The Ranchod Law Group filed for a hardship waiver so client could remain in the U.S. with her American spouse and child, under Chapter 45 Waiver of Section 212(e) Foreign Residence Requirement, (45.3 – Waiver Based on exceptional hardship to U.S. Citizen or Lawful Permanent Resident Spouse or Child).
The case was based mostly off of arguments concerning the hardship inherent to the family’s relocation to Lebanon due to country conditions.
In order to win the case, The Ranchod Law Group argued the American spouse and/or child would suffer exceptional hardship if Client returned to Lebanon without her family to complete her home residency requirement. To support this part of the case we argued exceptional emotional hardship – hardship to the American spouse’s mental health.
We are so happy Client will be able to remain in the U.S. with her American spouse and child. Client’s next step, now that she is no longer subject to the home residency requirement, will be to apply for a marriage based greencard.
In this case there were a number of key factors based on the economical and political situation in the country, namely:
political turbulence;
economic crises;
sharp inflation;
humanitarian crisis;
critical shortage of daily necessities;
unavailability of medical care;
unavailability of essential medicines;
absence of clean water and food;
infrastructure issues;
lack of education.
All these factors would have an exceptionally negative effect on the child’s safety, health, education, well-being, development, and mental health and would create a situation of extreme hardship.
Here at the The Ranchod Law Group, we relied heavily on our ability to argue the case and document all these negative aspects and conditions the family would experience and endure.
The Facts About this Hardship Waiver Approval Case
Client is a brilliant and accomplished professional
Client is from a Muslim country
After entering the U.S client converted religion from Islam to Christianity
Among other evidence we included a letter from client’s Pastor, numerous letters from members of his church community, and we referred the client to an expert who wrote a report confirming the client’s reasonable fear of persecution.
We argued possible Persecution not only from the government of his home country and the system, but also from private citizens. Here at The Ranchod Law Group we study and evaluate the facts to argue and substantiate each case: for this client, we researched other individuals who have been persecuted. It was a long process, but we feel so honored to have been able to help yet another client along on his journey. We have helped similar clients in the past as well.
In order to win these cases, we are required to prove that there would be exceptional hardship under the following circumstances:
In the event client’s American wife accompanied client to Egypt for two years
If she remained in the U.S. without client
There were numerous factors we used to successfully argue our case
Client’s wife does not wear the Muslim veil and dresses in an Americanized way which makes her an extremely obvious target in Egypt.
We included extensive evidence supporting that Egypt is extremely dangerous due to instability, terrorism, and lack of women’s rights, among other factors.
Country conditions (i.e. lack of suitable medical care, the economic crises, etc.) would also inherently result in exceptional hardship to her. Also, client’s wife is currently pursuing graduate school and is financially dependent on client.
Finally, we argued both scenarios in the event of a denial would have resulted in exceptional mental health hardship because client’s wife was diagnosed with depression and takes prescription anti-depressants. Client and his wife were alarmed and worried when they received the Request for Evidence, but issuance of these requests has become more common recently and we were able to aggressively respond on client’s behalf and get the case approved.
About Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement
Research scholars, professors participating in programs for medical or business training with J1 Visas are subject to a two-year home-country physical presence requirement. Under the Immigration and Nationality Act, 212(e) J-1 Visa holders are required to return home for at least two years after the exchange visitor program. If you cannot return home for two years, you must apply for exceptional hardship a Waivers. The Department of Homeland Security must approve your Waiver before you can change status in the United States or receive a visa in certain categories.
The associate editor at Gastroenterology & Endoscopy News (Website: https://www.gastroendonews.com/) reached out to us here at the Ranchod Law Group to see we could provide assistance in answering a gastroenterology fellow’s question for the “Fellowship FAQs” section of their website.
Gastroenterology & Endoscopy News is a gastroenterology magazine that publishes stories for physicians, providers and fellows. Every month they collect frequently asked questions fellows have about their career path, work-life balance, personal life, and questions about the field in general.
