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Enhancing Global Trade: Strategies for Sustainable Growth

global trade unctad baltimore bridge supply chain import

Enhancing Global Trade: Strategies for Sustainable Growth

Global trade serves as the lifeblood of the world economy, fostering economic development, creating job opportunities, and driving innovation. However, amidst the complexities of geopolitical tensions, technological disruptions, and environmental concerns, it becomes imperative to explore strategies for enhancing global trade while ensuring sustainability and inclusivity. By leveraging innovative approaches and fostering cooperation, nations can navigate challenges and unlock the full potential of international trade.

1. Embrace Technological Advancements:

Embracing technological innovations such as blockchain, artificial intelligence, and digital platforms can streamline trade processes, reduce transaction costs, and enhance transparency. Implementing digital solutions for documentation, customs procedures, and supply chain management can expedite trade flows and minimize bureaucratic hurdles.

2. Strengthen Multilateralism:

Reinforcing multilateral trading systems, such as the World Trade Organization (WTO), is crucial for promoting fair and rules-based trade practices. Collaborative efforts among nations to address trade disputes, eliminate trade barriers, and modernize trade agreements can foster a conducive environment for global commerce.

3. Foster Inclusive Trade Policies:

Developing inclusive trade policies that prioritize the interests of all stakeholders, including small and medium-sized enterprises (SMEs), women entrepreneurs, and marginalized communities, is essential for ensuring equitable participation in global trade. Providing capacity-building assistance, access to finance, and technical support can empower underrepresented groups to harness the benefits of international trade.

4. Promote Sustainable Trade Practices:

Integrating sustainability considerations into trade policies and practices is essential for mitigating environmental degradation, combating climate change, and promoting social responsibility. Encouraging eco-friendly production methods, supporting renewable energy industries, and implementing carbon pricing mechanisms can align trade activities with sustainable development goals.

5. Invest in Infrastructure Development:

Investing in robust infrastructure, including transportation networks, ports, and digital connectivity, is critical for facilitating seamless trade flows across borders. Enhancing infrastructure capabilities in developing countries can bridge infrastructure gaps and unlock new trade opportunities, particularly in emerging markets.

6. Enhance Trade Facilitation:

Improving trade facilitation measures, such as simplifying customs procedures, reducing trade documentation requirements, and harmonizing regulatory standards, can enhance the efficiency and competitiveness of global trade. Adopting best practices in trade facilitation can minimize delays and uncertainties, thereby boosting trade volumes and economic growth.

7. Promote Trade Finance Accessibility:

Facilitating access to trade finance instruments, such as trade credit, export insurance, and trade guarantees, is vital for enabling businesses, especially SMEs, to engage in international trade. Collaborative efforts between financial institutions, governments, and international organizations can expand the availability of trade finance and mitigate risks associated with cross-border transactions.

8. Harness Regional Integration:

Leveraging regional integration initiatives, such as free trade agreements (FTAs) and customs unions, can deepen economic integration, enhance market access, and promote regional stability. By harmonizing trade rules and fostering closer economic cooperation, regional blocs can create synergies that amplify the benefits of global trade for member states.

Conclusion

Improving global trade requires concerted efforts to address the challenges of the modern era while capitalizing on emerging opportunities. By embracing technological innovations, strengthening multilateralism, fostering inclusive trade policies, promoting sustainability, investing in infrastructure, enhancing trade facilitation, facilitating trade finance accessibility, and harnessing regional integration, nations can collectively advance towards a more prosperous and sustainable global trading system. Through collaborative action and shared commitment, the potential for transformative change in global trade can be realized, driving economic prosperity and social progress for generations to come.

supply

Foreign Direct Investment (FDI) and Supply Chain Disruption: Key Takeaways from the 1st Quarter

Foreign manufacturers are increasingly focused on how evolving “Buy American” requirements may impact them. And like most U.S. domestic manufacturers, foreign manufacturers continue facing challenges with supply chain disruption, with the grounding of the Ever Given in the Suez Canal as just the latest headache. In order to mitigate risks associated with more restrictive local sourcing requirements and complex logistical challenges, foreign manufacturers are revisiting the localization of distribution, assembly and production activities in the U.S.

Those are a few takeaways from our conversations over the past three months with dozens of business leaders from the UK, Germany, Austria, Italy, India, China, South Korea, Mexico and other countries around the world. The focus of those conversations has been navigating foreign direct investment (FDI) and supply chain disruption amid the pandemic. Below are some of the main trends we are seeing and examples of how companies are adapting.

Evolving Content Requirements

There is an increasing awareness of the risk manufacturers face tied to changing content requirements in the U.S. These risks are not totally new. However, the Biden administration is signaling that the U.S. will continue increased focus on this issue, which is expected to impact several industry sectors in particular.

On January 25, President Biden signed an executive order aimed at long-standing “Buy American” provisions the U.S. government follows in its own procurement process. The Biden order instructed the Federal Acquisition Regulatory (FAR) Council to come up with new regulations increasing the Buy American requirements and changing the way those requirements are measured. However, the Biden order does not specify how much to increase content requirements – that will be up to the FAR Council to decide by late July 2021. In the meantime, the U.S. government is already tightening its waiver process that is used to allow certain types of procurement projects to receive exceptions to some “Buy American” requirements.

Combined with higher North American content requirements in the United States-Mexico-Canada Agreement (USMCA), more foreign companies are finding themselves grappling with this issue depending on their industry sector. Those involved in government contracting are right in the crosshairs, and the building materials and information technology industries are likely to see the largest impacts. And the importance of this issue will increase if President Biden’s infrastructure legislation passes Congress.

Those content requirements are contributing to a longer-term trend: more industries are moving manufacturing into the United States. Business leaders say they have several strategic reasons for this, including improved logistics and US content requirements, but also proximity to key customers and reduced currency risks. We also continue to hear interest in Mexico as an alternative to the U.S.  While USMCA’s content and wage requirements may shift some Mexican manufacturing to the U.S., Mexico is still very much in play for FDI projects considering North America.

Moving Forward With Site Selection Amid the Pandemic

While the pandemic has made site selection difficult, many companies that are making strategic investments like those mentioned above are finding ways to carry out their location projects. However, although some travel opened up for business travelers in the 1st quarter of 2021, COVID-19 continued to disrupt many plans.

