider any trade agreements with visa provisions.

This is really unfortunate.  For two reasons:

1. This interpretation of BIT is incorrect as it is NOT a trade agreement.

2. Even if it is correct, people have given up (due to political climate?) pursuing Senate for worthy cause-which is even more disturbing.

The bureaucrat who dropped the language from Model BIT addressing visas is not the only one with misunderstanding!!!

It is our duty to dispel this misunderstanding.

First BIT is clearly NOT a trade agreement.  Trade agreements are known as FTA (Free Trade Agreements).

As respected attorney Gary Chodorow points out:

“Regardless of the merits of that argument as it applies to FTAs, it doesn’t apply to investor visa provisions in BITs. First, Congress has already spoken on the issue of treaty-investor visas by enacting section 101(a)(15)(E) of the Act, which provides that DOS can issue E-2 treaty trader visas to persons entering the U.S. “under and in pursuance of the provisions of” a qualifying treaty. This provision implicitly authorizes the executive to negotiate such treaties. The statute would be meaningless if the executive couldn’t negotiate such treaties. Second, as explained above, BITs don’t require implementing legislation, so the specific criticisms about the administration negotiating FTAs that require “substantive changes to U.S. law” simply don’t apply. Third, fast-track authority only applies to trade agreements, not BITs, so concerns about fast-track limits on debate and amendments don’t apply.

Attorney Chodorow also points out that: ” Treaty-Investor Visas Are Not Politically Controversial”. This is due to the fact that these visas have very strict requirements.

It is our wish that US Chamber of Commerce, AILA, Immigration Attorneys, US IBC are not misunderstanding the facts about BIT.  Because if they misunderstand, they will be reluctant to support visa provisions in Model BIT or India US BIT.  And that will be really unfortunate for USA and India and the whole world and free market economy!



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