Here is a question which frequently arises amongst first-year Gastroenterology (GI) fellows:
“When should the training fellows on J1 or H1B visa start looking for jobs and how will the recent discontinuation of premium processing of H1B visa by USCIS affect their job search?”
Melissa Oklan, Esq. Associate Attorney here at the Ranchod Law Group, reformulated the question providing clear and easy to understand legal boundaries the topic, offering insights on how to go about seeking employment in the United States in light of the recent changes in immigration law.
When should the training fellows on J1 or H1B visas start looking for jobs and how will the recent discontinuation of premium processing of H1B Visa by USCIS affect their job search?
Many foreign medical graduates use either a J1-Visa or an H1B Visa to complete their medical residencies, fellowship, or other specialty medical training in the U.S. The timeline for a J1 or H1B doctor’s job search depends on their current status and their plan for their future immigration status.
J-1 doctors are subject to a two-year home-country physical presence requirement which requires the doctor to return to his or her home country for at least two years at the end of their program. This is also known as the foreign residence requirement.
Thankfully, there are several grounds to waive the foreign residence requirement. A J-1 doctor cannot obtain an H1B Visa or their lawful permanent residence (greencard) until after the J-1 doctor has obtained a waiver. This means that generally, with one important exception discussed below, a J-1 doctor cannot start their post J-1 employment until they get their J waiver approved. The timing for a J-1 doctor’s job search therefore depends on the type of waiver for which the J-1 doctor is going to apply.
One option is the Conrad State 30 Program. Each State’s Public Health Department or its equivalent is allowed to request 30 waivers per year for J-1 doctors. The program may be applied to specialists, as long as, the service area has a shortage of physicians practicing that specialty.
Doctors who are receiving a J-1 waiver based on the Conrad State 30 Program work in H1B status for three years and then they are no longer subject to the foreign residence requirement.
Have an offer of full-time employment at a health care facility in:
a designated Health Care Professional Shortage Area (HPSA)
a Medically Underserved Area (MUA)
a health care facility which serves patients from such a designated area (10 of the 30 requests may be for exchange visitor physicians who will serve at facilities which may not be located within a designated area but which serve a Medically Underserved Population (MUP))
sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years;
agree to begin employment at that facility within 90 days of receiving a waiver
Because most states require applicants to apply in September or October of the year before completion of their program, it is best for the doctor to have found employment 6 months prior to September/October. For this reason, J-1 waiver doctors who are going to pursue this waiver option should start looking for jobs a year and a half before their program is expected to end.
A sample timeline for a doctor finishing their program at the end of June 2019 would be to start looking for employment in January 2018 with the goal of securing employment in March 2018 or April 2018 and applying for their Conrad State 30 waiver in September or October as indicated by the state. An immigration attorney who focuses on this specific area of law can guide you and your employer through this process.
J-1 doctors who have a U.S. citizen or a lawful permanent resident spouse or child/ren can apply for an exceptional hardship waiver. Like the Conrad State 30 Program, an exceptional hardship waiver is another option for obtaining a waiver of the foreign residence requirement. If you plan to pursue a waiver under this option you should look for an immigration attorney with extensive experience and success in this particular area of law.
Some of the arguments our office has used to win exceptional hardship waivers for our J-1 doctors in the past include arguments concerning safety conditions for the American relative in the home country, unavailability of adequate care for the medical conditions of the American relative, unsuitability of educational or career options for the American relative, and exceptional hardship to the American’s mental health and in the case of a child, development, if forced to relocate to the J-1 doctor’s home country for two years, among other arguments. Exceptional hardship waivers can take 8 months to one year to adjudicate. In the example above, assuming a doctor is finishing their program at the end of June 2019 they should retain an immigration attorney around March/April 2018 and apply for their exceptional hardship waiver by June 2018. If a J-1 doctor wants to try to obtain an exceptional hardship waiver and use the Conrad State 30 Program as a backup in the event their exceptional hardship waiver is denied then they should apply at least one year before they have to turn in their Conrad State 30 Program application. The benefit of an exceptional hardship waiver over the Conrad State 30 Program is that with an exceptional hardship waiver the doctor does not have to work in a specific area or with a specific patient population.
