Biden administration amends H-1B and J-1 visa rules and narrows S&T agreement with China

US updates rules for H-1B and J-1 visas

The Department of Homeland Security issued a series of visa policy updates near the end of the Biden administration that could impact STEM professionals and students looking to work or study in the U.S. A final rule published in December focuses on “modernizing” the H-1B program, which offers visas to skilled workers. For instance, the rule updates the criteria whereby nonprofit and governmental research organizations can hire workers using H-1B visas without being subject to the annual numerical cap on the program. Previously, such organizations were exempt from the cap only if their “primary mission” was research, but the new rule says that they can qualify if research is a “fundamental activity” but not their primary mission.

The new rule also states that H-1B visa applicants must hold degrees that are “directly related” to the job they want to perform. Some organizations, including APS, petitioned DHS to drop that language, arguing that it could unduly exclude people whose degrees are highly relevant to the work in question but the connection is not obvious from the degree name. DHS declined to drop the language but added a clarification that the intent is for there to be a “logical connection” between the degree and the job. DHS insists that the “directly related” criteria is consistent with longstanding agency practice and is meant to address situations in which the job qualification criteria are overly broad.

“Assertions that a position can be satisfied based on studies in any STEM degree field would generally indicate that the position does not require a ‘body of highly specialized knowledge’ but, rather, general mathematical or analytical skills,” DHS notes.

Also in December, the State Department made a major update to its criteria for determining whether J-1 visa holders must return to their home country for at least two years after completing a work or study program in the U.S. before they can apply for another visa. The new criteria removed dozens of countries from this requirement, including China and India. The department stated that this change will “significantly streamline the visa process for these exchange visitors, making it possible for those who qualify for work visas to continue contributing their talents to U.S. businesses and U.S. innovation.” J-1 visas are often used by visiting research scholars.

US and China narrow scope of S&T cooperation agreement

The U.S. and China struck a deal in December to extend their bilateral science and technology cooperation agreement by five years but narrow it to only cover basic research. The agreement explicitly excludes work related to developing critical and emerging technologies and includes “new guardrails for implementing agencies to protect the safety and security of their researchers,” according to the State Department. The agreement also adds “newly established and strengthened provisions on transparency and data reciprocity.” As this edition went to press, the text of the agreement had not yet been made public.

The previous agreement lapsed in August 2023 amid a stalemate in negotiations and increased tensions between the two countries. Some Republican politicians criticized the Biden administration’s negotiating posture and pushed to add new congressional oversight mechanisms to the process. Rep. John Moolenaar (R-MI), chair of the House Select Committee on the CCP, condemned the extension, stating that renewing the agreement in the final days of the Biden administration “is a clear attempt to tie the hands of the incoming administration and deny them the opportunity to either leave the agreement or negotiate a better deal for the American people.”