For example, several leaders of a South Korean business recently traveled to North and South Carolina for a site visit. But after their first meeting, they found out an economic developer in that meeting tested positive for COVID-19. As a result, the South Koreans had to quarantine in their hotel and conduct the remaining meetings virtually – with people who were right down the street.

We know of two other instances in the first quarter where a COVID-19 diagnosis, one in the home-country and one in the U.S. after landing, wrecked a site visit. That is part of the reason many of the visits still happening in the U.S. involve companies that already have an American presence, as travel is easier for their personnel.

Still, while international travel is down, international projects are moving forward. The key is the rapid improvement of virtual tools during the pandemic, including virtual showcases that incorporate GIS mapping data, drone footage, and other elements to help with due diligence. While companies are finding these tools extremely useful, they are also finding it more important than ever to have trusted professionals, including legal counsel, on the ground in the locations they are considering. (You can learn more about navigating virtual site selection here.) By combining the advantages of virtual site selection with an expected increase in the ability to travel this summer due to vaccinations in the U.S., foreign companies can move forward with their site selection.

Dealing With Supply Chain Disruption

There may be no clearer image of supply chain disruption than a 1,300-foot container ship walling-off the Suez Canal. But the Ever Given running aground was simply the latest example of the difficulties companies have faced for more than a year now. Manufacturers and the logistics companies serving them say the cost of shipping goods and the ability to get space for those goods have become terribly challenging.

Much of this still goes back to the inability to get products from the source, whether those products are microchips or wood. While there are fewer lockdowns worldwide now than there were last year, many plants continue operating at low capacity or are struggling to catch up to demand.

Marbach Group, a global manufacturer and supplier of die-cutting tools and equipment based in Germany with more than 20 locations worldwide, has been constantly adapting through the pandemic to address these challenges. The February freeze in Texas, for instance, contributed to a shortage of low-grade plywood that Marbach would typically use to make crates for the transportation of its products.

“In turn we had to use our own manufacturing wood for our products to build crates,” Marbach America CEO Fernando Pires says. “Since the lower-grade wood was not available, we increased our cost margins by having to use higher-grade materials for a simple transfer box for our products.”

That’s just to get their products ready for shipping. Pires has many more examples of challenges the company has faced after its products are shipped.

One-way Marbach and other companies have responded is by building up inventory. (Pires jokes his head of purchasing must have had a crystal ball, as Marbach started increasing its stock levels in January 2020.) Marbach reflects an uptick in interest for distribution and warehouse space in the Southeastern U.S., which is evidenced by the significant construction of new warehouse space in the region. Some companies are temporarily leasing warehouses so they can stock up on raw materials and finished goods to avoid shortages when supply chains are not working correctly.

Foreign manufacturers are also diversifying their supply chains and service capabilities. Some companies that traditionally had one or two suppliers of a certain type of component are now adding additional suppliers of the same component for more robust redundancy in the supply chain. Others whose supply chains were concentrated in one part of the world are looking to add geographic diversity – so the next time a country has a COVID-19 problem, they won’t be so dependent on that one area.

Likewise, companies are diversifying their service capabilities and know-how. Many foreign companies rely on key personnel from their headquarters to fly elsewhere and solve problems when needed. That’s become more challenging with COVID-19 travel restrictions, so companies are diversifying their training programs. One executive described it as onshoring skills.

Surging FDI Down the Road?

The final thing that stood out to us amid conversations with foreign business leaders in the first quarter of 2021 is the potential for a surge in FDI coming out of the pandemic. This potential comes from two key factors.

First (and as noted above), many companies remain committed to their strategic growth plans, although the pandemic may temporarily slow the pace of their investments. Second, companies have been in cash-preservation mode and have cheap borrowing options at the moment. In addition to cheap debt for expansion, investors are also hungry for higher returns and are seeking to invest in innovative foreign companies who have growth potential in markets like the U.S.

For companies that have been able to avoid a severe hit to their financial position, all of these conditions are ripe to create a jolt in FDI as the pandemic subsides.

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Sam Moses and Al Guarnieri are leaders in Parker Poe’s Manufacturing & Distribution Industry Team. Sam is based in Columbia, South Carolina, and Al is based in Charlotte, North Carolina. They can be reached at sammoses@parkerpoe.com and alguarnieri@parkerpoe.com

duty drawback

New Customs Duty Drawback Refund Program Helps Mitigate the Impact of China Tariffs

The Trade Facilitation and Enforcement Act of 2016 (known by its acronym TFTEA) profoundly liberalized the unique tariff mitigation strategy commonly referred to as duty drawback refunds. This represented the culmination of a nearly 12-year collaboration effort between the Drawback Trade Community and Customs and Border Protection in an effort to modernize the drawback refund program to make this valuable export incentive program more accessible to U.S. Business.

The duty drawback law originally enacted in 1789 by the first U.S. Congress allows for the refund of Customs duties on imported merchandise subsequently exported from the U.S. either in the same form or following a manufacturing process.

As an example, a producer of eyewear in China imports sunglasses into its distribution facility located in the U.S. at a duty rate of 2.5%. Eighty percent of the glasses are sold in its stores in the U.S. but twenty percent are exported to its stores in Canada and Latin America. Upon reexport to Canada and Latin America, the eyewear company is eligible for a refund of the 2.5% regular duty and if applicable, the 25% China tariff.

The implementation of the new drawback program in 2018 could not have been timelier as it coincided with the Trump Administration’s decision to levy 25% punitive tariffs on nearly $400  billion in value on imports from China. The purpose of the tariff was an effort to balance a massive trade deficit, address a variety of alleged unfair trade practices by Beijing, and benefit American manufactures, and by extension, U.S. factory workers.

One major electronics company we represent went from paying under a few million a year in duty to nearly $50 million following the impositions of the China Tariffs. The duty drawback program will allow them to recapture nearly $20 million in duties thus substantially reducing the cost impact of the tariff. Another alcohol company we work with withstands to recover nearly $15 million in federal excise tax (also eligible for a refund via the drawback program in addition to duties and tariffs). They are taking advantage of the drawback program that allows not only for the refund of future imports and exports but provides refunds on duties associated with 5 years of historical activity!