Again, J-1 doctors cannot obtain an H1B visa or their lawful permanent residence (greencard) until after the J-1 doctor has obtained a waiver like the Conrad State 30 waiver or the exceptional hardship waiver. J-1 doctors can, however, begin employment with an O-1 visa even if their J-1 waiver has not been filed or approved. In order to qualify for an O-1 Visa the doctor must prove three of the following eight categories or other comparable evidence.
The eight designated categories are:
Receipt of nationally or internationally recognized prizes or awards;
Membership in associations which require outstanding achievements as judged by recognized by national or international experts in the field;
Published material about the J-1 doctors and his or her work;
Original contributions of major significance in the field;
Authorship of scholarly articles in journals or other major media;
A high salary or other remuneration for services;
Participation on a panel, or individually, as a judge of the work of others;
Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
J-1 doctors who pursue this option don’t have to work in a specific area or with a specific patient population (unlike the Conrad 30 program) and the O-1 Visa can be renewed year by year indefinitely (unlike H1B Visas). Again, J-1 doctors can get an O-1 even if they haven’t filed for their waiver. Also, premium processing is available for O-1 cases at this time.
Doctors on an H1B Visa should start looking for jobs along with their American peers, around one year before they complete their program.
Ideally an H1B doctor should have secured employment at least 6 months before their fellowship ends. Although premium processing is not currently available for most H1B cases, we expect premium processing to return for all H1B Visas by April 2018.
An H1B change of employer without premium processing can take 2-6 months. One possible problem for H1B doctors is the time limit for their H1B Visas. If an H1B doctor is approaching 6 years on their H1B Visa they need to plan for the process of eventually applying for their lawful permanent residency (greencard) so that they can continue to renew their H1B Visa during the process.
Another problem H1B Visa doctors face is that their current H1B is not subject to the 65,000 per year cap because their employer is a nonprofit entity related to or affiliated with an institution of higher education and those types of employers are cap exempt. If the H1B doctor is leaving the academic setting and trying to get employment with a private employer then they will become subject to the cap.
It is a lottery system for your H1B Visa to even be considered. Again, if a doctor qualifies for an O-1 Visa these problems are avoided.
This answer is only a very brief response to this question. Immigration law is highly specialized and nuanced. It is not good enough to retain just an immigration attorney, you need to retain an immigration attorney with extensive experience working with J-1 and H1B Visa doctors.
Melissa Oklan
Melissa Oklan, Esq. Ms. Oklan is an Attorney at Ranchod Law. The Ranchod Law Group is a law firm dedicated exclusively to the practice of immigration law with extensive experience and success meeting the immigration needs of J1 and H1B doctors. We represent individuals and businesses throughout the United States and around the world.
This is Kaushik Ranchod from the Ranchod Law Group and today we’re going to talk about fear of persecution and government funding. We’ve recently got a case approved, where the client received government funding. It was Fulbright Government Funding yet we were able to still obtain an approval.
In this situation the client would face significant persecution if they would have returned home. In this instance they were even interrogated by their home country during the last entry. They came back to the U.S. – If they were going to go back we were able to make arguments that if they were going to return to their home country, serious harm could occur to them. In such cases, especially fear of persecution are very serious because in many instances our clients life is at risk.
Here at Kaushik Ranchod, we take this very seriously but it is possible to get a fear of persecution waiver if the correct legal arguments are made and of course you meet the standard for this waiver.
I invite you to contact our office to find out more about whether you would qualify for an extreme hardshipJ1 waiver or a fear of persecution. We’ll start the conversation to see if we can be of assistance and how we could help you – perhaps we may not be able to help you, maybe you shouldn’t apply.
Give us a call now at (916) 613-3553 or write to us and describe your case – one of our immigration attorneys will be in touch once we have examined your case.
Let me tell you a story about one of my recent cases.
My client, Dr. Doe*, is a doctor-in-residency, as is his wife. The two have a baby and take turns caring for him. Because they both work long hours and have no family nearby, they are responsible for his childcare. They do not have anyone else to take care of their baby and cannot afford childcare.
