J1 Hardship Waivers: Waving Physical Presence Requirement
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J1 Hardship Waivers
Physical presence requirement (foreign residence requirement)
J1 visa holders are generally subject to a two-year home-country physical presence requirement (foreign residence requirement). This means that after completion of the period covered by your J1 visa you have to go back to your home country for two years prior to changing status in the U.S. or obtaining your lawful permanent residence (greencard). As a J1 visa holder you are subject to this requirement for one or more of the following reasons:
- you participated in a program that was funded in whole or part by a U.S. Government agency, your home country’s government, or an international organization that received funding from the U.S. or your home country’s government;
- you participated in a program involving an area of study or field of specialized knowledge that has been designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country; and/or
- you participated in an exchange program to receive graduate medical education or training.
Generally, you are made aware of the requirement to return to your home country when you agree to participate in your program or at your visa interview. If necessary an official opinion on your behalf can be obtained from the Department of State to determine whether you are required to return to your home country.
Waiving the physical presence requirement
If you are subject to the two-year home-country physical presence requirement you may find it necessary, after spending the time allotted by your J1 visa, to remain in the U.S. without returning to your home country. There are five bases set forth in U.S. immigration law to waive the requirement to return to your home country:
- Your home country government may issue a no objection statement (not applicable to foreign medical physicians);
- The waiver may be requested by an interested U.S. federal government agency;
- You may request a waiver if you fear persecution based on your race, religion, or political opinion if you return to your home country;
- Participation in the Conrad State 30 Program; or
- Hardship waiver
This article will focus on the hardship waiver category. If you can prove that your departure from the U.S. would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you may apply for a hardship waiver.
The definition of exceptional hardship
Exceptional hardship can take many forms depending on your particular circumstances. The hardship must be to your spouse or child (not parent or other family) and the spouse or child suffering hardship must have status as a lawful permanent resident (a greencard) or a U.S. Citizen. Hardship to you will only be considered insofar as it affects your U.S. Citizen or lawful permanent resident spouse or child. Also, mere separation from family is not sufficient to establish exceptional hardship.
Here are some real life examples:
While on his J1 waiver Ali meet Rebecca, a U.S. citizen and the couple marries. Rebecca has a history of crippling depression but with Ali, Rebecca is happy and has not had any relapses. Rebecca cannot accompany Ali back to his home country for his required two years because she is the only person willing and able to care for her aging parents. The prospect of Ali having to leave, even if just for two years, is becoming a source of increasing anxiety for Rebecca and she is having suicidal thoughts. Given these particular circumstances, it would be wise for Ali to apply for a hardship waiver because his departure would cause exceptional hardship to his wife, Rebecca, a U.S. citizen.
As another example, take the case of Noah and Cynthia. Noah entered the U.S. on a J1 and brought his wife Cynthia on a J2. While in the U.S., Cynthia gave birth to the couple’s first child, Alexander. Alexander suffers from attention deficit/hyperactivity disorder (ADHD). Alexander has a hard time focusing and he is really hyper but his school is accommodating to his needs and after school he goes to tutoring so that he won’t fall behind. He also meets with a social worker and a child psychiatrist to make sure he is a staying on track. Thankfully, with his current regimen Alexander is thriving. Unfortunately, in Noah and Cynthia’s home country, ADHD is not recognized. The schools would treat him like a misbehaving child instead of a child with special needs. Alexander would also lack access to professionals who are familiar with and understand ADHD. Noah and Cynthia are justifiably concerned about the devastating consequences of foregoing treatment for Alexander. Given these particular circumstances, it would be advisable for Noah and Cynthia to seek a hardship waiver because even two years abroad would cause exceptional hardship to Alexander, a U.S. citizen.
Proving exceptional hardship
In order to prove your case for exceptional hardship you can submit absolutely any type of papers you think help prove your case. For example, you may want to submit:
- letters from friends and family;
- statements from doctors;
- mental health professionals;
- teachers, and case workers;
- medical records;
- financial statements.
You will also be required to submit a statement detailing the exception hardship that would ensue if you had to depart from the U.S. Highlighting the strengths of your case in your statement is extremely important. The legal argument called a brief explains exactly how your circumstances meet the requirements as specified by the law. Finally including printed research regarding the medical conditions present in your case or supporting the other hardships, and research regarding the conditions in your home country, plays a significant role in establishing your status and eligibility for a J1 Hardship Waiver.
Written by: Kaushik Ranchod
Published by: The Ranchod Law Group