The imposition of these massive tariff increases disrupted supply chains as it sent U.S. importers scrambling for compliant strategies to mitigate the additional 25% cost on much of the import activity from China. Selecting the correct strategy for U.S. importers among a number of options was further complicated by one primary unknown variable – how long would the tariffs last? In addition to duty drawback refunds, U.S. businesses evaluated many strategies that included petitioning the Trump Administration for product exclusions, shifting supply chains to source products from outside of China, adjustments to classification/valuation, foreign trade zones, and bonded warehouses.

The duty drawback program with its minimal start-up costs and with no disruption to existing product flows and supply chains offers significant advantages to other tariff mitigation strategies but is limited to those companies with significant export volumes from the United States. Companies that only import into the U.S. with no offsetting export volume, are better served by other compliant tariff minimization methods.

Understanding the Drawback Substitution Methodology  

The new drawback law substantially liberalized the substitution rules to allow more flexibility when matching import and export activity for drawback purposes. Understanding how substitution works is key to determining a company’s recovery potential. The substitution method allows a drawback claimant to match “like” merchandise instead of directly linking an export back to the original importation using lot number or serial number tracing. Under the previous substitution drawback rules prior to the 2018 amendment of the law, the imported and exported merchandise needed to share the same material code and/or product specifications. With the new rules implemented in 2018, the import and the export need only share the same tariff classification number at either the 8th or the 10th digit of the HTS number.

As an example, under the previous drawback regime, a U.S. importer and exporter of orange juice would need to match on the basis of grade and specification. Since many Florida orange juice distributors source juices from multiple countries including Mexico and Brazil (two of the world’s largest producers of OJ) in addition to procuring domestic juice, the exported juice and the imported juice needed to be commercially interchangeable in the marketplace, a very narrowly defined standard. Today, the same company can match export Florida grade A juice and reclaim the duty assessed on imported Brazilian Grade B juice because both fall under the same general tariff classification – grade, specification, or material code are no longer relevant.

The liberalization of this substitution standard places additional recovery on the table for a number of industries while simplifying the process of preparing drawback claims. Returning to the example of sunglasses, the eyewear company could now export a pair of U.S.-made sunglasses and offset the duty paid on imported glasses from China. In the case of beer, there is only one harmonized tariff classification for beer, so an exported Coors light would be interchangeable with Molson beer imported from Canada.

The first step in the drawback process is to conduct a thorough evaluation of a company’s drawback potential both for the past five years as well as moving forward. As the saying goes, a company must first determine if the “juice is worth the squeeze.” For many large importers/exporters, the answer is a resounding “yes”, and given the opportunity for retroactive recovery, the first-year refunds can provide a significant boost to the bottom-line while assisting many importers in reducing the impact of the Trump tariffs.

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Anthony Nogueras, the founder and current CEO of Alliance Drawback Services, brings nearly 30 years of drawback specific experience to Alliance’s  extensive list of clients that includes many Fortune 500 firms. In 2020, Alliance cumulative drawback filings exceeded $100 million in drawback refunds.

During his extensive career as a drawback specialist, he has spoken on drawback matters before a host of organizations including National Associations of Purchase Managers, The Juice Products Association and  the International Titanium Association in addition to many international trade organizations.    He has also been published in the Journal of Commerce, and numerous other trade industry publications.

Mr. Nogueras drawback experience includes the management of drawback accounts in a variety of industries including retail, petrochemicals, metals, and agricultural products.  In 1989 he graduated with high honors from San Francisco State University with a bachelor’s degree in International Relations and Economics.  He is also a Licensed Customs Broker.

fcpa

FCPA Enforcement Under the Biden Administration: Three Areas to Watch

Foreign Corrupt Practices Act (“FCPA”) enforcement under the Trump administration was both remarkable and perhaps unexpected. As a candidate and private citizen, former President Trump had been openly critical of the FCPA, which he had referred to as a “horrible law.” This led many to wonder whether the long run of FCPA enforcement was coming to an end. Instead, the DOJ and SEC obtained record FCPA penalties from 2017 to 2020. In 2020 alone, the DOJ and SEC secured 18 corporate FCPA resolutions, including the two largest penalties ever issued for FCPA violations (against Airbus and Goldman Sachs). Given the results in 2020, it may seem alarmist to suggest that we will see even more FCPA enforcement during the Biden administration. But, that is exactly what we expect.

First, the record-breaking numbers during the Trump administration only tell half of the story. The largest and most noteworthy penalties related to investigations that began years before. FCPA enforcement did not cease during the Trump administration as many speculated, but fewer FCPA-related investigations were initiated year over year from 2017 to 2020. We expect a reversal of that trend under the Biden administration.

Second, Biden and his team appear poised to tackle FCPA violations with renewed vigor. The Biden administration has framed the fight against corruption as a central part of its foreign policy strategy. During the campaign, candidate Biden vowed to “issue a presidential policy directive that establishes combating corruption as a core national security interest and demographic responsibility.”[1]

President Biden’s appointees, ranging from National Security Advisor Jake Sullivan to Attorney General Merrick Garland and SEC Chairman Gary Gensler, have confirmed a commitment to focus on combating corruption around the world. This focus, bolstered by the hiring of seasoned lawyers to fill key roles within the DOJ’s and SEC’s foreign bribery units, as well as new enforcement tools authorized by the U.S. Congress, all but ensures that the FCPA will be a key enforcement priority for the Biden administration.

Finally, the freshly equipped and motivated DOJ and SEC should have no shortage of opportunities to prove their mettle. Since early 2020, companies have been dealing with financial stress caused by the pandemic, while compliance departments have been dealing with layoffs and limitations associated with remote monitoring. History shows that financial stress creates incentives for fraud as companies and employees face pressure to meet financial targets. In other words, the DOJ and SEC, eager to demonstrate a commitment to combating corruption, maybe meeting a wave of potential corruption cases.

