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INTERNATIONAL BUSINESS AND TRADE

Exports

U.S.:

• The U.S. Commerce Department will soon publish new export rules raising the license-free threshold for "deemed exports" of transfer of technical data to foreign nationals to approximately 50 tier three countries including Russia, China, Egypt, India, Israel and Pakistan while lowering the threshold to 22 NATO countries (21 ITR 1538; 9/23/04)

Intellectual Property

U.S.:

• The World Trade Organization ("WTO") declared Section 211 of the 1999 Omnibus Act violates its rules since it prohibits U.S. Courts from enforcing trademarks similar to trademarks used in connection with a business confiscated in Cuba without consent of the original owner thereby inspiring a series of bills in Congress to eliminate or modify this U.S. statutory sanction (15 ITR 1563; 9/23/04).

Sanctions

U.S.:

• The 18 year ban on two-way trade and financing by the U.S. Export/Import Bank and other government agencies with Libya was lifted by the White House under the National Emergency Economic Powers Act (21 ITR 1573; 9/23/04).

Dumping

WTO:

• The World Trade Organization gave the European Union, Japan and six other trading partners the right to impose retaliatory duties on U.S. imports resulting from the failure of Congress to strike down the Byrd Amendment which allows funds collected from duties on goods imported from countries which are unfairly dumped or subsidized to be distributed to the complainants (21 ITR 1478; 9/9/04).

INTERNATIONAL AGREEMENTS AND INVESTMENTS

Chemicals

U.N.:

• Fourteen new chemicals will be listed under a treaty requiring exporters of listed substances to get approval for certain hazardous chemicals and pesticides under a prior informed consent mechanism (21 ITR 1546; 9/23/04).

Immigration

Thailand:

• The government of Thailand seeks liberalization of the immigration rules in the United States to permit "temporary" entry provisions for professional workers in the same manner as such privileges were afforded to nationals of Singapore and Chile in the free trade agreements negotiated with those countries (21 ITR 1555; 9/23/04).

Bilateral Agreements

U.S./Afghanistan:

• An investment agreement was signed with Afghanistan to spur trade and investment between the two countries (21 ITR 1574; 9/23/04).

U.S./Bahrain:

• A free trade agreement was signed with Bahrain to enhance U.S. commercial relations with an economic leader in the Persian Gulf region (21 ITR 1526; 9/16/04).

IMMIGRATION

"Security and Fairness Enhancement for America Act of 2003"

(HR 775)

• This bill would eliminate the Diversity Visa (DV) program and was passed by voice vote by the House Judiciary Subcommittee on immigration (81 IR 1271, September 20, 2004).

Change of Status for B1 Visitor to F1 Student No Longer a Good Idea

• Department of State Cable 301628Z March 04 announces consular posts should discourage applications by intending students to come to the United States in B1 visitor classification since it is now an impractical option because of the difficulties in change of status and requirement for declaration of the initial intent to attend school (9 IB 603; May 1, 2004).

The Second Circuit Court of Appeals Rules the Lower District Court has Jurisdiction Over Wrongful Revocation of Green Card

• The Second Circuit Court of Appeals ruled the U.S. District Court had jurisdiction to hear a claim for wrongful revocation of a green card notwithstanding the statutory vesting of exclusive jurisdiction in the Court of Appeals and the former INS (legacy) did not have authority to revoke a prior approval of a visa petition where the beneficiary was already in the United States.

• The Second Circuit Panel determined that notice of revocation of a visa petition must be before the beneficiary begins his journey to the United States and to do otherwise constituted improper notice under the Immigration Act.

• The government had alternative remedies and procedures to revocation where it could have initiated removal proceedings against the beneficiary or could have denied adjustment of status in the exercise of discretion. (Firstland International v. INS, 2004 U.S. App. Lexis 15851 (2d. Cir. August 2, 2004)(9 IB 1039; September 1, 2004)

LEGISLATIVE AND LEGAL DEVELOPMENTS

Tariff Classification

U.S.:

• The U.S. Court of Appeals for the Federal Circuit ruled the Bureau of Customs and Border Protection (CBP) failed to identify any change in circumstances to support its interpretation of the tariff schedule to narrow the definition of marble (Intercontinental Marble Corp. v U.S., Fed. Cir., No. 03-1555; 8/25/04; 21 ITR 1482; 9/9/04).

