The U.S. Department of State has published an updated list of the types of skills that make a J-1 exchange visitor subject to the two-year foreign residence requirement. At the request of the PRC Ministry of Foreign Affairs, this list subjects almost all Chinese J-1 visa holders to the foreign residence requirement.
As background, a J-1 visa is for a person approved to participate in one of various categories of exchange visitor programs in the U.S., including physicians, au pairs, camp counselors, government visitors, interns, trainees, international visitors selected by the State Department, research scholars, short-term scholars, specialists, secondary school students, college and university students, summer work travel, and teacher.
Certain J-1 exchange visitors are subject to the two-year home-country physical presence (foreign residence) requirement, meaning they must return to their home country for two years at the end of the exchange visitor program before qualifying for an H or L work visas or a green card. Persons are subject to this requirement if their visit was financed by the U.S. government or their home country government, if coming for graduate medical training, or–most important for this discussion–if they are covered by the J-1 exchange visitor skills list.
The J-1 exchange visitor skills list is, according to the State Department, a list of specialized knowledge and skills that are deemed necessary for the development of each country. The list has been developed by the Waiver Review Division, Visa Office, Bureau of Consular Affairs, after consultation with foreign governments and overseas [U.S. consular] posts. The new list is effective June 28, 2009.
The list for China includes all of the skills cataloged by the State Department, with the exceptions of engineering technologies/technicians, technology education / industrial arts, and military technologies:
- agriculture, agriculture operations, and related sciences
- natural resources and conservation
- architecture and related services
- area, ethnic, cultural, and gender studies
- communication, journalism, and related programs
- communications technologies, technicians and support services
- computer and information sciences and support services
- personal and culinary services
- foreign languages, literatures, and linguistics
- family and consumer sciences/human sciences
- legal professions and studies
- English language and literature/letters
- liberal arts and sciences, general studies and humanities
- library science
- biological and biomedical sciences
- mathematics and statistics
- parks, recreation, leisure, and fitness studies
- philosophy and religious studies
- theology and religious vocations
- physical sciences
- science technologies/technicians
- security and protective services
- public administration and social service professions
- social sciences
- construction trades
- mechanic and repair technologies/technicians
- precision production
- transportation and materials moving
- visual and performing arts
- health professions and related clinical sciences
- business, management, marketing, and related support services
- medical residency programs
I spoke with Stanley Colvin, Deputy Assistant Secretary of State for Private Sector Exchange, who said that the skills list for PRC was made nearly all-inclusive at the request of the PRC Ministry of Foreign Affairs. This seems consistent with the Chinese government’s concerns about brain drain. Many top students who study abroad choose not to return home. See here, here, and here for references to a Chinese Academy of Social Sciences report and a Gallup survey on the subject.
One prominent immigration lawyer criticizes the State Department for the PRC skills list:
This basically means that we are training a lot of super smart math and science whizzes and then ordering them to leave the US with all of that new knowledge so that they can then help their country compete with us….Â Is the State Department completely asleep at the switch?
I agree that the J-1 program isn’t a great way to bring science, technology, engineering, and mathematics (STEM) talent to the U.S. on a permanent basis. However, that wasn’t the purpose of the J-1 program. Congress began the J-1 exchange visitor program in 1948 with the primary purpose of promoting better international relationships through the exchange of cultural information. The person-to-person relationships built up thanks in part to the J-1 program may be key to building better understanding between our two countries, avoiding a trade war, and avoiding a new Cold War.
So, if you are upset that just about all Chinese J-1s are subject to the foreign residence requirement, blame the PRC Ministry of Foreign Affairs. The State Department did what was appropriate in running a visa program designed by Congress to improve international relationships–it asked China to identify for itself what are the specialized skills needed by the country.
And if you–like me–want to make more foreign STEM talent available to U.S. companies on a long-term basis in order to drive American innovation, then focus on advocating for fixes to the H and L work visa programs and the broken employment-based permanent residence program.
In the meantime, if you are subject to the foreign residence requirement and seek a waiver of that requirement, call your immigration lawyer. (Yes, this is a shameless plug). Waivers may be requested under these five separate bases:
- No objection statement by home country;
- Exceptional hardship;
- Conrad program for certain physicians; or
- Request by an interested U.S. Government agency.