There are three areas we suggest watching as the Biden administration’s anti-corruption approach takes shape:

Impact of new tools authorized by Congress – Biden’s FCPA enforcement agenda may be bolstered by new enforcement tools recently authorized by Congress. In particular, in January 2021, Congress enacted the Corporate Transparency Act (“CTA”) as part of the National Defense Authorization Act. The CTA requires companies that are registered in the United States to report their ultimate beneficial ownership to the Treasury Department’s Financial Crime Enforcement Network. The information, though not public, will be available to law enforcement and banks.

The CTA is designed to prevent individuals from hiding transactions behind shell companies to circumvent anti-corruption, anti-money laundering, and other laws. The impact of the CTA on FCPA investigations remains to be seen. Given the international nature of the activities involved, wrongdoers have historically utilized shell companies outside of the U.S., often in jurisdictions that allow for more opaque ownership arrangements. The CTA will have no effect on these companies. However, the CTA could limit corrupt funds from finding safety in the U.S. market and may make it easier for investigators to “follow the money” when U.S. companies are involved.

International Coordination in FCPA Investigations – The largest and most significant FCPA resolutions often demand coordination between the U.S. DOJ and SEC and foreign regulators. In 2020, the DOJ and SEC coordinated with foreign regulators in the resolution of the four largest enforcement actions: those with Goldman Sachs, Airbus, J&F Investmentos, and Vitol. The extent to which the Trump administration’s combativeness toward traditional allies may have affected these resolutions or active investigations is hard to quantify. Nevertheless, given the Biden administration’s pointed emphasis on working closely with allies on most of its foreign policy goals, we expect that coordination with foreign regulators in the FCPA context will only increase, with new partners brought into the fold.

This is a view apparently shared by Daniel Kahn, Acting Fraud Section Chief (DOJ), who indicated during a March 2021 International Bar Association webinar that he expected an increase in multi-jurisdiction investigations and resolutions, including with foreign authorities that U.S. enforcers have not previously coordinated with. In addition, improving relations and cooperation generally could lead to greater efficiency in the way that regulators share evidence and coordinate resolutions. This could potentially significantly reduce the time it takes to conclude these complex cross-border investigations.

Approach Toward Monitorships – In 2020, none of the 18 corporate FCPA resolutions involved the imposition of an independent compliance monitor. Whether this was a result of the changes made in 2018 to the DOJ’s guidance on corporate compliance monitors (in a document often referred to as the “Benczkowski Memo”) is unclear. However, it does appear that the leadership of the DOJ and SEC during the Trump administration took a more restrained approach toward the use of monitors. We expect that the DOJ and SEC under the Biden Administration will be more likely to rely on monitorships in connection with FCPA resolutions, consistent with the approach taken during the Obama administration.

With all signs pointing to an increased focus on anti-corruption enforcement, the question is less if than when. Both the decrease in new investigations under the Trump administration and the practical limits on investigations imposed by the pandemic will take time to reverse. But when the tide eventually comes in, we expect the waves will be large.

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Written by Michael DeBernardis, Benjamin Britz, and Debbie Placid at Hughes Hubbard & Reed.

[1] Joseph R. Biden, Jr., Why America Must Lead Again, Rescuing U.S. Foreign Policy after Trump, Foreign Affairs (Jan. 23, 2020).

immigration

Exploring Near and Long-Term Business Immigration Hurdles in the U.S. in light of the COVID-19 Pandemic and the change in the U.S. Administration under President Biden

UPDATE: This article has been updated to reflect that the Biden administration has formally rescinded the public charge rule, which had required a tremendous amount of documentation regarding income for even the most highly paid employment-based applicants.

Businesses looking to use a variety of work visas in the U.S. will continue to face hurdles well into 2021 as the impact of the pandemic and the change in presidential administration evolves over the next several months.

Former President Donald Trump’s restrictions on the issuance of H-1B visas for professional workers, H-2B visas for temporary non-agricultural workers, J visas for participants in work and student exchanges, and L visas for intracompany transferees were extended until the end of March. President Joe Biden’s administration has signaled it may revoke those sooner, but other priorities may delay immediate action before these restrictions expire anyway. The Biden administration has also put back into place or added to other restrictions impacting business travel into the United States, including requiring a negative COVID-19 test to fly into the U.S. and directing U.S. government agencies to review additional measures to mitigate the spread of the COVID-19 virus.

The coronavirus restrictions are only part of the story though. There continue to be other immigration headaches for businesses that will take longer for Biden to address regardless of the state of the pandemic. These matters include a complicated issue tied to per-country limits on employment-based immigrant visas. It is an example of a thorny issue for the federal government to address and for businesses to navigate until and only if more comprehensive immigration reform is passed.

Near-Term Hurdles for Business – Travel Restrictions

There is no flexibility on one of the latest requirements: The Centers for Disease Control and Prevention (CDC) requires all passengers, including U.S. citizens, permanent residents, and foreign citizens alike, flying into the United States to show a negative COVID-19 test or proof of recovering from the coronavirus within the last 90 days. The COVID-19 test needs to have been taken within three calendar days of the flight’s departure. All travelers should review the latest CDC restrictions before undertaking any travel as these requirements change periodically. The CDC also updates its recommendations regarding travel on a regular basis as well. Individuals who fail to comply with these requirements may not be able to board flights or may be turned away at the U.S. border. For foreigners traveling under valid visas or the visa waiver program, a denial or refusal of admission to the U.S. could have significant immigration consequences for future travel to the U.S.

Other travel hurdles may allow for more flexibility in planning. While Biden has either extended or created new restrictions on travel from the 26 Schengen Area countries in Europe, the United Kingdom, Ireland, Brazil, China, Iran, and South Africa, qualified applicants may request “National Interest Exception” (NIE) waivers through the Department of State,  the Department of Homeland Security, or through Customs and Border Protection for travelers who already have a valid visa or registration through the Electronic System for Travel Authorization (ESTA). The qualification criteria for such an NIE waiver depends on the region from which the traveler is coming and advance planning is critical.

There are also exceptions for the suspension of issuance of certain work visas referenced earlier, even if Biden does not revoke the implementing proclamation before the end of March. More specifically, the Department of State has issued guidelines clarifying who may be eligible to apply for NIE waivers from these as well, but the consulates have not been consistent in implementing that guidance, so it is still important to review closely whether a case may qualify. Unless an applicant for an H-1B, H-2B, J, or L visa is working in a field that clearly falls within one of the stated exemptions – which are primarily tied to public health, U.S. government work, or businesses deemed within critical infrastructure to the U.S. – it is unlikely that new visas in these categories will be issued until the beginning of April, assuming that the suspension is allowed to expire as planned.

