UPDATE: Upcoming Changes To J-1 Skills List

Quick Takeaways

• First update to J-1 Skills List since 2009
• Skills themselves unchanged, but list of countries subject to the Skills List reduced
• Update switches decision-making authority from foreign countries seeking their nationals' return, to the United States government
• Will apply retroactively to individuals presently holding J-1 status and those who were previously subject and who have yet to fulfill the home residency requirement

On December 9, 2024, the U.S. Department of State is set to announce updates to the Exchange Visitors Skills List – also known as the J-1 Skills List or simply the Skills List – that will amend which foreign nationals admitted in J-1 status will be required to spend two years outside the United States before seeking certain immigration benefits. These shifts should allow the United States to retain high-skilled foreign nationals who would otherwise take their skills and talents abroad, thereby bolstering key sectors within the U.S. economy and for the betterment of the country as a whole.

By way of background, the United States has used the J-1 Program – along with the Peace Corps and Foreign Assistance Acts created within the same month or so – since 1961 as a diplomatic tool to engender familiarity and exchange between foreign nations and the U.S. populace.

As codified in the Immigration and Nationality Act ("INA") and promulgated through Federal Regulations and U.S. Department of State guidance, the J-1 Program has facilitated the admission of foreign nationals for myriad purposes related to enhancing international relations – from welcoming camp counselors and other summer workers, to receiving medical trainees and research scholars. According to the U.S. Department of State, an average of 300,000 visitors hailing from 200 countries and territories use the J-1 Visa Program per year, thereby enriching the U.S. communities and institutions to which they contribute while engendering positive feelings for the United States in the J-1 Visitors' home countries.

However, the J-1 Visa Program does have a catch: that certain J-1 Visa holders must return to their country of residence outside of the United States for at least 2 years before pursuing a longer-term U.S. immigration benefit such as an H-1B Visa, L-1 Visa, or U.S. Lawful Permanent Resident. Found under Section 212(e) of the INA, this 2-year home residency requirement has traditionally applied to the following J-1 Visa holders:

1. Those whose J-1 Visa Program is supported by government funds;
2. Those receiving J-1 graduate medical training; and
3. J-1 Visa holders from certain countries who are receiving education and training in certain skills deemed essential by their home country.

The aforementioned update will not remove the 2-year home residency requirement for government-funded J-1s or for J-1 Visa holders receiving U.S. graduate medical training. Further, the upcoming changes will not alter the skills that appear on the J-1 Skills List.

Rather, this update – the first substantive change of the Skills List since 2009 – marks a fundamental shift in how a given country's citizens are subject to the Skills List. Previously, foreign nations dictated whether their citizens would be required to spend 2 years in their home country after gaining in-demand skills and knowledge in the United States. But as of December 9, the U.S. government will make that determination based on its own economic analysis.

As a result, citizens of the following countries will no longer be subject to the J-1 Skills List:

Moreover, the upcoming change will apply retroactively, meaning J-1 Visa holders presently or previously subject to the 2-year home residency requirement will be relieved from spending 24 months outside the United States if they do not qualify for or cannot obtain a 212(e) waiver.

Green and Spiegel attorneys are at the forefront of devising new and creative methods for the United States to encourage the admission and retention of high-skilled foreign nationals in critical sectors through the immigration system. Therefore, we applaud this administration's decision to remove this burdensome hurdle for numerous J-1 Visa holders previously forced to either press pause on their life and work in the United States or jump through uncertain hoops to avoid that fate.

For further reading on the nature of the J-1 Skills List and the rationales for the upcoming amendments, see "Expelling Excellence: Exchange Visitor Restrictions on High-Skill Migrants in the United States," co-authored by the inimitable Amy Nice, with whom the co-authors of this article have collaborated on the above-referenced efforts to enhance high-skilled immigration to the United States. Both Amy Nice and co-author Dan Berger's reactions to this move can also be found in Forbes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.