Attracting the best and the brightest: a critique of the current U.S. immigration system.

• Author: Gafner, Chris

ABSTRACT

The United States has long benefited as a leader in attracting the "best and brightest" immigrants. However, the world has changed since the U.S. immigration system's last major modification in 1990. The United States is no longer the primary destination for many talented immigrants. Many other nations have enacted immigration systems meant to attract the best and brightest immigrants. These immigration systems are often point-based and allow potential immigrants to quickly determine eligibility. By comparison, the U.S. immigration system is slow and complicated. Many now question the United States' ability to attract talented immigrants.

This Article first examines how other national immigration systems entice the best and brightest immigrants. It then examines the current U.S. immigration system and its evolution since the Immigration Act of 1990. Finally, the Article suggests how the United States can improve its immigration system to continue to attract talented immigrants.

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[Immigrants] contribute greatly to the vitality of the economy. They are highly motivated, willing to work and venture, and bring in fresh insights. Immigrants have made a disproportionate contribution to dynamism of the economy because of these characteristics ever since our forefathers first landed in the New World. (1) TABLE OF CONTENTS

Abstract Introduction I. The Growing International Competition for Talent A. Canada's Point System B. The European Union's Blue Card C. The United Kingdom's New Point Scheme D. Indian and Chinese Incentive Programs II. Current U.S. Immigration Policy A. The EB-1-1 and EB-1-2 Immigrant Status 1. What do the Regulations Mean? 2. The Weinig Approach 3. The Circular Reasoning Approach 4. The Proposed 1995 Regulations 5. Kazarian v. U.S. Citizenship and Immigration Services. 6. Do the Regulations Reflect IMMACT90's Congressional Intent? 7. The Persistent Confusion B. National Interest Waiver 1. The INS Attempts to Define "National Interest" 2. In re New York State Department of Transportation 3. Does NYSDOT Reflect Congressional Intent? III. Recommendations A. The U.S. Point System 1. A Lottery for Highly Skilled Immigrants? B. Should a U.S. Ph.D. Diploma Lead to Permanent Residency? C. Bring Consistency and Clarity to the EB-1-1 and EB-1-2 D. Return Flexibility to the National Interest Waiver Conclusion INTRODUCTION

The United States has long sought to attract the "best and brightest" immigrants. (2) These highly talented immigrants have contributed to the economic, scientific, and cultural growth of the United States. (3) Increasingly, however, many other countries are taking action to attract the best and brightest to their own country. This increased international competition is challenging our nation's continued ability to attract these talented immigrants.

The most recent significant modification to the U.S. employment-based immigration system was the Immigration Act of 1990 ("IMMACT90"). (4) IMMACT90 created a five-tiered employment-based immigration system that includes three distinct categories to ensure that the best and brightest have a meaningful opportunity to gain permanent residency in the United States. (5) The first category is for individuals with extraordinary ability in the sciences, arts, education, business, or athletics (colloquially referred to as "EB-1-1" status). The second category is for outstanding professors and researchers ("EB-1-2" status). The third category is the national interest waiver ("NIW"), which is for those individuals whose employment is in the United States' national interest.

Since IMMACT90's enactment, the international competition for talent has increased. The world has entered an era in which more countries are gaining economic and cultural clout. Many countries are launching ambitious immigration programs meant to attract the best and brightest. Additionally, countries long seen as sources for talented immigrants are now seeking to keep talented nationals home. Many question whether the U.S. immigration system is correctly positioned to compete against the growing international competition. (6)

This Article first examines the current global competition for talent and how other key global players are attracting the best and brightest. Second, the Article examines the current U.S. immigration system and the congressional intent behind IMMACT90. (7) Third, the Article recommends how to improve the U.S. immigration system to help the nation attract foreign nationals who are most likely to contribute to the national interest. (8)

1. THE GROWING INTERNATIONAL COMPETITION FOR TALENT

   The world was a different place when IMMACT90 was enacted. In 1990, the United States was the sole military, cultural, and economic super power. The Soviet Union was about to splinter, China had just put down the Tiananmen Square protests, India had a stagnant economy, and Europe was over a decade away from the Euro's first circulation.

