Academic journal article Fordham Urban Law Journal

Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System

Academic journal article Fordham Urban Law Journal

Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System

Article excerpt


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.


   [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)


   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
           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
        C. Bring Consistency and Clarity to the EB-1-1 and EB-1-2
        D. Return Flexibility to the National Interest Waiver


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. …

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