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 II. GETTING THE "IN" IN CANADA, AUSTRALIA, THE UNITED KINGDOM, AND THE UNITED STATES A. Canada's Points System B. Australia's General-Skills-Migrants System C. The United Kingdom's Points-Based System D. The United States' Employment-Based System III. DISSECTING THE DOWNSIDES OF POINTS SYSTEMS A. Human Rights Concerns B. Economic Concerns C. Points Systems Results 1. Highly Skilled Immigrants Can Benefit the Receiving Country 2. Caveats: When Point Systems Do Not Produce Advantages IV. SUGGESTIONS FOR A U.S. POINTS SYSTEM A. Tweaking Points: Designing Points Categories with Labor Demand in Mind B. A Helping Hand: Offering Immigrant Assistance Post-Entry C. Reducing Socioeconomic Discrimination V. A MEANS TO AN END: A U.S. POINTS SYSTEM CAN HELP THE UNITED STATES BETTER COMPETE IN A GLOBALIZED WORLD 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 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 receiving country's labor needs. (14) Ultimately, however, a points system is effective in increasing the number of skilled immigrants, who not only fill labor shortages, but also start new businesses and generate new jobs and wealth. (15)

First, this Note outlines examples of points systems as implemented in Canada, Australia, and the United Kingdom, and then briefly introduces the current economic-immigration scheme in the United States as a counterpoint to those systems. This Note then analyzes potential problems that a points system can create. Finally, this Note concludes the United States should implement a points system of its own and makes suggestions for implementing a successful points system that could avoid some of the pitfalls of points systems abroad.

2. GETTING THE "IN" IN CANADA, AUSTRALIA, THE UNITED KINGDOM, AND THE UNITED STATES

   Employment-based immigration is controlled through points systems in Canada, Australia, and the United Kingdom. (16) While these point systems share similar characteristics, (17) their differences are important. This Part introduces each of these countries' points systems and contrasts those systems with the employment-based immigration system of the United States.

   1. Canada's Points System

      Canada led the world in adjusting its immigration policies to better capture human capital by implementing its points system. (18) Points are awarded to prospective immigrants for various factors. (19) Many of these factors directly relate to the prospective immigrant's impact on the labor market, such as whether an applicant has arranged employment and the applicant's prior work experience. (20) Canada awards several points for human-capital attributes, including education, language proficiency, and age. (21)

      Prospective immigrants must obtain sixty-seven points to be eligible for a visa. (22) An applicant gains points under various points categories that have a maximum point value. (23) For example, completion of secondary school earns an applicant five points out of a possible twenty-five under the education category. (24) Other major points categories include education and training factors, language proficiency, work experience, age, and adaptability factors. (25)

      Using this straightforward rubric, a prospective immigrant can easily evaluate his or her chances for admittance with a high degree of certainty. (26) Canada even offers a simple form on its immigration website that the applicant accesses to answer a few short questions about age, net worth, education, and if he or she has a Canadian job offer. (27) The applicant receives a response regarding his or her eligibility for a visa within twenty-four hours. (28)

      Canada's points system also emphasizes transparency by being straightforward as to what characteristics it values in prospective economic immigrants. (29) The point categories and their relative values make it clear, for example, that Canada prefers younger immigrants because its points system calls for a point deduction for applicants over forty-five years of age. (30)

      Despite these advantages, Canada's point system is not completely free from discretion and uncertainty. Canada amended its immigration law in 2008 to state that "the visa may be issued" upon meeting certain criteria, rather than "the visa shall be issued." (31) This change makes visa issuance more subjective, since an applicant that obtains the requisite points and meets the other criteria for a visa may nonetheless be passed over for an equally qualified applicant. This change has been criticized as '"politicization' of the immigration system." (32)

      There are also special classifications of immigrants that have much lower point thresholds for entry. (33) Immigrants classified as "entrepreneurs," for example, must obtain only twenty-five points to be eligible for entry. (34) Classification in these special categories relies on less objective criteria than the points rubric itself because it depends on specific definitions that are open to interpretation. An "entrepreneur" is one "who intends and has the ability to establish ... business or commercial venture in Canada that will make a significant contribution to the economy." (35) The latter part of this definition lends itself to far more discretion than the more objective criteria, such as whether or not an applicant has an advanced degree. Immigration officials, therefore, still possess a degree of discretion to place an applicant in these special categories.

      Canada's system has produced mixed results. While its points system has been effective in increasing the overall number of skilled immigrants entering Canada, not all of those skilled immigrants have been able to contribute to Canada's labor market to their fullest potential. (36) Because Canada admits many highly skilled immigrants without ensuring that they were likely or able to find a job, many of these immigrants face unemployment or underemployment. (37) Thus, Canada's points system may not effectively enhance wealth or entice skilled immigrants, because they may worry about underemployment post-entry. (38)

      One final, but not unsubstantial, criticism of Canada's point system is that it implicitly disadvantages applicants from lower socioeconomic backgrounds. (39) The system explicitly prefers skilled workers and professionals, (40) who tend to be wealthier. (41) While scholars often gloss over the disparate results based on an immigrant's socioeconomic status, (42) they do exist. (43) Thus, while outright class discrimination is not likely Canada's goal, the practical burden on immigrants from lower socioeconomic backgrounds should be noted, especially given that the majority of Canada's immigrants enter through the points system. (44)

      Overall, however, Canada's points system...