이민법을 통한 외국 서비스 공급자 진출 규제와 GATS ― 미국의 Employ American Workers Act를 중심으로 ―

International law recognizes immigration issues as one of the classic examples of those issues falling under the domestic jurisdiction in which a country enjoys almost full discretion in adopting regulation unless the particular sector has been internationalized through treaties with other countries. At the same time, immigration regulation of one country has potential to affect international trade in services in a significant manner because the country can virtually limit or restrict services trade by not issuing sufficient visas for service providers from other countries and preventing them from entering its territory to provide their services. So, it is always controversial and difficult to determine whether a particular immigration measure of a country is a good faith immigration regulation which is allowed under international law or a disguised services measure the whole purpose of which is to circumvent otherwise applicable norms of the GATS. The United States recently introduced a legislation called “Employ American Workers Act,” which encourages U.S. employers to hire U.S. nationals over foreign service providers by making it more difficult for them to apply for a working visa for their prospective foreign service providers. As only a handful of states including Korea have taken up the bulk of the working visas in the United States over the years, professionals from these countries are more negatively affected by this new regulation, in a manner which is discriminatory compared to those from other countries. Particularly, professionals in the financial services sector from these countries are more negatively affected than any other sector. As the United States has not committed itself to the Mode 4 of the service trade in its Schedules of Specific Commitments submitted to the WTO, which is directly related to the issuance of visa for foreign service providers, violation of Article 16 of the GATS (market access) and Article 17 of the GATS (national treatment) is probably not implicated in this respect. Nonetheless, the virtual discriminatory treatment of service providers from the most frequent working visa application countries including Korea may trigger possible violation of Article 2 of the GATS which provides for MFN treatment. Such treatment may also create unfair business practices which negatively affect competition in the market. This may implicate the obligation of the United States under Article 9 of the GATS. As many countries are contemplating introducing immigration related regulation in the aftermath of financial crisis in 2008, Korea should remain vigilant of the development in this field bearing in mind possible legal issues under the WTO, most notably the GATS