With respect to either type of NIE waiver – whether for the travel restriction or the suspension of issuance of visas in certain categories – one of the other major issues with respect to immigration processing has been the closure or reduced operational capacity of U.S. Embassies and Consulates overseas. While some Consulates have remained open for some level of visa processing, most Consulates have closed or operated on significantly reduced capacity since March 2020. This reality has dramatically impacted the ability of foreign national travelers to apply for any visas in their home countries at all, much less to request an NIE waiver.

Some companies have asked if outsourcing can be a solution in the meantime. Outsourcing can be cost efficient with the right partner, but with respect to the immigration restrictions companies may really just be passing on the problem. If the outsourced company is not compliant with U.S. laws, then it and the partner company may face liability. In this case, due diligence and proper contracting with the outsourcing company is key.

While the pandemic continues, the bottom line is that travel in and out of the U.S. will remain restricted. For those travelers who do not need to leave the U.S., remaining in the U.S. is still advised. Individuals outside of the U.S. have a few options to come to the U.S. as business activities start to normalize. Across the board, businesses should carefully consider each case in partnership with immigration attorneys to determine the best route forward and the pros and cons of traveling or applying for immigration benefits in the U.S. or with U.S. Consulates abroad.

Longer-Term Hurdles – Immigration Policy/Regulations

Businesses continue to face certain immigration challenges that are not driven by COVID-19, and these challenges will likely persist beyond the pandemic. There remains a huge, complicated issue that businesses, the White House, and Congress largely want to address but come at from different angles: the limits on how many immigrant visas we allow from each country and in each preference category. The tech industry wants to eliminate these limits right away, as they have a disproportionate share of Indian and Chinese immigrants stuck on waiting lists of up to 15 years to obtain permanent residency. Tech companies argue the government should instead prioritize the oldest cases.

But if that happens, many in the manufacturing industry will cry foul because European and South American workers would essentially trade places on the waiting list with Indian and Chinese workers. Manufacturers and other companies that rely on the European and South American workers would argue that is not fair without an interim fix to address the short-term ability for these workers to stay while the permanent residency cases are pending. More specifically, many of the Indian and Chinese workers are on H-1B visas that can usually be renewed indefinitely while they await a decision on their green cards. As a result, the wait list does not prevent them from continuing to work in the U.S.

On the other hand, many Europeans are on L visas, which can only be extended for up to five- or seven-years total. The E visa is also not an ideal option because only certain countries will qualify, and even so, the E visa does not clearly allow someone to pursue permanent residency concurrently. In the end, Germans for example who are already working at a U.S. manufacturing facility in South Carolina and were on track to receive a green card in three years may suddenly have to wait 10 years – and they can’t keep working in the U.S. after their visas expire.

Those are just a few of the competing priorities lawmakers and the Biden administration will face in addressing per-country limits and visa caps on immigrant visas. The road to changing those limits runs through Congress, so it will be important for businesses to review potential legislation as it is drafted and offer their perspective to their representatives. Because of both the complexity of this issue and the other priorities Congress is currently focused on, businesses are likely safe to continue planning for their near-to-medium-term personnel needs under the current system.

Conclusion

There remains a complex and restrictive set of policies impacting companies’ ability to hire or transfer workers in the U.S.  Both near- and long-term, it can be valuable to partner with immigration attorneys to determine how best to navigate this evolving landscape and adjust workforce strategy as policies change.

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Elizabeth Gibbes is an attorney at Parker Poe in Charleston, South Carolina, who focuses on international business and immigration. She can be reached at elizabethgibbes@parkerpoe.com.

voters

NEW POLL: TRADE WAS A TOP ISSUE FOR MANY 2020 VOTERS

Nearly Half of U.S. Voters Identified Trade as a Top Issue in Presidential Election

In a likely reflection of the front-and-center emphasis President Donald Trump has put on trade policy in his Administration, nearly half of U.S. voters identified trade as a top issue influencing their vote for president in 2020, according to TradeVistas’ latest survey.

Our poll also found that over the next four years, Americans want to prioritize policies supporting the U.S. production of goods and services, such as increasing U.S. exports abroad and promoting “Buy American” at home.

In our post-election survey of 1009 American adults, conducted by Lincoln Park Strategies, 22 percent of respondents said trade was “the most important issue to me” in determining their 2020 vote, while 27 percent said it was “one of the most important issues” to them. Of the rest, 32 percent said while trade was important, it didn’t affect their vote, and 20 percent said they were not sure or that it’s “not an issue I really care about.”

Importance of Trade in Vote for President

Over 60 Percent of Republicans Said Trade Was “Most” or “One of Most” Important Issues

Republicans were more likely to see trade as a top concern, with 61 percent saying it was the most important or one of the most important issues to their vote (versus 45 percent of Democrats. Independents, on the other hand, were the most likely to say it did not influence their vote (43 percent). Men were more likely to say trade was “the most important” issue to them (31 percent), while women were more likely to say a candidate’s position on trade did not affect their vote (39 percent).

Importance of Trade to Vote by Party

Trade as a Proxy for the General Economy

While the salience of trade as an election issue might seem surprising to some, there are a couple of potential explanations for our results. First, many voters may see trade policy as a proxy for their concern about the economy more generally. (In national exit polls, 37 percent of U.S. voters – including 83 percent of those voting for President Trump – said the economy was the issue that mattered most to their vote.) Moreover, Trump has made trade policy a centerpiece of his economic agenda, particularly with his trade war against China, the renegotiation of NAFTA as USMCA, and his promises to bring back jobs lost to offshoring. The President’s advocacy of policies like “Buy American” also explicitly linked the creation of U.S. jobs to U.S. production, which has arguably led to the conflation of trade and economic policy in the public mind.

