J-1 visa holders, and their dependents, who’re subject to INA §212(e) are required to return to their home country for two years, or must obtain a “J-1 waiver” before they can change or adjust their status. If you do not want to return home for the two-year “home country residence requirement,” you can apply for a waiver of the requirement under any one of following five grounds:
- request by a designated State Department of Health;
- Interested Government Agency (IGA)
- no objection statement;
If you are not on a J1 visa but need a hardship waiver, learn more about other hardship waiver options here.
J-1 visa holders who can demonstrate that their departure for two years would cause “exceptional hardship” to their United States citizen or lawful permanent resident spouse or child (“qualifying relatives”) may obtain a waiver of the two-year foreign residence requirement.
Advantages and Disadvantages of the J1 Hardship Waiver
The benefits of the hardship waiver are that, if approved, the applicant can immediately apply for permanent residence or change of status rather than spending three (or five) years in H-1B status as may be required under the IGA wavier process. A physician would also not be limited to employment in underserved areas, but can take a position anywhere.
The disadvantages are that the outcome of the application, and the time to process it, is difficult to predict.
The hardship to the qualifying relatives in the event they were to go with the applicant to the home country, or in the event they were to remain in the United States, should be considered equally.
Requirements for a J1 Hardship Waiver
Typical hardships include medical hardship, psychological hardship, political and social conditions in the home country, and economic and career disruption which would impact the qualifying relative(s). Length of marriage, number of children, original nationality of the qualifying relative, and any past separation between the applicant and the qualifying relatives are also taken into consideration.
Mere separation and the attendant sadness that this involves is not enough to outweigh the public policy objectives of the J1 program.
Because the hardship waiver is not easy to obtain and is highly fact based and subject to discretionary considerations by adjudicating officers, waivers should not be submitted without careful preparation. An experienced immigration attorney can help you determine whether your waiver has a reasonable possibility of success.
To schedule a consultation with an Immigration Attorney, contact our office at (916) 613-3553 or at firstname.lastname@example.org.