   The international economic tide has risen since that time. The United States does not hold the same hegemonic position today that it held twenty years ago. As Fareed Zakaria recently highlighted, the United States no longer has the world's tallest building, richest individual, largest publicly traded corporation, or largest movie industry. (9)

   In this era characterized by the "rise of the rest," (10) many other countries are competing to attract the best and brightest immigrants. Only a few countries methodically sought international migration for economic enhancement before 2000, (11) whereas nearly two dozen do today. (12) Canada was the first country to implement an immigration point system and remains an aggressive attractor of international talent. (13) The European Union has proposed a "Blue Card" to attract highly skilled noncitizens. (14) The United Kingdom recently created an objective, systematic point system. (15) Even smaller countries like Singapore and South Korea are competing for immigrant talent. (16) Additionally, China and India are seeking to retain and attract talent, rather than have their most talented citizens immigrate to other countries. (17)

   1. Canada's Point System

      In 1967, Canada created the first immigration "point system" to provide a systematic means of attracting immigrants,is Since then, Canada has been an "aggressive player" in attracting talent to its shores. (19) A majority of Canadian immigrants are economic immigrants, (20) and Canada admitted more employment-based immigrants than the United States in 2009--153,458 employment-based Canadian immigrants compared to 144,034 U.S. immigrants. (21) Highly skilled noncitizens represent seven percent of the Canadian workforce. (22)

      An immigration point system is "first and foremost a human-capital-accumulation program that allows countries to emphasize the applicant characteristics they deem the most valuable for economic growth." (23) Points are awarded based on criteria indicative of a foreign national's potential contribution to the country. It is considered the best means for determining whether a prospective immigrant will contribute to a country over the immigrant's entire life. (24)

      The Canadian point system looks at (in decreasing level of importance) an applicant's education, proficiency in French and English, experience, age, arranged employment in Canada, and adaptability. (25) The point system allows potential immigrants to easily compute whether they qualify for Canadian immigrant status. Canada even offers a calculator to help potential immigrants determine eligibility. (26)

      Other countries have emulated Canada's success in attracting talented immigrants. The point system is a "growth area" in global immigration policy. (27) As point systems become more widely adopted, more countries will offer highly skilled immigrants easily understood and objective standards for determining immigration eligibility.

   2. The European Union's Blue Card

      In 2007, the European Union ("E.U.") proposed the "Blue Card." (28) Its purpose is to create a more systematic and appealing environment for talented foreign nationals. (29) The E.U. knew the restrictions and inequities between its member nations made it less appealing than other world powers. In announcing the Blue Card, the European Commission emphasized that highly skilled foreign nationals make up only 1.7 percent of the European workforce (compared to seven percent in Canada and three percent in the United States). (30)

      The E.U. has yet to finalize the Blue Card's specifics. This lack of agreement is not due to a lack of desire to attract highly skilled workers. Rather, individual E.U. countries feel more capable of attracting highly skilled workers as individual countries than as a unified block of countries. Put differently, individual European countries feel they are competing against both European and non-European countries in attracting talented immigrants. (31)

      It is clear that European countries are keen on competing for the best and brightest immigrants. Even if the Blue Card remains stalled, individual European countries will create national immigration systems meant to attract the best and brightest to individual European countries. Many European countries have already taken action. (32)

   3. The United Kingdom's New Point Scheme

      The United Kingdom is not waiting for the Blue Card. In 2008, the United Kingdom revamped its employment-based immigration system by adopting a five-tiered immigration point system. (33) Under the new system, highly skilled and talented workers may obtain immigration through the Tier I--General category. (34) The Tier 1--General category allows foreign nationals to self-petition to work in the United Kingdom without an employment offer. (35)

      Twenty percent of the required points are earned by understanding English and having adequate financial means. (36) The remaining points are granted based on age, qualifications, previous earnings, and experience in the...