Kayleigh Scalzo · April 2011
79 GEO. WASH. L. REV. 926 (2011)
In the category of employment-based (“EB”) immigration, the INA gives significant preference to highly skilled and highly educated aliens at the expense of unskilled and skilled aliens. The statute uses language such as “extraordinary ability,” “sustained national or international acclaim,” and “exceptional ability” in describing the type of applicants that the United States permits and encourages. Because immigrants of this caliber are the exception rather than the norm, the statute creates a disconnect between the immigration supply and demand curves and evidences a refusal to acknowledge the continuous stream of unskilled foreign nationals crossing U.S. borders.
This Note identifies two main flaws with EB visa allocations: insufficient immigration opportunities for skilled and unskilled EB immigrants and a labor certification process so stringent and unrealistic that it invites fraud. This situation is problematic for a number of reasons: it occasions “brain drain”16 and undermines U.S. foreign policy; it runs contrary to the economic interests of both aspiring immigrants and the U.S. workforce; and its valorization of—and preference for—the highly educated, wealthy, and well-situated is at odds with the fundamentals of American law. This Note argues that, as a first step toward immigration reform, the percentage of EB visas allocated to skilled and unskilled workers should be increased relative to other EB categories, and the labor certification requirement should be waived for unskilled workers. It does not, however, advocate a higher overall number of EB immigrants.
Part I provides an overview of the state of EB immigration law, including numerical allocations and caselaw illustrating the category-based standards as applied. Part II examines the domestic and international ramifications of a strongly meritocratic system. Part III proposes a less stratified and more pragmatic arrangement of visa allocations and explains why this reform is appropriate, even in a period of economic uncertainty. Finally, Part IV demonstrates why this reapportionment of visa numbers is the optimal solution in comparison to two alternatives.
