Public Notice of Revised Exchange Visitor Skills List
The Department of State ("Department") is announcing an update of the Exchange Visitors Skills List ("Skills List"). The Skills List is a list of countries designated by the Sec...
The Department of State (“Department”) is announcing an update of the Exchange Visitors Skills List (“Skills List”). The Skills List is a list of countries designated by the Secretary of State as clearly requiring the services of persons engaged in certain fields of specialized knowledge or skills. This list is used by the Department of State and the Department of Homeland Security to determine whether an individual who has been admitted into the United States as a “J” nonimmigrant exchange visitor, or who acquired such status, is subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act (“INA”), as amended.
DATES:
The Exchange Visitor Skills List is applicable on December 9, 2024.
FOR FURTHER INFORMATION CONTACT:
Jami Thompson, Senior Regulatory Coordinator, Visa Office, Bureau of Consular Affairs, Department of State; email:
VisaRegs@state.gov.
SUPPLEMENTARY INFORMATION:
INA 212(e) (8 U.S.C. 1182(e)) provides that certain individuals who have been admitted to the United States as “J” nonimmigrant exchange visitors, or who acquired such status in the United States, are ineligible to apply for an immigrant visa, for permanent residence, or for certain nonimmigrant visas until they have resided and been physically present in their country of nationality or last residence for an aggregate of at least two years following departure from the United States. More specifically, under INA 212(e) (8 U.S.C. 1182(e)), this requirement attaches to J nonimmigrants who, among other criteria, are a national or resident of a country that the Secretary of State, pursuant to Department regulations, has designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the individual was engaged. Department regulations at 22 CFR 41.62(c) implement the Secretary's designation authority under this provision, providing that an exchange visitor is subject to the two-year foreign residence requirement if they are a national or legal permanent resident of a “country which the Secretary of State has designated, through publication by public notice in the
Federal Register
, as clearly requiring the services of persons engaged in the field of specialized knowledge or skill” during their exchange visitor program. The Department also implements INA 212(e), 8 U.S.C. 1182(e) through regulations at 22 CFR 41.63 and 22 CFR 40.202.
Pursuant to the provisions of INA 212(e), 8 U.S.C. 1182(e), 22 CFR 41.62, and 22 CFR 41.63, the Department is announcing a revised Skills List. The Department has periodically updated the Skills List since the initial publication of the Skills List on April 25, 1972. New lists were published on February 10, 1978, June 12, 1984, January 16, 1997, and April 30, 2009. This revised Skills List supersedes the most recent Skills List published in 2009. Accordingly, J nonimmigrant exchange visitors who were subject to the two-year foreign residence requirement at the time of their admission or acquisition of J status based on designations in a previously published Skills List will no longer be subject to that requirement if their country is not designated in this revised
( printed page 97694)
list. This Skills List was developed by the Bureau of Consular Affairs Visa Office in collaboration with the State Department's Office of the Chief Economist and the Bureau of Educational and Cultural Affairs.
The Department is updating the countries included on the Skills List based on criteria that is data driven, transparent, and consistent with U.S. goals for the development of foreign countries. The Department is not updating skills in this revision—for countries present on this revised Skills List, the skills listed remain the same as in the 2009 Skills List. The Skills List below accounts for overall economic development (as measured by per capita Gross Domestic Product (GDP)), country size, and overall outbound migration rate.[1]
If a country has per capita GDP that is less than $7,500 [2]
in 2023 dollars (calculated using the purchasing power parity (PPP) exchange rate), the Department presumes it would benefit from its nationals or residents possessing the specialized knowledge or skills designated on the Skills List.
If a country is at or above the $ 7,500 GDP threshold, but below the median per capita GDP ($15,000 in 2023 dollars), and determined to be small, which makes it more difficult to develop internal hubs of specialized knowledge or skills, the Department presumes that country would benefit from its nationals or residents possessing the specialized knowledge or skills designated on the Skills List.
If a country is at or above the $7,500 GDP threshold, but below the median per capita GDP ($15,000 in 2023 dollars), and has experienced a significant balance of outbound migration, which is likely to have resulted in the loss of talent and skills over the preceding decade, the Department presumes that country would benefit from its nationals or residents possessing the specialized knowledge or skills designated on the Skills List.
The Department has chosen these indicators and thresholds as an objective, measurable proxy for a country's standard of living and development and is closely linked to the accumulation of human capital within a given country. These criteria are meant to ensure countries with low levels of development as well as those countries with higher levels of development that have other extenuating circumstances that stymie the development of a skilled workforce will remain on the Skills List to support the development of that country.
The Department has chosen these criteria to assist its determination that the listed countries clearly require the services of persons engaged in designated fields of specialized knowledge or skills, because these well-established measures of a country's standard of living are informative of whether the country in fact clearly requires the relevant knowledge or skill, as opposed to the country only benefiting from or otherwise not requiring additional expertise in the relevant fields.
The Department intends to review the Skills List every three years and will publish updates as appropriate.
