ONE OF THE MOST PRESSING POLITICAL ISSUES for many migrant-receiving countries has often been controlling and managing migration. However, with the intensifying competition for the world’s best and brightest, a large number of countries now find themselves under pressure to introduce reforms friendly to highly skilled migrants. The two main groups of migrants at which these reforms are aimed are skilled migrants and foreign students.
PRECURSORS AND TREND-SETTERS
US
In 1965 the US congress passed amendments to the Immigration and Nationality Act 1952 that gave birth to skills-based immigration and started the competition for talent.
Today the US still offers many immigration bridges to highly skilled migrants, but all of them remain job-led, with the exception of the EB-1 green card. Even the EB-1 is far from ideal, as it is only open to an ‘elite’ migrant population with extraordinary abilities. To qualify, a migrant must be able to show abilities supported by sustained national or international acclaim. With a maximum of 12 Nobel Prizes awarded each year, this migration route is unlikely to place the US at the forefront of the race in terms of numbers.
The principal channel of highly skilled migration to the US is the H-1B visa. The visa is job-led and subject to an annual quota. The quota has been maintained at 65,000 since 2003. This year the entire quota was exhausted before the end of the first day on which applications were accepted. Proponents of this visa find it hard to reconcile the dichotomy between the spirit of the scheme, which is to attract highly skilled migrants, and the imposition of a quota.
Foreign students graduating from a university in the US may apply to use the optional practical training (OPT) scheme, which can be attached to their student visa. If used, the OPT permits a foreign graduate to work in the US for up to a year.
Foreign nationals wanting to apply for US citizenship must first obtain a permanent resident card, also known as a green card. A migrant must have held green card status for a minimum of five years before they can apply for naturalisation. Although there is no minimum residence requirement for obtaining a green card, foreign nationals often find that their applications take years due to the complex and protracted nature of the process.
With its Byzantine immigration system, the US seems to be losing the race for the world’s best and brightest. In the face of predictable, ever-increasing worldwide competition for highly skilled migrants in the next few decades, immigration reformers argue that the US must reconsider its immigration strategies if it is to effectively attract and/or retain the putatively desirable.
CANADA
After the US’s initial effort, the next major step in the genesis of the struggle for talent occurred in 1967 when Canada introduced the first ‘points-based system’, a set of admission criteria for the highly skilled that set the tone of future schemes.
Today skilled workers need to score 67 points under the points-based system to be eligible for Canadian permanent residence. Although the scheme is not necessarily job-led, criteria related to a migrant’s occupation are at its core. Canadian immigration officials consider a migrant’s education, training, current and past employment, skills and experience to assess their suitability. Points are also awarded for language skills (English and/or French), age, and adaptability, which includes previous work or study in Canada, arranged employment, relatives residing in Canada, and a partner’s education.
Under the Post-Graduation Work Permit Program, foreign students who have graduated from a Canadian university can apply for a non-job-led work permit within 90 days of graduation. The programme, which was subject to an expansion in April, now allows graduates to remain for up to three years.
Aiming to make the Canadian system even more attractive and accessible, in August 2008 Diane Finley, Minister for Citizenship and Immigration, announced the details of the Canadian Experience Class, a proposed new avenue of immigration. Unlike other existing settlement programmes, this new scheme will allow an applicant’s Canadian experience to be considered a key selection factor. The Canadian Experience Class will cater for certain temporary foreign workers and foreign student graduates with managerial, professional, technical or trade work experience, allowing them to apply to become permanent residents and eventually Canadian citizens. All applicants, depending on their occupational skill level, will be required to demonstrate either basic or moderate language skills.
As a general rule, a foreign national wishing to naturalise as a Canadian national must have lived in Canada for at least three years out of the four years preceding their application, and must have been settled in Canada for at least two years.
It is hoped that the recent and proposed changes to the Canadian Immigration and Refugee Protection Act (2001) will improve the Canadian immigration system by making it even more flexible and responsive to its labour market needs. The objective of these changes is to make Canada the destination of choice for highly skilled migrants.
AUSTRALIA
Australia’s points-based system offers both a sponsored and an independent route to permanent status. The 120 points required are earned through qualifications, work experience, age and English language skills. This route is not available to migrants who are over 45 years of age.
