Written by Colleen F. Molner, Esq., Partner, N.C. Board Certified Immigration Law Specialist.
The Department of State published a notice in the Federal Register in early December which updated the Exchange Visitors Skills List pertaining to certain J-1 Exchange Visitor visa holders.
Specifically, the “Skills List” is used to “determine whether an individual who has been admitted into the United States as a nonimmigrant exchange visitor, or who acquired such status, is subject to the two-year foreign residence requirement.” The list also contains a set of “countries designated by the Secretary of State as clearly requiring the services of persons engaged in certain fields of specialized knowledge or skills.”
In other words, J-1 visa holders from countries on the list are usually required to return to their nation of origin, or last residence, for two years after completing their J-1 program, unless a waiver is available to them. They can then apply for a different nonimmigrant visa or green card after the two-year waiting period. The two-year waiting period does not apply to foreign nationals who are from countries not recognized on the skills list.
The vast majority of J-1 visa holders are in the research, science, technology, medical and teaching fields, amongst others. As such, it is expected that researchers, professors, scientists and some tech workers will benefit from the update, along with their employers.
Below are further details and information to know about the updated skills list and its anticipated impacts moving forward.
Fast facts and information to know
— The updated skills list took effect as soon as the Department of State published a notice in the Federal Register on Dec. 9, 2024. It is the first update to the list since 2009.
— The most notable change to the skills list in the December update was the removal of more than 35 countries, including major nations that use the J-1 Exchange Visitor program for research and science, such as China, India, Brazil, South Korea and more.
— J-1 visa holders who are from countries that were removed will no longer be required to apply for a waiver of the two-year requirement or return to their home country.
— It is important to note that the update does not apply to all professions and only applies to J-1 visa holders who are subject to the two-year home residency requirement based upon the Skills List as designated on their DS-2019. For instance, physicians and international medical graduates will still be subject to the two-year home residency requirement, regardless of their home country. Similarly, those who are subject to the two-year home residency requirement based on government funding are still required to secure a No Objection Letter/waiver or return to their home country.
— The update to the skills list applies retroactively, which means that applicable J-1 visa holders who were admitted to the U.S. while their home country was on the skills list, but it has since been removed, will no longer be subjected to the two-year home residency requirement. The Department of State’s Waiver Review Division has started notifying such individuals with waivers pending that a waiver is no longer required.
What are the impacts of the updated skills list?
The update to the skills list will have many positive effects for both employers and employees.
Employers could have access to valuable employees from countries removed from the list, such as India and China, without having to wait for the end of their two-year home residency requirement or needing to file a time-consuming and costly J-1 waiver. This could specifically benefit those in the research, science, and other STEM fields, who are typically on the skills list, from the removed countries.
Foreign nationals from the countries newly removed from the skills list will no longer need to return to their home nation for two years following the completion of their J-1 program. This could lead to more direct paths to nonimmigrant (such as the H-1B visa) or green card sponsorship, without forcing disruption in their existing work.
What is the J-1 visa?
A J-1 visa permits foreign nationals from any country to come to the United States in an exchange program designated by the U.S. Department of State.
The foreign national must enter the United States for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training.
In order to receive a J-1 visa, a foreign national must apply for and be accepted by an exchange visitor program designated by the U.S. Department of State.
The foreign national must have a residence in a foreign country which they have no intention of abandoning. The foreign national must demonstrate sufficient knowledge of English to participate in the program and demonstrate access to sufficient funds to cover expenses.
The J-1 visa program was designed to facilitate international exchanges. The primary purpose is to expose foreign visitors to American methodologies, expertise and culture and share that learning and experience upon return to their home countries, hence the general requirement to return to their home country for two years before being eligible to work or permanently live in the U.S.
Waivers for physicians
While this update does not benefit International Medical Graduates who are in the U.S. on a J-1 medical program that makes them subject to the two-year home residency requirement, they may still apply for waivers. Nothing has changed for International Medical Graduates.
For example, both the Interested Government Agency (IGA) and Conrad State 30 Waivers are mechanisms for bypassing the requirement if the physician agrees to work in a Health Professional Shortage Area (HPSA) or Medically Underserved Area (MUA).
The IGA waiver requires a U.S. government agency to request a waiver for the physician if they are actively and substantially involved in a program or activity sponsored by or of interest to such agency. The Appalachian Regional Commission, Delta Regional Authority, Department of Veterans Affairs, DHHS and Southeast Crescent Regional Commission currently run the Federal program that regularly sponsors IGA waivers for physicians. Each agency has its own guidelines for recommending an IGA waiver.
Meanwhile, the Conrad State 30 program was initially created by the U.S. Congress in 1994. There are usually 30 slots available per state for physicians each government fiscal year. Some states also allocate up to 10 “flex spots.” Each state determines its own rules for granting Conrad 30 Waivers.
Find out more about immigration options for healthcare workers here.