Buy American to Remain a Top Priority

As our September survey found, Buy American enjoys immense bipartisan support, and respondents in our post-election poll indicated that this policy is their top priority among the options we tested. In our survey, 33 percent of respondents said policies like Buy American are “extremely important” to pursue over the next four years, compared to 26 percent who believed it extremely important to negotiate new trade agreements with other countries and 24 percent who said the same of increasing the export of U.S. goods and services. Consistent with our September survey, men and Republicans were somewhat more likely to consider Buy American to be “extremely important” (40 percent and 43 percent respectively). Overall, 61 percent of Americans said Buy American was “extremely important” or “very important,” while 59 percent said the same of new trade deals and more exports.

Tariff Fatigue Could Go Either Way

One policy that did not enjoy as strong support was the idea of imposing new tariffs. Just 20 percent said imposing new tariffs on foreign goods was “extremely important,” while an almost equal number – 19 percent – said new tariffs were not important (13 percent) or were opposed to the idea (6 percent).

On the other hand, low rates of opposition to new tariffs could indicate newfound acceptance of tariffs as a tool (or cudgel) in future trade policy.

Importance of Different Trade Policies

The Next Four Years

What all this means for the next four years is that Americans want to see and will support trade policies that aggressively promote American economic interests abroad and will create new jobs at home.

Methodology: Lincoln Park Strategies conducted 1009 interviews among adults age 18+ were from November 9-10, 2020 using an online survey. The results were weighted to ensure proportional responses. The Bayesian confidence interval for 1,000 interviews is 3.5, which is roughly equivalent to a margin of error of ±3.1 at the 95% confidence level.

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Anne Kim

Anne Kim is a contributing editor to Washington Monthly and the author of Abandoned: America’s Lost Youth and the Crisis of Disconnection, forthcoming in 2020 from the New Press. Her writings on economic opportunity, social policy, and higher education have appeared in numerous national outlets, including the Washington Monthly, the Washington Post, Governing and Atlantic.com, among others. She is a veteran of the think tanks the Progressive Policy Institute and Third Way as well as of Capitol Hill, where she worked for Rep. Jim Cooper (D-TN). Anne has a law degree from Duke University and a bachelor’s in journalism from the University of Missouri-Columbia.

sanctions

Hong Kong Sanctions Bill Passes Congress

On July 2, 2020, Congress passed the Hong Kong Autonomy Act.  Once signed by President Trump into law, the Act will require the Secretaries of State and Treasury to designate certain persons and financial institutions deemed responsible for eroding Hong Kong’s autonomy and in turn require the President to sanction such designated parties.

The Act comes on the heels of Beijing’s passage of a national security law that critics claim undermines the “One Country, Two Systems” framework that has been in place since the British handover of its former colony in 1997. Under the 1984 Joint Declaration between the U.K. and Chinese governments governing the terms of the handover, certain guarantees were required to be written into the Hong Kong Basic Law (i.e., the de facto Hong Kong constitution) to ensure certain political rights and the semi-autonomy of the territory from mainland China through at least 2047. The recently passed national security law is the latest in a string of moves by Beijing to more closely integrate Hong Kong with the mainland.

Summary of the Legislation

The Hong Kong Autonomy Act would require the Secretary of State to identify and report to Congress within 90 days persons providing or attempting to provide a material contribution “to the failure of the Government of China to meet its obligations under the Joint Declaration or the Basic Law.” This is defined under the Act to include any person who “took action that resulted in the inability of the people of Hong Kong . . . to enjoy freedom of assembly, speech, press, or independent rule of law; or . . . to participate in democratic outcomes; or . . . otherwise took action that reduces the high degree of autonomy of Hong Kong.” Once a report is made to Congress, the President is required to impose property blocking sanctions and visa restrictions on the identified parties within one year. The Act requires that the Secretary of State provide an unclassified assessment for imposition of such sanctions “so as to permit a clear path for the removal of economic penalties if the sanctioned behavior is reversed and verified by the Secretary of State.”

Similarly, between 30 and 60 days from the Secretary of State’s report, the Secretary of the Treasury would be required to identify and report to Congress “any foreign financial institution that knowingly conducts a significant transaction” with a foreign person identified by the Secretary of State. Within one year, the President must impose at least five of ten possible “menu-based” sanctions on the financial institution, which include, for example, restrictions on loans from U.S. financial institutions, restrictions on bank transfers subject to the jurisdiction of the United States, and/or asset blocking sanctions. Within two years, the President must impose all ten of the sanctions on the financial institution.

Both reports by the Secretary of State and Secretary of the Treasury must be unclassified and available to the public, although certain provisions would allow for the omission of information that would compromise an intelligence operation or subvert law enforcement activities. The reports are required to be updated no less frequently than annually.

Although the sanctions provisions are characterized in the Act as “mandatory,” the Act also empowers the President with a high degree of discretion to remove identified persons or financial institutions or terminate existing sanctions under the Act if the President determines that the material contribution or significant transaction by the identified party:

— “does not have a significant and lasting negative effect that contravenes the obligations of China under the Joint Declaration and the Basic Law;”

— “is not likely to be repeated in the future;” and

— “has been reversed or otherwise mitigated through positive countermeasures taken by” the identified person or financial institution.

The President is required to notify Congress and provide a rationale when exercising this discretion. Further, the Act authorizes the President to waive the application of sanctions if the President “determines that the waiver is in the national security interest of the United States” and notifies Congress of the waiver and the rationale for doing so.

Context

Hong Kong has been rocked by mass protests since last summer, which were first sparked by a bill proposed in April 2019 that would allow extraditions to mainland China. The proposed law drew significant protests from critics who claim the bill would be contrary to the Joint Declaration because, among other things, it could be used to target political dissidents. Ultimately, Beijing withdrew the extradition bill in September 2019. However, while protests have subsided somewhat in the wake of the COVID-19 pandemic, they have persisted more or less continuously.

Notably, the Basic Law required Hong Kong to pass legislation to address national security, which the city has never done, despite some unsuccessful attempts. Citing Hong Kong’s failure to enact its own national security legislation and the protestors’ “collu[sion] with external forces,” on June 30, 2020, Beijing enacted its own national security law applicable to Hong Kong which, inter alia, criminalizes “secessionist, subversive or terrorist” activities with penalties of up to life in prison; empowers Beijing to deploy mainland security forces; and overrides the ability of local Hong Kong courts to interpret the law.