Exchange Visitors who seek a definitive determination from the Department of whether the two-year foreign residence requirement applies to them may request an Advisory Opinion from the Waiver Review Division. Information on this process is available on our website at
travel.state.gov.
This Notice is exempt from notice and comment as it involves a foreign affairs function of the United States. 5 U.S.C. 553(a)(1).). The Department has invoked the foreign affairs exemption from Administrative Procedure Act (APA) requirements for numerous rules involving the Exchange Visitor Program going back to 1949, including several rules specifically relating to the two-year foreign residence requirement.[3]
Under 5 U.S.C. 553(a)(1), notice-and-comment requirements of the APA do not apply “to the extent there is involved . . . a military or foreign affairs function of the United States.” This exemption applies when the rule in question “is clearly and directly involved in a foreign affairs function.” [4]
In addition, although the text of the APA does not require an agency invoking this exemption to show that such procedures may result in “definitely undesirable international consequences,” some courts have required such a showing.[5]
Both standards are satisfied here.
In designating countries and skills on the Skills List, the Secretary is carrying out authority vested by Congress to assess the needs of foreign countries. As this relates to the Exchange Visitor Program, a key diplomacy tool, the Secretary's designations of countries on the list directly involves a foreign affairs function as the designations are a vehicle to advancing U.S. foreign policy objectives in countries whose nationals and residents participate in exchange visitor programs. The Exchange Visitor Program's nexus to foreign affairs is reflected in the purpose of the United States Information and Educational Exchange Act of 1948 to “promote the better understanding of the United States among the peoples of the world and to strengthen cooperative international relations,” [6]
and the Secretary's discretionary designation of countries as “clearly requiring” certain fields of knowledge or skills by nature reflects a quintessential foreign affairs function. The Mutual Educational and Cultural Exchange Act of 1961 (also known as the Fulbright-Hays Act), provides further evidence of the foreign affairs function served by the Exchange Visitor Program.
“The purpose of this [Act] is to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations, and the contributions being made toward a peaceful and more fruitful life for people throughout the world; to promote international cooperation for educational and cultural advancement; and thus to assist in the development of friendly, sympathetic, and peaceful relations between the United States and the other countries of the world.” 22 U.S.C. 2451.
The revised Exchange Visitors Skills List clearly and directly involves a foreign affairs function given the nature of the Secretary's express authority to designate countries under INA section 212(e), 8 U.S.C. 1182(e). Even more generally, courts have acknowledged that “[t]he exchange visitor program—with its statutory mandate for international interaction through nonimmigrants—certainly relates to the foreign affairs and diplomatic duties conferred upon the Secretary of State and the State Department.”
Raoof
v.
Sullivan,
315 F. Supp. 3d 34, 44 (D.D.C. 2018).
Further, requiring the Department to subject this list of designations to the
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APA's notice and comment requirements would result in “definitely undesirable international consequences.” The foreign relations considerations of opening this list of designations to public comment, including comment from foreign governments whose policies are directly affected by this list and requiring the Department to respond publicly to questions regarding the balancing of foreign policy and other national interests, would have definitely undesirable international consequences.[7]
For example, if a foreign country expresses dissatisfaction with the Skills List designations, requiring the Department to air this disagreement in a public forum could have larger implications for foreign relations between the United States and that other country.
The 2024 Exchange Visitor Skills List reads as follows:
(01) Agriculture, Agriculture Operations, and Related Sciences
(01.00)
Agriculture, General
(01.01)
Agricultural Business and Management
Production Operations and Mechanization
(01.06)
Applied Horticulture/Horticulture
(01.09)
Animal Sciences
Agricultural Animal Breeding
Animal Health and Nutrition
Dairy Science
Livestock Management
Poultry Science
(01.10)
Food Science
(01.11)
Plant Sciences
Crop Science
Horticulture Science
Agricultural and Horticultural Plant Breeding
Pest Management
Range Science
(01.12)
Soil Science and Agronomy
(03) Natural Resources and Conservation
(03.01)
Natural Resources Conservation and Research
Environmental Science
Wildlife Studies
Wildlands Studies
Environmental Protection
(03.02)
Natural Resources Management and Policy
(03.03)
Fishing and Fisheries Sciences
Fishing and Fisheries Management
(03.05)
Forestry
(04) Architecture and Related Services
(04.02)
Architecture
Environmental Design
Interior Design
Landscape Design
Architectural History
Architectural Technology
(04.03)
City/Urban Planning
Community and Regional Planning
Architectural Urban Design
(05) Area, Ethnic, Cultural, and Gender Studies
—
(09) Communication, Journalism, and Related Programs
(09.01)
Communication and Media Studies
(09.04)
Journalism
Broadcast Journalism
Photojournalism
On-Line/Web page News
(09.07)
Telecommunication
Radio Communication
Television Communication
Digital Communication
Media/Multimedia
(09.09)
Public Relations
Advertising
Applied Communication
(09.10)
Publishing
(10) Communications Technologies, Technicians and Support Services
2.
$7500 in 2023 dollars is approximately 50% of global median income or about the 33 percentile of income distribution, which covers about
1/3
of all countries with lowest human development indicator measure.