Graduates who have completed their study in Australia and wish to remain in the country to work are expected to apply for a general skilled migrant worker’s visa under the points-based system. For those who do not qualify at the outset, Australia offers a graduate (temporary) visa that allows students to remain in Australia for 18 months to gain experience and/or improve their English language skills with a view to meeting the 120-point pass-mark to qualify for a general skilled migrant worker’s visa.
In April this year, hoping to increase its attractiveness, Australia streamlined its process so that student visa recipients are automatically granted permission to work up to 20 hours a week during term time without having to apply separately.
Foreign nationals who wish to naturalise and who became permanent residents on or after 1 July 2007 must have lived lawfully in Australia for at least four years before their application for naturalisation.
Although often described as draconian, the Australian immigration system aims to be objective and transparent. When it comes to attracting highly skilled migrants while concurrently deterring the less sought after, the Australian system is thought by many countries to be a model to follow.
SINGAPORE
With its aspirations to become a major player in a globalised world, Singapore has based its main economic strategy on being home to a highly skilled workforce. Besides investing heavily in information technology and human capital to meet global competition, it has focused on developing Singapore into the ‘talent capital’ of the global economy.
To reach its goal, Singapore has liberalised its immigration policies, making it easier for skilled migrants to gain permanent residency.
Until recently, foreign workers needed to be sponsored by an employer before they could obtain the right to work in Singapore. Now, however, in its bid to become the world’s ‘talent capital’, Singapore has thrown open its doors to highly skilled migrants via the personalised employment pass (PEP) scheme. Unlike the normal employment pass, the PEP is not employer-specific and is granted on the strength of the migrant’s own merit. Under this scheme, migrants are allowed to remain and work in Singapore for five years. During these five years a PEP-holder must earn an annual fixed salary of at least S$30,000 (£12,500) and cannot remain unemployed for more than six months. To qualify under the scheme migrant workers must show that their last-drawn fixed monthly salary was of a minimum of S$7,000 (£2,900) and that they are former holders of normal employment passes.
Singapore does not operate a system designed to allow graduating students to work. Foreign graduates are required to obtain employment passes if they wish to remain in Singapore.
EUROPEAN CHALLENGERS
Attempting to attract highly skilled migrants, a number of countries, including the UK, Ireland and the Netherlands, have followed the examples of Canada and Australia by implementing new, open immigration routes aimed at migrants rather than their prospective employers. Under these schemes, foreign talent wishing to migrate or temporarily relocate to these countries can do so without having to be sponsored by an employer. Instead migrants are selected via an objective test based on their ability to contribute to the growth of the host country’s economy.
UK
Recognising that competition for talent is fierce, in 2002 the UK unveiled its Highly Skilled Migrant Programme (HSMP), which relied on a points-based system with an emphasis on education qualifications and work experience, but also took into account an applicant’s past earnings and previous professional achievements. The programme was amended in 2006 and was recently replaced by the Tier 1 (General) Migrants scheme.
The new scheme, albeit very similar to its ancestors, appears to have been designed for a specific audience. Indeed, the English language and, in particular, the maintenance requirement (a minimum of £2,800, which must have been held for at least three months before the application is filed) automatically restrict access to the scheme. Many highly skilled migrants from emerging economies and countries will not be in a position to meet the maintenance requirements without borrowing.
On the other hand, the newly introduced post-study work visa, which replaces the international graduate scheme, has made the UK a more attractive destination for foreign students. Under this new programme, students who have graduated in the UK can reside and work there for a period of up to two years after graduation, without restrictions.
As a general rule, workers will have to show legal and continuous residence in the UK for five years before they qualify for permanent residency. Subject to meeting the residence requirements and other criteria, a settled worker may be able to apply for citizenship a year later.
The changes to the HSMP, in particular with regard to the maintenance requirements, are likely to be prohibitive to many applicants. Furthermore, with so few UK employers registered under the new points-based system and therefore able to sponsor foreign workers, skilled migrants with little means will simply have to look elsewhere for the time being.
By mirroring the Australian system it was hoped that the UK would remain a serious contender in the race for talent, while decreasing its appeal to the unskilled. Although it is still too early to post the results of the race, the lack of enthusiasm and support for the scheme by UK employers and immigration practitioners is anything but promising.
