Talent Crisis

Given current demographics and educational trends, it's a lot less likely that the "next Bill Gates" will be born in the U.S. Given our country's decreasing share of the world's population and rapidly improving education around the globe, talented individuals throughout the world have vastly greater opportunities than they did a generation ago.

But such a person could still grow up somewhere else and wish to live and work here. Indeed, the access to venture capital and strong protection of IP in the U.S. provide powerful incentives for talented young men and women to move here. And our companies and economy benefit from these talented individuals. The big question is whether we'll let them in.

For more than 50 years, the U.S. has prospered in part by attracting the best and the brightest in highly skilled fields from abroad. The success of U.S. companies in the IT field has been fueled in part by scientists and engineers who immigrated to the U.S. The ability to attract talent from around the world indisputably creates opportunities for everyone--newcomers and long-time residents alike.

Unfortunately, our nation's current immigration policies impede access to the global talent pool at precisely the time when we are striving to maintain global innovation leadership. Simply put: high-skilled immigration to the U.S. is in crisis. In-house counsel need to become educated about immigration issues and their potential impact on all of our companies' ability to compete.

Consider this--just to get a visa, students from abroad are now required to prove that they do not intend to remain in the U.S. upon receiving their degrees. This is only the first in a gauntlet of disincentives facing highly skilled individuals.?? 1/2 Instead of stapling a work visa to their diplomas and inviting these graduates to help grow our economy, we insist they leave upon completion of their studies.

In addition to barriers facing foreign students, our programs for highly skilled employees are woefully inadequate to meet the needs of U.S. companies. H-1B visas, the most critical professional work visa, run out faster and faster each year. This leaves employers without access to urgently needed professionals. The wait time for many key categories of green cards for highly skilled workers now reaches nearly five years.

Other countries are benefiting from this situation. They are changing their immigration policies to attract students and professionals who would otherwise enter this country's skill supply. Their gains are our opportunities lost.

In the U.S., however, there is now daily anguish at both the business and human levels. In an industry that lives by the wits of its workers, how do you tell brilliant, rising star engineers they are facing a five-year wait for a green card and that they cannot change positions and advance professionally while they wait? And how do you tell their spouses that they cannot work in the meantime, especially when other countries would welcome them both with open arms?

There are, however, several steps the U.S. could take to alleviate this crisis.

First, we should increase the annual limit of 140,000 employment-based immigrant visas (including spouses and children) that was established in 1990 to reflect current economic conditions. Second, we should remove the artificially imposed limit on nonimmigrant worker visas for international students graduating from U.S. universities with baccalaureate and advanced degrees. Finally, we should welcome professionals with advanced degrees in science, technology, engineering and math by providing a direct path to permanent residence in the U.S. instead of consigning them to arbitrary "temporary worker" categories.

As in-house counsel, why should we care about this? The answer is clear. In a broadening variety of industries, future growth opportunities for our clients will turn on their ability to recruit talent in competition with successful companies in other countries. The immigration laws will determine whether we can.

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Brad Smith is the senior VP, general counsel and corporate secretary of Microsoft Corp.

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