Likely Practical Effect

The Hong Kong Autonomy Act represents an escalation in tensions between the United States and China. However, because of the wide discretion granted to the President under the Act, the actual effect of the legislation is unclear for the time being. In particular, the Trump Administration reportedly attempted to delay passage of the bill, and has thus far resisted imposing significant sanctions under a similar bill targeting China for alleged human rights abuses of minority Uighurs in order to salvage his trade deal with Beijing.

Because the Secretary of State must take the first action prior to set in motion any sanctions under the Act, the speed with which Secretary Pompeo makes the required designations will be a good indication of the Trump Administration’s intent. Parties interested in potential sanctions under the Act should monitor the State Department for developments.

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By Ryan Fayhee, Roy (Ruoweng) Liu and Tyler Grove at law firm Hughes Hubbard & Reed LLP

trade policies

HOW ARE COUNTRIES MAINSTREAMING GENDER IN TRADE POLICIES AND PRACTICES?

Tracking How Much She Trades

On July 7, the International Trade Centre rolled out a new tool to track the types and prevalence of trade policies designed to promote more trade by women-owned businesses.

Called “SheTrades Outlook” and funded by the UK, the index initially covers 25 countries as wide-ranging as Australia and Canada to Mauritius, South Africa, Rwanda, and Samoa, applying quantitative and qualitative data to rank them across 83 indicators and six policy areas. Analysts interviewed more than 460 institutions and organizations in these countries, evaluating factors including women’s access to opportunities for skills development, finance, and global markets, and networks.

Dashboard of SheTrades

The index also queries whether governments and national organizations offer tailored support to enterprises owned and run by women to enable them to grow their businesses globally, whether programs exist to help women entrepreneurs win government contracts, and if governments have begun to collect gender-disagreggated data that might better inform policies to support women in trade.

Finally, SheTrades Outlook compiles recommended practices across these policy areas to share the experiences of countries covered in the index as a global resource.

Example of SheTrades Tracker

Starting to Get the Picture

SheTrades Outlook seeks to create a more complete picture of how women participate in the global economy through trade. Doing so will help inform trade policies and national trade promotion programs that better serve women as critical drivers of productivity and economic growth worldwide.

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Andrea Durkin is the Editor-in-Chief of TradeVistas and Founder of Sparkplug, LLC. Ms. Durkin previously served as a U.S. Government trade negotiator and has proudly taught international trade policy and negotiations for the last fifteen years as an Adjunct Professor at Georgetown University’s Master of Science in Foreign Service program.

This article originally appeared on TradeVistas.org. Republished with permission.

nebraskans

NEBRASKANS SUPPORT TRADE BUT TRUST IN MEDIA AND WASHINGTON IS LOW

A new survey of Nebraskans finds that citizens appreciate trade’s benefits, especially for farmers and ranchers, but want more reliable information about trade policy.

Anxious but confident: the more international trade the better

Nebraskans surveyed are anxious about the economy but confident with respect to the importance of trade to their state’s agricultural production complex.

Released last month by the Carnegie Endowment for International Peace and the University of Nebraska-Lincoln (UNL), the new report, “U.S. Foreign Policy for the Middle Class: Perspectives from Nebraska,” assesses state views about how U.S. foreign policy interacts with the economic wellbeing of the middle class in the nation’s heartland. The research team interviewed over 130 Nebraskans in six communities across the state in the summer of 2019 (before the economy was further affected by the coronavirus pandemic) to gauge their perceptions.

Whether respondents hailed from urban Omaha or rural Scottsbluff, and whether they worked directly in agriculture or in health care, local government or education, those interviewed were remarkably consistent and clear on the subject of trade policy and the state’s agriculture sector: the more international trade, the better.

Focus Group Cities

The big picture is not the only picture in the Nebraska economy

Macro-level statistics obscure the importance of Nebraska’s agriculture sector. The Bureau of Labor Statistics reports that manufacturing contributes more than twice as much as agriculture to Nebraska’s GDP (10.9 percent versus 4.9 percent, respectively). But within manufacturing, “food and kindred products” is the top category. The broader agricultural production complex includes processing but also transportation, warehousing, agriculture-related research, and other professional services such as IT, legal, insurance, and financial.

Thus, while Nebraska has a diversified economy and workforce, one in four jobs is directly or indirectly tied to the state’s agricultural production complex, according to UNL researchers. Some interviewees pointed to main street businesses like car dealerships as a barometer for agriculture, saying that farmers are more likely to purchase new cars or trucks when they have profitable years.

As the report notes, “Even if they do not hold one of those ag-related jobs, most Nebraskans likely benefit in some way from the revenues the sector generates. That may explain why so many of those interviewed, whether directly involved with agriculture or not, said they supported any trade policies that worked best for farmers, ranchers, and others associated with the agricultural production complex.”

Trade a most important foreign policy

Exports dominate the discourse on trade

The Nebraskans interviewed spoke about trade almost exclusively in terms of exports, perhaps not surprising for a state that consistently ranks highly in the production and export of many agricultural products from soybeans and corn to beef and beef products. Nebraska’s most important export markets are Canada and Mexico, U.S. free trade agreement partners.

The majority of those interviewed saw U.S. trade agreements as benefiting Nebraskan agriculture, in particular the U.S.-Mexico-Canada Agreement (USMCA) and the U.S. trade deal with Japan (as a second best alternative to the Transpacific Partnership, from which the U.S. withdrew in 2017). While many supported the President’s tough stance against China, they also worried about the potential for future lost market share due to shifting supply chains brought on by the trade war. In the voice of one interviewee, over the long run, the United States needs to “focus [more] on developing markets…and less…on picking a fight with China.”

The seeming invisibility of imports

Imports were rarely mentioned by those interviewed, whether from a consumer or supply chain perspective. Aside from one manufacturer who said that increased steel tariffs had put cost pressure on his inputs, most discussion of tariffs revolved instead around retaliation on U.S. agriculture exports, not the impact of U.S. tariffs on imports. This is not surprising: exports are celebrated in news releases and headlines. Import data is portrayed in the negative light of trade imbalances. Imports of intermediate goods make up 60 percent of global trade by some estimates, but in the form of parts and components for the production of final goods, they lack visibility.

