Immigration Law Insights

In what some might consider a parting gift from the Biden administration, the U.S. Department of State revised the J-1 Exchange Visitor Skills List, resulting in removal of foreign nationals from more than thirty countries.  Foreign nationals who come to the United States on a J-1 visa to participate in a cultural exchange program can find themselves subject to a two-year home residency requirement if their field of study is listed on the Exchange Visitors Skills List for their home country.  Following completion of a J-1 program, those subject to the home residency requirement must either obtain a waiver or return to their country of origin for a two-year period before being eligible to enter the United States in certain nonimmigrant visa classes and/or adjust status to a Legal Permanent Resident (also known as a Green Card holder).  The Exchange Visitors Skills List was last updated in 2009. 

The revisions could impact a significant number of foreign nationals.  The countries removed from the Exchange Visitors Skills List include China, India, Brazil, Colombia, South Korea, and South Africa.  The updated list is available at the Department of State’s website (available here: https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor/exchange-visitor-skills-list.html) The revisions were also implemented retroactively, meaning even those already in the United States that were subject to the home residency requirement at their time of entry are no longer required to comply with the requirement if their country has been removed. 

The education sector could be among the most widely impacted by the change.  Local school districts regularly employ teachers in J-1 status and the J-1 program is a popular visa option for institutions of higher education seeking to fill research-related positions.  School districts and universities sometimes found themselves blocked from continuing employment through H-1B visa sponsorship after completion of the J-1 program due to the home residency requirement.  The revised list is therefore a significant update in the education arena.

Importantly, a foreign national whose country was removed from the Exchange Visitors List may not be able to avoid the home residency requirement in every instance.  Specifically, individuals whose J-1 program is funded by the U.S. government or the government of their home country are still subject to the requirement.  Additionally, foreign medical graduates who receive training in the United Sates are still subject to the home residency requirement, regardless of whether or not their country appears on the Exchange Visitors List. 

Burr & Forman’s immigration team regularly advises clients on issues related to the J-1 home residency requirement and other aspects of nonimmigrant visas. If your business has questions regarding employment-based visas, contact Melissa Azallion Kenny (makenny@burr.com), Anna Scully (ascully@burr.com), or Jon Eggert (jeggert@burr.com) on the Burr & Forman immigration team.