Potential Alterations in Immigration Policy Could Retain More Scientists in the U.S.
The Department of State's decision to revise the Skills List for Exchange Visitors could potentially save numerous researchers from being expelled from the United States due to immigration regulations. The policy adjustment allows a larger number of J-1 researchers, trainees, and others, notably from India and China, to operate in the U.S. without being compelled to depart the country due to residence requirements set forth in foreign laws. Immigration lawyers have observed a surge in interest from employers in the J-1 category subsequent to the State Department's action. The announcement follows favorable shifts in U.S. immigration policies that boosted approvals for O-1A visas and guidelines making it simpler for individuals with extraordinary abilities to qualify for employment-based immigrant status.
The U.S. Department's Immigration Move
The Department of State recently issued a public announcement revising the Exchange Visitors Skills List. The Skills List includes countries identified by the Secretary of State as requiring professionals in certain specialized fields. This list assists the departments of State and Homeland Security in determining whether an individual in the U.S. as a 'J' nonimmigrant exchange visitor, or who gained such status, is subject to the two-year foreign residence requirement under U.S. immigration law. (The announcement does not affect the foreign residence requirement waived for foreign physicians within the Conrad 30 program.)
Steve Plastrik, a senior associate at BAL,mentions the most important aspects of the J-1 change included removing individuals from China and India from the Skills List and subject to the two-year foreign residence requirement, and the notice was retroactive. According to the law, certain J exchange visitors must reside two years in their native country after their exchange period concludes or secure a waiver to be qualified for a change of status to H or L status, adjustment of status as a lawful permanent resident, or acquisition of an H, L, K, or immigrant visa.
J-1 visas differ from H-1B and L-1 visas, which involve employers filing paperwork with government agencies for a direct employer-employee relationship. “For J-1s, an employer or ‘host’ would work with a designated State Department program 'sponsor' organization to obtain the foreign national’s DS-2019 (similar to an I-20 for F-1 students), allowing them to obtain a J-1 visa,” said Plastrik. “The program sponsor supports the host throughout the process and ensures compliance with program requirements.”
He notes that the State Department had not altered the Skills List in approximately 15 years, and it no longer reflected the needs of countries on the list, which necessitated J-1 visa holders to return home. Analysts believe removing China and India from the list was reasonable, considering those countries' high scientific and technical bases. “The outdated Skills List impeded or delayed J-1 exchange visitors from obtaining H-1B, L-1, or lawful permanent resident status,” said Plastrik.
“U.S. industry—which funds and performs around 90% of America's experimental STEM R&D and roughly 60% of America's applied STEM R&D—has barely exploited the enormous potential of the J-1 visa program,” stated Amy Nice, who worked on technology policy during the Biden administration and is now a distinguished immigration counsel at the Institute for Progress and a 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 has no per-country limits, has primarily been utilized by U.S. universities, hospitals, government, and major nonprofit research institutions.”
She explained that the State Department aims to connect more designated exchange sponsors with U.S.-based host businesses in science and technology (STEM fields) such as small and medium-sized companies that may benefit from the international perspective of a J-1 researcher.
Nice authored a paper with Michael Clemens and Jeremy Neufeld for the Institute for Progress arguing that J-1 visa categorical restrictions, including requiring individuals to return to their home country for two years unless obtaining a waiver, reflect antiquated academic research on the concept of "brain drain." Current research demonstrates that emigration, including by highly educated individuals, can result in increased exchanges of goods, knowledge, and investments that benefit the home country.
Reactions from Employers and Immigration Attorneys
Immigration attorneys report a surge in interest following the State Department's announcement. “Since the news emerged on Friday, I have been bombarded with inquiries from companies and universities regarding this significant development,” said Dan Berger of Green & Spiegel.
“The new announcement does not change how the J-1 would be utilized for research scholars,” he said. “However, it means that the scientists will be more inclined to accept a J-1 position now that the Skills List has been updated.” He notes that postdoctoral researchers might not be enticed to accept a J-1 if it means a two-year absence from their home country. “The updated policy provides more flexibility for STEM talent to engage in high-level research and work toward a successful career without being restrained by a two-year commitment during the early stages of their career in their home country.”
"This is fantastic news for nations like India and China, which have been excessively filled in categories such as the H-1B, as per Dagmar Butte from Parker Butte and Lane. She proposes that employers should also explore entry-level positions to determine if candidates might fit into the trainee or intern category. 'This would enable the employer to educate the employee and assess if there's a long-term possibility, or provide the employee the opportunity to utilize the skills learned in their home country,' she adds. She warns that although the State Department might have eliminated the home residence prerequisite for an individual from a specific nation, the fundamental J-1 rules remain unchanged."
"In the opinion of Kevin Miner from Fragomen, this alteration renders the J-1 a more appealing choice for international labor force advancement. Employers with international ventures who wish to offer employees working overseas the chance to acquire training in the United States can now consider the J-1 as a possible option for additional individuals. Specifically, individuals from China, India, and other nations eliminated from the Skills List now have the option of acquiring J-1 training without triggering the two-year home residence requirement."
Miner contends that the State Department's decision to apply the policy retroactively could have significant implications for many. "This means that if there are individuals who arrived in the United States for J-1 training but have since altered their plans, they can now consider alternatives such as H-1B or L-1 without the necessity of first fulfilling the two-year home residence requirement or obtaining a waiver."
Lawyers concur that the State Department's declaration is a positive, modest move, but it does not rectify the U.S. immigration system's flaws in retaining competence. According to Dan Berger, "It is crucial that it is evident 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 remain in the United States."
- The revised Skills List by the State Department could benefit a large number of J-1 researchers and trainees from China and India, as they are no longer subject to the two-year foreign residence requirement due to the decision.
- Following the announcement, there has been an increase in interest from employers in the J-1 category, as the changes could potentially make it easier for J-1 visa holders to obtain employment-based green cards or change their status to H or L visas.
- The update to the Skills List was considered necessary as it no longer reflected the needs of countries such as China and India, which have strong scientific and technical bases.
- Immigration lawyers have praised the State Department's decision and have suggested that employers explore entry-level positions for international talent to determine if they can fit into the trainee or intern category.
- The announcement is being seen as a positive move by analysts, who believe it could encourage more designated exchange sponsors to connect with U.S.-based host businesses in STEM fields, leading to increased collaboration and knowledge exchange.
