WT/DS503/1  
S/L/410  
 
8 March 2016  
(16-1342)  Page: 1/3  
  Original: English  
 
 UNITED STATES – MEASURES CO NCERNING NON-IMMIGRANT VISAS 
REQUEST FOR CONSULTATIONS BY INDIA 
The following communication, dated 3 March 2016, fr om the delegation of India to the delegation 
of the United States and to the Chairperson of the Dispute Settlement Body, is circulated in 
accordance with Article 4.4 of the DSU.  
_______________ 
  Upon instructions from my authorities, I hereby wish to convey the request of the Government of 
India for consultations with the Government of the United States of America pursuant to Article 1 
and Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
("DSU"), and Article XXIII  of the General Agreement on Trade in Services  ("GATS"), with respect 
to but not limited to the following measures of the United States of America: (1) measures 
imposing increased fees on certain applicants for L-1 and H-1B categories of non-immigrant visas; and (2) measures relating to numerical commitment for H-1B visas. These measures are described 
in greater detail below.  
 I Measures relating to Fees for L-1 and H-IB Visas  
1. The Consolidated Appropriations Act, 2016 (Public Law 114-113) (hereinafter referred to as 
the "2016 Act") requires applicants of non-immigran t visas in the L-1 and H-1B visa categories, to 
pay higher filing fees and fraud prevention and detection fees under certain specified 
circumstances. This measure was brought into effect on 18 December 2015, under Division O of 
the 2016 Act, which, under Title IV, titled the "James Zadroga 9/11 Victim Compensation Fund 
Reauthorization Act", introduced amendments to the Air Transportation Safety and System 
Stabilization Act (49 U.S.C. 40101), by adding section 411, titled "9-11 Response and Biometric 
Entry Fee". This amendment mandates that effe ctive from December 18, 2015, and ending on 
30 September 2025, notwithstanding the provisio ns of the Immigration and Nationality Act 
(8 U.S.C. 1351), or any other provision of law, the combined filing fee an d fraud prevention and 
detection fee required to be submitted shall be as follows:  
 
(a) For applications for admission, as well as for extension of the visa status, as a 
non-immigrant under section 101(a)(15)(L) of the Immigration and Nationality Act
1 
(hereinafter the "INA"), the combined filing f ee and fraud prevention and detection fee, shall 
be increased by USD 4,500 for applicants that employ 50 or more employees in the United 
States, if more than 50 percent of the app licant’s employees are non-immigrants admitted 
pursuant to section 101(a)(15)(L) or section 101(a)(15)(H)(i)(b) of the INA2; and 
 (b) For applications for admission, as well as  for extension of the visa status, as a non-
immigrant under section 101(a)(15)(H)(i)(b) of the INA, the combined filing fee and fraud 
prevention and detection fee, shall be increa sed by USD 4,000 for applicants that employ 
50 or more employees in the United States, if more than 50 percent of the applicant’s 
employees are non-immigrants admitted pursuant to section 101(a)(15)(H)(i)(b) or section 
101(a)(15)(L) of the INA. 
 
                                               
1 8 U.S.C. section 1101(a)(15)(L) 
2 8 U.S.C. section 1101(a)(15)(H)(i)(b)   WT/DS503/1 • S/L/410 
 
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  2. The afore-mentioned measures under Public Law 114-113 were preceded by measures 
under Section 402 of the Emergency Border Security Supplemental Appropriations Act, 2010 (Public Law 111-230), which were valid for the period between 13 August 2010 and 30 September 2015, and required applicants of no n-immigrant visas in the L-1 and H-1B visa 
categories, to pay higher filing fees and fraud prevention and detection fees under the following 
circumstances:  
(a) For applications for admission as a non-immigrant under section 101(a)(15)(L) of the 
INA, the fees were increased by an additional USD 2,250 for applicants that employ 50 or more employees in the United States, if more than 50 percent of the applicant’s employees are 
non-immigrants admitted pursuant to section 101(a)(15)(L) or section 101(a)(15)(H(i)(b) of 
the INA; and 
 (b) For applications for admission as a non-immigrant under section 101(a)(15(H(i)(b) of 
the INA, the fees were increased by an additi onal USD 2,000 for applicants that employ 50 or 
more employees in the United States, if more than 50 percent of the applicant’s employees are 
non-immigrants admitted pursuant to section 101(a)(15)(H(i)(b) or section 101(a)(15)(L) of 
the INA. 
 3. Both sets of measures, under Public Law 111-230 and Public Law 114-113, impose higher fees on applicants for H1B and L1 visas, based on an assessment of nationality of their workforce.  
The main difference is that the current measures under Public Law 114-113, has increased the 
earlier fees under Public Law 111-230 by two-fold, and makes the enhanced fees applicable for extension of the visa status as well. 
 