Ireland
In February 2007 Ireland’s Minister for Enterprise, Trade and Employment launched the implementation of new employment permit arrangements. The Working Visa/Work Authorisation Programme, which was the earlier Irish attempt at attracting highly skilled migrants, was replaced by a green card permit scheme.
The green card is instrumental in responding to the Irish labour market’s needs efficiently, in that it provides employment authorisation to highly skilled workers in occupations where there are skill shortages.
There are two categories of green card permit: one for positions in any industry or occupation with annual salaries of at least €60,000 (£47,400), and one for positions in designated shortage industries and occupations with annual salaries between €30,000 and €59,999 (£23,700-£47,400).
No labour market test is required, but an applicant must have a job offer of at least two years from a registered Irish employer, and must provide evidence that they meet the position’s requirements.
Either the employer or the foreign national can apply for the green card. The permit is issued for an initial period of two years, after which the foreign national may apply for renewal or permanent residency.
As a general rule, foreign nationals wishing to apply for Irish citizenship must have accrued a minimum of five years’ reckonable residence, with a minimum of 12 months’ continuous reckonable residence immediately before the application.
The new Irish green card scheme is likely to attract skilled migrants who do not meet the UK’s maintenance requirements, thereby placing Ireland ahead in the competition for talent in Europe.
To attract educated migrants, Ireland operates a scheme that permits foreign students with a primary, masters or doctorate degree from an Irish university to remain for a period of up to six months in order to seek employment and apply for a green card or a work permit.
Netherlands
The Netherlands also offers a route to highly skilled migrants, which makes it a serious contender, at least in Europe, if not the rest of the world./p>
The Dutch test for assessing a highly skilled migrant is based on previous earnings. To qualify under the scheme an applicant is required to earn an annual salary of at least €47,565 (£37,600) if they are over 30 years old. If the applicant is under 30, the required annual salary is €34,881 (£27,600). Migrants who have recently graduated in the Netherlands will qualify as long as they can show a prospective salary of at least €25,000 (£19,800).
Newly graduated migrants will also usually be given three months to find a role offering a salary that allows them access to the highly skilled migrant programme.
As a general rule, to qualify for Dutch citizenship foreign nationals must have lived in the Netherlands for at least five years continuously. They are required to demonstrate that they have integrated into Dutch society, which includes understanding of the Dutch language. To demonstrate their language skills, foreign nationals are required to undergo a naturalisation test.
On naturalisation, the Dutch authorities expect an applicant to renounce their previous citizenship, unless the foreign national is prohibited by the country of initial citizenship. Although the Netherlands’ system is intended to attract and retain skilled migrants, the Dutch language requirement is likely to be seen by many as an insurmountable obstacle to settling.
WHO IS WINNING THE RACE?
As illustrated, the global race for talent has generated unprecedented dynamism and modernisation in the immigration policies of the major competitor countries. The trend towards innovation has also fostered a large number of choices for highly skilled migrants and their families. They can now choose the country that will be most suitable for them in terms of gaining economic and citizenship rewards in exchange for contributing to the global competitiveness of the host nation’s economy.
While it led the race for many years, the imposition of a very restrictive quota on H-1B visas, a highly skilled migrant visa catering essentially for Nobel Prize winners, and a very long and tortuous route to citizenship have led many to claim that the US is fast losing ground to the new contenders. Based on the many ongoing fervent debates, unless there is a dramatic political u-turn on immigration policy, the US is likely to lose out to other English-speaking countries.
With their objective and transparent points-based systems, Australia and Canada appear to have solved the quest for the best and the brightest.
In Europe, the UK, Ireland and the Netherlands seem at present to be the only countries offering viable and flexible routes to highly skilled migrants.
In its effort to win the war for talent, the EU has proposed a blue-card programme as a Europe-wide solution. However, the concept has met strong opposition as arguably an EU-wide immigration system is unlikely to be able to regulate the heterogenous labour-market relations in the various member states. At this stage, it would appear that the blue card is destined to fail and member states wishing to attract foreign talent would be well advised to devise their own traps for highly skilled migrants.
By Delphine Dervin, associate solicitor, global immigration department, Magrath LLP.