Restricting Innovation: How Restrictive U.S. Visa Policies Have the Potential to Deplete Our Innovative Economy

• Author: Michael R. Traven
• Position: J.D., Capital University Law School, 2006
• Pages: 693-740

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Introduction

The year is 1990 and you are a young student from abroad who is getting ready to finish high school. You would like to attend a university in another country, preferably one that is English-speaking. You love science and mathematics and apply to five of the world's best universities in those disciplines. Imagine you were accepted to all five, in several different nations, but the school that you really want to attend is in the United States.

You apply for and quickly receive your visa to the U.S. Almost immediately you become fascinated with computers and spend all of your time improving your computing skills. Once you received your undergraduate degree in computer science you applied to and were accepted at one of the nation's finest graduate schools. While there, you and a classmate discovered some of the intricacies of the Internet and have some ideas of how to improve it. After receiving your master's degree, you and your classmate decide to start a new Internet company, which you both believe could change the way the Internet is operated.

In reality, this imaginary student's name is Sergey Brin, his classmate's name is Lawrence Page, and the company that they created is Google.¹ Google has, in fact, changed how the Internet operates,² and it has brought billions of dollars in revenue to the U.S. economy.³ In 2005Page 694 alone, Google had approximately six billion dollars in revenue.⁴ Additionally, Google has over 5,000 employees, with the bulk of them located in California.⁵

Sergey Brin has had an enormous economic impact on the U.S. What if Brin had been unable to come to the U.S. because he had encountered visa problems before ever getting here? Even more troubling, what if he had chosen to attend college and graduate school in the United Kingdom or Australia and now that nation was reaping the economic benefits of his innovation? Clearly, the U.S. economy would have suffered the loss of a valuable commodity-Brin's innovative ability.

Intellectual innovation will become even more important to the future of our nation's economy as global economies shift their focus from the industrial to the creative.⁶ As Dr. Joseph Bordogna, Deputy Director and Chief Operating Officer of the National Science Foundation, remarked early in 2004,

Civilization is on the brink of a new industrial world order. Prospering in an increasingly fierce global marketplace will not be accomplished by those who simply make commodities cheaper and faster than the competition. They will be those who develop talent, techniques, and tools so advanced that there is no competition. Assuring our future requires a workforce so well trained and capable, so agile and up to date, that it thrives on the continuous technological change and fast-paced progress that are an absolute certainty in coming years.⁷

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In this evolving economy, the most important resource will be a person's mind because the scarcest commodity will be good ideas.⁸ In order to secure world economic competition in the future, the U.S. will need to secure the best and brightest individuals from around the world.⁹ While the U.S. has historically been the most effective country at attracting the best individuals from the global talent pool, it is beginning to lose its competitive edge.¹⁰

The most effective lure for the U.S. to attract such creative and bright people from around the world has been its world-class universities.¹¹ In 2003, however, the number of foreign students enrolled in colleges and universities in the U.S. dropped for the first time in more than three decades.¹² Because many of the foreigners that decide to attend school here eventually enter the U.S. workforce,¹³ a decline in the number of foreign students coming to the U.S. could be detrimental to our economic success in the future because we will lose valuable intellectual capital. To prevent future economic setbacks, the U.S. government needs to take steps to redress the decline in foreign student enrollment. The first step to curb this problem is to identify the major causes of the decline.

This Comment posits that U.S. visa policies implemented since the September 11, 2001 tragedy are too restrictive and are primarily to blame for the decline in international student enrollment in U.S. academic institutions. A further cause of this decline has been the increased efforts of other countries to attract the world's most intelligent individuals. If these two issues are not addressed, it could negatively impact our national economy. Because of the importance of attracting and retaining the world's brightest people, the U.S. is destroying its chances of securing the world's most valuable future commodity-intellectual innovation-by making it more difficult to obtain a visa to study here.

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To lay the foundation for this discussion, Part I of this Comment examines the economic importance of noncitizens to our nation. It looks at not only how noncitizens have had a positive impact on our universities, but also how they have the future potential to make a serious impact on our nation's economy. Part II shows why there has been a decline in the amount of foreign intellectual capital coming to the U.S. It explains that while international competition for global talent has a direct impact on our ability to attract these people, the main source of the decline has been our restrictive visa policies. The section concludes by showing how our economy could be harmed by a decline in foreign intellectual capital. Part III then suggests methods that the U.S. could implement into its current visa policies that would stop deterring foreign intellectual capital from coming to our nation.

I Economic Benefits of Noncitizens

The United States has a rich history of attracting foreign individuals who come here to achieve economic gain.¹⁴ But our nation has also actively pursued foreigners as a commodity for our nation's economy, especially in the form of intellectual capital.¹⁵ For example, in 1791, U.S. Secretary of the Treasury, Alexander Hamilton, sent agents to Scotland toPage 697 persuade skilled workers to come to the U.S. to work in the factories.¹⁶ In 1789, Samuel Slater came to America (on his own initiative) with the plans for a spinning jenny conceptualized, and was the first to establish a cotton factory in Pawtucket, Rhode Island.¹⁷ A modern day Samuel Slater is someone like Google's Sergey Brin. Another is Sabeer Bhatia, from Bangalore, India, who came to the U.S. and helped to found Hotmail, a company that was sold to Microsoft for $400 million in 1997.¹⁸

Innovations from foreigners have been essential to our nation's economic growth.¹⁹ One commentator recently noted that immigrants and noncitizens have "helped power American growth since the dawn of the Republic," which in turn has helped make the U.S. "innovative infrastructure second to none."²⁰ But to gain this innovative edge, the U.S. has had to attract those with the greatest intellectual capacity.²¹ This has been accomplished primarily through the use of its colleges and universities.²² Attracting these innovators to attend our academic institutions is a vital step in our ability to retain them after their graduation-a necessity for them to apply their innovations to our economy.²³ However, international students have also had a major impact on our economy while they are still attending school in the U.S.

A Impact of International Students on the U.S. Economy

A significant number of the students attending U.S. universities, both in undergraduate and graduate programs, are international students.²⁴ In the 2002-2003 school year alone, nearly 600,000 foreign students were enrolled in U.S. academic institutions, accounting for 4.6% of the totalPage 698 nationwide enrollment.²⁵ As Figure 1 demonstrates, with the exception of 2004, foreign student enrollment has steadily increased since the mid-1970s.²⁶

Figure 1 ²⁷

[ GRAPHICS ARE NOT INCLUDED ]

In the 1979-1980 school year, approximately 290,000 international students were enrolled in U.S. institutions, representing about 2.4% of the total nationwide enrollment.²⁸ A decade later, the total enrollment was nearly 387,000, a 35% increase in just ten years.²⁹...