The State Department’s decision to update the J-1 Exchange Visitors Skills List may prevent many researchers from being pushed out of the United States due to immigration law. The policy change allows more J-1 researchers, trainees and others, particularly from India and China, to work in the United States and not be forced to leave the country due to a foreign residence requirement. Attorneys report increased employer interest in the J-1 category after the State Department’s action. The announcement follows favorable changes by the Biden administration that increased approvals for O-1A visas and policy guidance that will make it easier for employment-based immigrants to qualify as individuals with extraordinary abilities.
The State Department’s Immigration Change
The U.S. Department of State has published a public notice that updates the Exchange Visitors Skills List. “The Skills List is a list of countries designated by the Secretary of State as clearly requiring the services of persons engaged in certain fields of specialized knowledge or skills,” according to the notice. “This list is used by the Department of State and the Department of Homeland Security to determine whether an individual who has been admitted into the United States as a ‘J’ nonimmigrant exchange visitor, or who acquired such status, is subject to the two- year foreign residence requirement” under U.S. immigration law. (The notice does not affect the residence requirement for foreign physicians granted waivers under the Conrad 30 program.)
Steve Plastrik, a senior associate at BAL, said the most significant aspects of the J-1 change are that individuals from China and India are no longer on the Skills List and subject to the two-year foreign residence requirement, and that the notice applies retroactively. Under the law, certain J exchange visitors must live two years in their home country after their exchange program ends or obtain a waiver “to be eligible for change of status to H or L status, adjust status to become a lawful permanent resident or receive an H, L, K or immigrant visa,” notes Plastrik.
J-1 visas are unlike H-1B and L-1 visas, which involve employers filing with the government for a direct employer-employee relationship. “For J-1s, an employer or ‘host’ would work with a program ‘sponsor’ organization designated by the State Department to get the foreign national’s DS-2019 issued (like an I-20 for F-1 students), which the foreign national uses to obtain a J-1 visa,” said Plastrik. “The program sponsor helps throughout the process and monitors the host’s compliance with program requirements.”
He notes that the State Department had not updated the Skills List in nearly 15 years, and it no longer reflected the needs of the countries on the list, which is the premise for requiring J-1 visa holders to return home. Analysts say removing China and India from the list made sense, given the high scientific and technical base of those countries. “The outdated Skills List made it more challenging or delayed certain J-1 exchange visitors from obtaining H-1B, L-1 or lawful permanent resident status,” said Plastrik.
“So far, U.S. industry—which funds and performs about 90% of America’s experimental STEM R&D [research and development] and just under 60% of America’s applied STEM R&D—has barely tapped the tremendous potential of the J-1 visa program,” according to Amy Nice, who worked on technology policy in the White House during the Biden administration and is now a distinguished immigration counsel at the Institute for Progress and distinguished immigration scholar at Cornell Law. “Instead, the J-1 category for researchers, which allows up to five years of authorized stay in the U.S. and no per-country limits, has been utilized almost exclusively by U.S. universities, hospitals, government and major nonprofit research institutions.”
She said the State Department would like to connect more designated exchange sponsors with U.S.-based host businesses in science and technology (i.e., STEM fields), especially small and medium-sized companies “that may benefit from the global perspective added by a J-1 researcher.”
Nice authored a paper with Michael Clemens and Jeremy Neufeld for the Institute for Progress arguing restrictions on the J-1 visa category, including requiring individuals to return home for two years unless obtaining a waiver, reflected outdated academic research on “brain drain.” Current research shows that emigration, including by highly educated individuals, can lead to a greater exchange of goods, knowledge and investment that benefits the home country.
Reactions From Employers And Immigration Attorneys
Immigration attorneys say that the State Department announcement has generated interest. “Since word came out on Friday, I am getting many inquiries from companies and universities about this really important development,” said Dan Berger of Green & Spiegel.
“The new announcement does not change how the J-1 would be used for research scholars,” he said. “But it does mean that the scientists will be more likely to accept a J-1 position now that the Skills List is updated.” He notes postdoctoral researchers might not want to accept a J-1 if it means they must return to their home country for two years. “The updated policy creates more flexibility for STEM talent to do high-level research and build toward a successful career without being tied to spending two years early in their career in their home country.”
“This is terrific news for countries like India and China who have been historically oversubscribed in categories like the H-1B,” according to Dagmar Butte of Parker Butte and Lane. She advises employers also to look at entry-level positions to see if individuals might qualify in the trainee or intern category. “That would allow the employer to train the worker and see if there is a long-term opportunity or provide the worker the chance to take the skills learned back to their country.” She cautions that even if the State Department has lifted the home residence requirement for an individual from a particular country, the underlying J-1 rules have not changed.
“For employers, this change makes the J-1 a more viable option for international workforce development,” said Kevin Miner of Fragomen. “Employers that have international operations and want to give employees working abroad the opportunity to gain training in the United States are now able to use the J-1 as a potential option for more individuals. In particular, individuals from China, India and other countries that were removed from the Skills List have the option of obtaining J-1 training without triggering the two-year home residence requirement.”
Miner thinks the State Department making the policy retroactive could be significant for many people. “This means that if there are individuals who came to the United States for J-1 training whose plans have now changed, they can explore options such as H-1B or L-1 without the need to first satisfy the two-year home residence requirement or obtain a waiver.”
Attorneys agree that the State Department’s announcement is a welcome, modest step, but it does not solve the U.S. immigration system’s shortcomings on retaining talent. According to Dan Berger, “It is important that it is clear this is a resumption of regular updates to the Skills List, which the State Department had not updated in 15 years, rather than a free pass for J-1s to stay in the United States.”