U.S. import tariffs have likely affected consumer prices to some degree. In research prepared for the Yeutter Institute by Edward Balistreri of Iowa State University, tariffs imposed in 2018 and 2019 as part of the U.S.-China trade war may have cost Nebraska’s households as much as $600 per year through a combination of lost export opportunities, increased productions costs, and increased consumer prices. A potential doubling of tariff costs on imported items theoretically risked households near the lower bounds of the middle-income range falling out of the middle-income bracket while those tariffs were in place. Despite being a pocketbook issue, the cost of imports was notably absent as a topic of discussion across interviews.

View on China engagement

There is more than one “heartland”

The Carnegie Endowment conducted similar interviews and focus groups in Ohio in 2018 and Colorado in 2019. There are important nuances among and within these three states. On trade policy, Nebraskans were far more aligned in their views than Ohioans.

Nebraskans tend to view agriculture as the backbone of the state’s economy, leading to more consistent opinions on the beneficial role of trade. Ohio has a much larger manufacturing workforce that has experienced heavy losses in recent years, with trade policy and globalization often taking the blame. This perception has led to deep divisions over trade policy among those interviewed in Ohio.

In comparing the three states, the report notes that such “place-based economic considerations appeared to drive attitudes on the intersection of U.S. foreign policy with the perceived economic interests of America’s middle class.”

“I don’t trust Washington”

Unfortunately, where participants in all three states did seem to agree was in their mistrust of institutions and their sources of information regarding foreign policy.

Project participants consistently said they did not trust the news media or official Washington to provide unbiased information about trade and foreign policy. As a result, many said they do not always feel they have enough knowledge to develop well-informed opinions. They also do not believe that decisions about foreign policy are made with middle America’s economic interests in mind.

One Nebraska participant illustrated a common sentiment in expressing, “I don’t think anybody knows what the truth is and I don’t …trust Washington to tell me what the truth is.” If participants wanted to learn more about trade and foreign policy, they often said they did not know where to find trustworthy sources of information.

Quote about trust

How to amplify middle-class voices?

At a time of intense debate over what the aims of U.S. trade policy should be, such depth of perspective from Americans across the country is important. Do we need new structures to gather it?

The Office of the U.S. Trade Representative formally seeks public comment as part of its process to determine negotiating priorities and statutorily maintains 26 advisory committees to make sure U.S. negotiating objectives “reflect U.S. public and private sector interests.” The advisory system includes a committee designed for input from state and local level leaders. Yet these structures are neither visible nor accessible to most Americans.

Elected officials may of course offer input outside of these constructs. Nebraska Governor Pete Ricketts gave an example on an episode of the Yeutter Institute’s Trade Matters podcast:

“When there was a rumor that the United States was going to pull out of the South Korean Trade Agreement, I picked up the phone on a Friday afternoon to call our U.S. Trade Representative, Ambassador Lighthizer, to tell him how bad that would be for Nebraska,” Governor Ricketts said.

“He called me back on Sunday afternoon, so very responsive…he doesn’t always tell you what you want to hear, but certainly wanted to listen as I was talking about why South Korea was such an important trading partner.”

Place-based trade policies?

Governor Ricketts’ comments and the report findings reinforce a central conundrum of trade policy: it has disparate impacts on the economies of different U.S. states.

In their pursuit of the national interest, foreign policy professionals, including trade negotiators, understandably do not want to pick winners and losers or wade into domestic politics. But integrating more information about the economic experience of middle-class Americans into the trade policymaking process can help inform policy options that anticipate the losses — and local opportunities — from trade policy.

Meanwhile, what about those who said they wanted to learn more about trade and foreign policy, but did not know where to find information they could trust? They also reported that locally trusted leaders can play a key role in how people think about policies. Perhaps such leaders are a starting point for deeper conversations about trade.

Related in the series by The Carnegie Endowment on U.S. Foreign Policy for the Middle Class:

-Perspectives from Colorado

-Perspectives from Ohio

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Jill O'Donnell

Jill O’Donnell is a professor of practice and the director of the Clayton Yeutter Institute of International Trade and Finance at the University of Nebraska-Lincoln. She is the host of the institute’s Trade Matters podcast. She served on the research team for the report discussed in this article, along with colleagues from the University of Nebraska-Lincoln’s Bureau of Business Research and the University of Nebraska Public Policy Center, in partnership with the Carnegie Endowment for International Peace.

This article originally appeared on TradeVistas.org. Republished with permission.
customs

Customs Changes Course: No Longer Accepting Requests to Defer Duty Payments

On Friday, March 20, 2020, Customs announced that it was accepting requests for short-term relief from payment of estimated duties, taxes and fees due to the COVID-19 emergency, as discussed here.

Nevertheless, on March 26, 2020, Customs issued “Additional Guidance for Entry Summary Payments Impacted by COVID-19” that revised the information and policy in the earlier announcement. In its “Additional Guidance” Customs stated that it was no longer accepting requests for additional days for payment of estimated duties, taxes, and fees, but commented that CBP retains the right to allow additional days for payment in narrow circumstances, such as physical inability to file entry or payments, based on technology outages or port closures.

Single payments, daily and periodic monthly statement payments of estimated duties, taxes and fees that should have been tendered from 3/20/2020 through 3/26/2020, payment must be initiated by 3/27/2020. Trade members who did not pay Customs for estimated duties, taxes and fees from 3/20/2020 through 3/26/2020 must initiate payment by 3/27/2020.

Separate from reversing its policy on a limited number of “additional days” for duty relief, we also reported that CBP was considering a more extended 90-day tariff relief plan. Recent reporting, though, indicates that this 90-day tariff relief plan has been shelved. We understand that a number of senior administration officials (including Treasury Secretary Mnuchin and economic adviser Larry Kudlow) were in favor of granting the relief, but were outweighed by others within the Administration (Peter Navarro) as well as influential individuals in the private sector aligned with more protectionist policies.

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Robert Stang is a Washington, D.C.-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Customs group.

 Julia Banegas is an attorney in Husch Blackwell LLP’s Washington, D.C. office.