The Point of a Points System: Attracting Highly Skilled Immigrants the United States Needs and Ensuring Their Success

• Author: Carla Tabag

271

The Point of a Points System:

Attracting Highly Skilled

Immigrants the United States

Needs and Ensuring Their Success

ABSTRACT

In a globalizing world, labor is an increasingly mobile and

competitive resource. Responding to this changing labor market,

countries like Canada, the United Kingdom, and Australia have

adopted points systems with the goal of attracting talented,

highly skilled immigrants. In the United States, however, much

of the national focus on immigration remains on deterring

illegal immigration rather than attracting immigrants that the

United States needs to remain competitive in a globalized

world. But attracting skilled immigrants is only one ingredient

to a successful points system; a country must also ensure those

immigrants are successful and use their talents to the fullest

potential post-entry. This Note proposes the United States enact

its own points system, but with a narrower goal than other

systems: attracting highly skilled immigrants, while ensuring

their success in the United States.

TABLE OF CONTENTS

I. POINTS SYSTEMS: AN IMMIGRATION INNOVATION ........ 272

II. GETTING THE “IN” IN CANADA, AUSTRALIA,

THE UNITED KINGDOM, AND THE UNITED STATES ........ 274

A. Canada’s Points System ..................................... 274

B. Australia’s General-Skills-Migrants System ..... 278

C. The United Kingdom’s Points-Based System .... 281

D. The United States’ Employment-Based

System ................................................................. 283

III. DISSECTING THE DOWNSIDES OF POINTS SYSTEMS ....... 285

A. Human Rights Concerns .................................... 285

B. Economic Concerns ............................................. 288

C. Points Systems Results ....................................... 291

1. Highly Skilled Immigrants Can Benefit

the Receiving Country ................................. 292

2. Caveats: When Point Systems Do

Not Produce Advantages ............................. 293

IV. SUGGESTIONS FOR A U.S. POINTS SYSTEM .................... 294

272 vanderbilt journal of transnational law [vol. 46:271

A. Tweaking Points: Designing Points

Categories with Labor Demand in Mind .......... 294

B. A Helping Hand: Offering Immigrant

Assistance Post-Entry ......................................... 297

C. Reducing Socioeconomic Discrimination .......... 298

V. A MEANS TO AN END: A U.S. POINTS SYSTEM CAN

HELP THE UNITED STATES BETTER COMPETE IN

A GLOBALIZED WORLD ................................................... 301

I. POINTS SYSTEMS: AN IMMIGRATION INNOVATION

Traditionally, sovereign nations have enjoyed wide latitude in

determining whom to welcome into their lands. After all, drawing

lines in the sand to delineate “us” from “them” is one of the most

important rights that make up sovereign power.1 How nations decide

to exercise this sovereign power, however, has undergone a dramatic

change in the past quarter century—changing both the means and

the ends of immigration policy.2

The “globalizing” world now views humans as a form of capital to

be captured like any other resource.3 In response, countries have

begun implementing immigration points systems to better capture

this potential resource.4 Canada, the United Kingdom, and Australia

have developed their points systems to attract skilled migrants.5 In

1. See HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF

IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES 5 (2006) (“[A] democracy must

have the power to shape and preserve itself . . . [and] to grant or refuse membership to

newcomers.”); Joy M. Purcell, A Right To Leave, but Nowhere To Go: Reconciling an

Emigrant’s Right To Leave with the Sovereign’s Right To Exclude, 39 U. MIAMI INTER-

AM. L. REV. 177, 178 (2007) (noting that the right to control who enters a country goes

to the very heart of sovereign autonomy).

2. See Paschal O. Nwokocha, American Employment-Based Immigration

Program in a Competitive Global Marketplace: Need for Reform, 35 WM. MITCHELL L.

REV. 38, 59–61 (2008) (noting that a globalizing world has changed the way countries

utilize immigration policies).

3. See id. at 59–60 (“In the contemporary global economy, human capital is

also increasingly mobile so both states and companies must now compete for talent in a

worldwide market.”).

4. See Chris Gafner & Stephen Yale-Loehr, Attracting the Best and the

Brightest: A Critique of the Current U.S. Immigration System, 38 FORDHAM URB. L.J.

183, 187 (2010) (noting that since 2000, nearly two dozen countries have implemented

serious immigration reforms to capture human capital).

5. See id. at 187–91 (discussing Canada’s and the United Kingdom’s

immigration points systems); see also Stephen Yale-Loehr & Christoph Hoashi-

Erhardt, A Comparative Look at Immigration and Human Capital Assessment, 16 GEO.

IMMIGR. L.J. 99, 118–19 (2001) (discussing Australia’s “skilled migration” system).

2013] the point of a points system 273

contrast, the United States has stood still, choosing to retain its old

employment-based immigration regime.6

Points systems all share a similar goal of attracting human

capital in a procedurally simple manner that, in theory, increases the

overall wealth of the receiving country.7 As the name suggests, points

systems use a rubric of point categories to determine an immigrant’s

eligibility for entry.8 Predetermined amounts of points are awarded

for attributes that the receiving country determines are indicators of

human capital, such as advanced degrees, work experience, and

language proficiency.9

In addition to enhancing a country’s wealth, points systems also

offer procedural simplicity and transparency.10 The receiving country

benefits from the efficiency and reduced costs of a simplified

admissions procedure, while the prospective immigrant avoids a

costly expenditure of time and effort navigating a bureaucratic maze

of immigration policy.11

This new focus on human capital marks a major shift in

immigration policy that has traditionally been dominated by family

reunification, humanitarian, and other noneconomic goals.12 This

immigration innovation, however, also raises new concerns. Points

systems may be in tension with both human rights and free-market

ideals, which generally advocate for less restrictive immigration

policies.13 There is also concern that points systems are harmful to

the receiving country’s labor market if the systems are conceived of as

a device for human-capital accumulation without regard to the

6. Yale-Loehr & Hoashi-Erhardt, supra note 5, at 129–31 (noting the United

States considered adopting a points system, but the idea was not legislated).

7. See id. at 100 (“[T]he purpose of selecting economic-stream migrants is to

increase the host country’s wealth and to achieve a net economic gain for the entire

population.”).

8. See Nwokocha, supr a note 2, at 50–55 (explaining how the points system

works in the United Kingdom and Canada).

9. See id. at 50–51 (“Applicants score points based on their attributes,

including age, education, qualifications, previous earnings, and experience in the

United Kingdom; their English language abilities; and their funds available for fiscal

self-maintenance.”).

10. See Yale-Loehr & Hoashi-Erhardt, supra note 5, at 108 (noting that a

points system enhances transparency and simplicity “in that it allows the migrant to

assess his or her own chances of being able to immigrate” and allows policymakers and

voters to be “better able to understand how immigrants are being selected”).

11. See id. (providing a table of “the composition of Canada's immigrant stream

as well as the planned levels of immigration”).

12. See id. at 100 (discussing how the goals of points systems are distinct from

family reunification and humanitarian immigration systems).

13. See Tomer Broude, The Most-Favoured Nation Principle, Equal Protection,

and Migration Policy, 24 GEO. IMMIGR. L.J. 553, 556–63 (2010) (discussing the

interaction between economic theory and human rights in immigration policy).