Automotive

E.U.:

• The European Commission proposed legislation that would open up the 10 billion euro automotive market in Europe to competition (21 ITR 1553; 9/23/04)

Agriculture

WTO:

• The World Trade Organization issued an expansive ruling against U.S. subsidies for producers of upland cotton between 1999 and 2002 noting the subsidies violated article 6.3(c) of the Subsidies and Countervailing Measures Agreement causing serious prejudice to Brazilian competitors by encouraging overproduction and driving down global prices for cotton (21 ITR 1514; 9/26/04).

Immigration

U.S.:

• HR 4306 was passed by a voice vote in the House Judiciary Immigration Subcommittee allowing for handwritten or electronic signatures to suffice for attestations and retention of records by paper or electronic version for employment eligibility verification forms (81 IR 1271; September 20, 2004).

REGULATORY PROTECTION AGAINST TERRORISM

Food Imports

U.S.:

• The FDA requires prior notice of food imports 2-8 hours before arrival at the port of entry to implement the provisions of the Bioterrorism Act as of November 1, 2004 (21 ITR 1541; 9/23/04).

Exports

U.S.:

• Restrictions on exports on sales of high technology equipment to India will be loosened by the Departments of Commerce and Treasury to expand cooperation in civilian nuclear and space activities (21 ITR 1555; 9/23/04).

Customs

U.S.:

• BCP will conduct a test of the transmission of automated truck manifest data under the 2002 Trade Act requiring advanced automated manifest information on cargo entering and leaving the United States by air, rail, sea vessel and truck (21 ITR 1498; 9/16/04).

Trade Adversely Affected by Immigration Practices

U.S.:

• The National U.S. Arab Chamber of Commerce asserts current U.S. immigration visa policies are costing the U.S. economy an estimated $5 billion a year in lost commercial opportunities with the Arab world (21 ITR 1527; 9/16/04).

• The American Chamber of Commerce in China reports that U.S. businesses lost over $30 billion in trade with China in the past 2 years because Chinese business people have been denied visas to go to the U.S. for trade fairs, conferences and other business events while U.S. export sales have been delayed or lost due to an inability to schedule visits by Chinese officials and customers (21 ITR 1558; 9/23/04).

IMMIGRATION

No More Handcuffs for Certain Violators of Visa Waiver Program Provisions

• U.S. Customs and Border Protection Commissioner Robert Bonner announced that CBP officers now have discretion to grant no-risk travelers who overstayed under the visa waiver program on a prior visit a one-time parole and terminates the practice of officers who were detaining, handcuffing and keeping their prisoners in detention for one day. These visitors who were “overstays” on the visa waiver program were being arrested, detained in handcuffs and put back on a flight back to their home country. Noting that the port directors and supervisors may grant parole except where a person poses a threat for terrorism, criminality or is likely to become an economic migrant, BCP concluded the handcuffing and detention of managers, executives, engineers and like professionals might be unnecessary (9 IB 1043; September 1, 2004).

Sources: IR - Interpreter Releases, Federal Publications, Inc.; ITR - International Trade Reporter, Bureau of National Affairs, Inc.; IB-Bender’s Immigration Bulletin; ILT - Immigration Law Today, American Immigration Lawyers Association Monthly Journal; IL - International Lawyer, SMU School of Law; FT- Financial Times; KTF - Korea Trade Focus Monthly Newsletter (Korea International Trade Association) TE - The Economist Magazine; GATM - German American Trade Magazine published by the German American Chamber of Commerce; MAPI - Manufacturers Alliance Legal Analysis and Regulations; WSJ - Wall Street Journal; ILN/ABA-International Law News, American Bar Association; TMIJ-Tax Management International Journal, Bureau of National Affairs, Inc.; AILA - American Immigration Lawyer’s Association

International Law Bulletin is an international legal news digest published monthly as a service to Nelson Mullins’ clients and friends.  The articles are summaries of particular developments in the law and are not intended to be a solicitation or to render legal advice. This publication can be considered advertising under applicable laws.  Copyright 2004

Nelson Mullins Riley & Scarborough, L.L.P.

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