However, Dr. Doe was required to return to his home country for 2 years to complete his home residency, a requirement of a J-1 visa. How would Dr. Doe’s wife be able to continue her work and care for their baby while he was gone?
Fortunately, our staff at The Ranchod Law were able to help.
We filed a Waiver application including a detailed legal brief on Dr. Doe’s behalf, showing the exceptional hardship his family would suffer if he were required to return to his home country. After several more steps, we were able to gain approval for an exceptional hardship waiver of the home residency requirement.
Stories like these happen every day. Luckily, Dr. Doe knew who to turn to, and his situation allowed for a Waiver to be granted. But what about other foreign medical professionals who do not have the same experience?
Another type of waiver, the Conrad 30, allows foreign medical doctors to avoid the 2-year residency requirement. The Conrad 30Waiver is contingent on an offer of full-time employment from a healthcare facility that falls in a shortage area.
If you are part of a healthcare facility that fits this category, or you know one that does, you might consider being part of the Conrad 30 program. We are happy to talk with you about Waiver types if you have questions – at call our office or send an email now!
Disclaimer: The testimonials, case results and/or endorsements do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Client married a woman born in the U.S. In order to win these cases we have to prove client’s U.S. Citizen wife would suffer exceptional hardship both if she went with client to his home country for two years and also if she remained in the U.S. while client completed his two year home residency requirement abroad. In terms of relocation we argued that the wife does not speak the language in client’s home country and she would be socially isolated and unable to continue working abroad. We also argued with our own supporting evidence there would also be safety issues which would accompany relocation. Either of the above scenarios, relocation or separation, would also result in exceptional financial hardship for the wife because client is the primary financial provider, a role, we argued, he could not fulfill from abroad. Either scenario we also argued would result in exceptional hardship to wife’s mental health. Either scenario would also result in wife losing her health insurance coverage which is dependent on client’s employment and she has needed for her past medical issues. J waiver cases with Department of State funding are notoriously difficult to win and now that his waiver has been approved we are so happy that this client can stay with his American wife in their home in the U.S.
Filed: December 22, 2016 Approved: September 1, 2017
Our client is a doctor who was subject to the two year home residency requirement. She was married to a lawful permanent resident and together they have U.S. citizen baby. In order to win these cases we have to prove client’s resident spouse would suffer exceptional hardship both if he went with client to her home country for two years and also if he remained in the U.S. while client completed her two year home residency requirement abroad. We argued that in the scenario of relocation where would be exceptional financial hardship to the resident spouse because the resident spouse would have to leave his employment and it would be very difficult to obtain good employment in China because his educational foundation, experience, and connections are all tied to the U.S. If he left his employment he would also lose his and their daughter’s health insurance which they need. In terms of separation client’s spouse does not feel capable of raising his daughter without his spouse. We also argued his daughter does not have lawful immigration status in China. In addition to needing his wife in the U.S. as a co-parent we argued he depends on his wife to be in the U.S. emotionally for his mental health and for regulation of his diet. We are so happy this accomplished doctor, loving wife, and mother, does not have to comply with the two year home residency requirement.
J1 Hardship Waiver Approved for Saudi Arabian Client
Filed: August 15, 2016 Approved: June 20, 2017
J-1 Hardship Waiver Approval, Client from Saudi Arabia
Client came to the U.S. on a J1 Visa and had a U.S. Citizen child. In order to win these cases we have to successfully argue that the U.S. Citizen would suffer exceptional hardship both if he/she remained in the U.S. without the J1 visa holder and also if he/she went back to the home country with the J1 visa holder for two years. Since in this case the U.S. Citizen is a child and the mother is on a J2 Visa, also subject to the home residency requirement, we successfully argued that if the waiver were denied the child could not stay in the U.S. alone and the child would be forced to relocate to Saudi Arabia for two years. In terms of exceptional hardship in Saudi Arabia, we discussed the danger and discrimination of Shia Muslims in Saudi Arabia in addition to other damaging conditions. In ten months, the case was approved and the family can now continue their lives in the U.S.!