4. The current measures, as with the earlier measures, appear to: (i) be inconsistent with the terms, limitations and conditions agreed to and specified by the United States in its Schedule of 
Specific Commitments under the GATS, (ii) accord to juridical persons of India having a 
commercial presence in the United States treatment that is less favourable than that accorded to 
juridical persons of the United States engaged in providing like services in sectors such as the Computer and Related Services sector with respect to which the United States has taken 
commitments in its Schedule of Specific Commitm ents, and (iii) affect the movement of natural 
persons seeking to supply services in a manner that is inconsistent with the United States' commitments in its Schedule of Specific Commitmen ts. These measures also appear to nullify or 
impair the benefits accruing to India directly and indirectly under the GATS. 
 
5. The Government of India is of the view that these and comparable measures, (as well as 
any amendments, related measures, or implementing measures), taken by the United States are 
not in conformity with at least the following prov isions of the GATS: Articles XVI, XVII, XX, and 
paragraphs 3 and 4 of the GATS Annex on Movement of Natural Persons Supplying Services. These measures also appear to be inconsistent with Articles III:3, IV:1 and VI:1 of the GATS.  
 
II Measures relating to Numerical Commitment for H-1B Visas  
6. In its Schedule of Specific Commitments under the GATS, the United States has specified in 
respect of its horizontal commitments under Mode 4, in the category of Fashion Models and Specialty Occupations, that it would allow "up to 65,000 persons annually on a worldwide basis in 
occupations as set out in 8 U.S.C. section 1101(a) (15)(H)(i)(b)". This provision is reflected under 
8 U.S.C. section 1184(g)(1)(A) of the INA.
3  
 
7. This numerical commitment has however been subsequently modified pursuant to the United 
States’ Free Trade Agreements with Singapore and Chile. Under section 1184(g)(8)(B)(ii) of the 
INA4 as amended, the Secretary of Homeland Secu rity is required to establish annual country-
specific numerical limits for initial applications for admission under section 101(a)(15)(H)(i)(b1) of 
the INA5 for nationals of Chile and Singapore, which shall not exceed 1,400 for nationals of Chile 
and 5,400 for nationals of Singapore. Section 1184(g)(8)(B)(iv) of the INA6 provides that the 
numerical limits specified by the Secretary of Homeland Security under section 1184(g)(8)(B)(ii), 
                                               
3 8 U.S.C. section 1184(g)(1)(A) 
4 8 U.S.C. section 1184(g)(8)(B)(ii) 
5 8 U.S.C section 101(a)(15)(H)(i)(b1) 
6 8 U.S.C. section 1184(g)(8)(B)(iv) WT/DS503/1 • S/L/410 
 
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  would be reduced from the worldwide annual numerical limitation of 65,000 H-1B visas as 
provided under section 1184(g)(1)(A) of the INA. 
 
8. In addition to the above reduction, section 1184(g)(8)(D)7 of the INA provides for a further 
reduction from the worldwide annual numerical limitation of 65,000 H-1B visas under section 
1184(g)(1)(A), when a national from Singapore or Chile is granted an extension after having obtained five or more  earlier extensions.  
 
9. The measures under section 1184(g)(8)(B)(iv) of the INA and section 1184(g)(8)(D) of the INA appear to be inconsistent with the United States’ Schedule of Specific Commitments to the 
GATS in respect of the numerical commitment of entry for natural persons available annually on a 
worldwide basis in occupations set out in section 1101(a)(15)(H)(i)(b) of the INA. These measures 
also appear to raise the overall barriers for serv ice suppliers from India seeking entry into the 
United States under section 1101(a)(15)(H)(i)(b) of the INA, compared to the level applicable 
prior to the implementation of the United States ’ Free Trade Agreements with Singapore and Chile. 
These measures also appear to nullify or impair the benefits accruing to India directly or indirectly 
under the GATS. 
 
10. The Government of India is of the view th at these and comparable measures taken by the 
United States are not in conformity with at least the following provisions of GATS: Articles II, V:4, XVI and XX and paragraph 3 and 4 of the GATS Annex on Movement of Natural Persons Supplying 
Services. These measures also appear to be inconsistent with Articles III:3 and IV:1 of the GATS.  
 
11. For the measures cited in this request, this request also covers any amendments, 
replacements, extensions, successor or implementing measures or other related measures. The 
Government of India reserves its right to raise additional factual claims and legal matters during the course of the consultations and in any future request for panel proceedings. 
 
12. We look forward to receiving your reply to the present request and to setting a mutually convenient date and venue for consultations.  
 
 
__________  
                                               
7 8 U.S.C. section 1184(g)(8)(D)