Many J-1 holders are subject to the so-called 2-year foreign residency requirement. This requirement compels these J-1 holders to return to their home country or their country of last residence at the end of their training.
In general terms, the following J-1 holders are subject to the 2-year foreign residence requirement: those whose participation is financed by a US government agency, or a government agency of his home country or country of last residence; and those who at the time the J-1 status is obtained fall under the periodically revised Department of State (DOS) skills list. Also subject are those who acquired their J-1 status after January 10, 1977 to pursue graduate medical training.
J-1 holders who do not comply with the 2-year residency requirement are precluded from certain immigration benefits. For instance, they are not eligible to adjust status; they may not apply for an immigrant visa or an H or L visa; they cannot change status (unless it is for an A or G visa or for a certain H-1B for physicians).
2- Year Residency Waiver
A waiver of the two-year residency requirement may be obtained upon a showing that the J-1 holder’s departure from the US would create exceptional hardship on the alien’s US citizen or permanent resident spouse or child.
Applying for a hardship waiver is one of the most complicated immigration applications, but with preparation and careful documentation of the resulting hardship to the US citizen or permanent resident spouse and/or child, a J-1 holder may obtain a waiver and need not leave the US to comply with the 2-year residency requirement.
“Exceptional hardship” depends on the facts and circumstances of a given case. It must be noted, however, that the exceptional hardship does not pertain to the J-1 holder, but to his/her spouse or child/ren, who must be US citizen/s or permanent resident/s.
Thus, the so-called merits of the application would depend on proof that the family members would suffer exceptional hardship if the family members were to accompany the J-1 holder to his/her home country; and if they were to stay in the US while the J-1 holder returned and stayed in the home country for two years.
Types of Hardships
Some USCIS decisions could provide some guidance on what constitutes “exceptional hardship” as would merit the approval of an application for the residency waiver.
In most cases, well-documented medical hardships are given relatively more weight by the USCIS or the DOS than other types of hardships. At any rate the applicant must submit evidence of any other hardship that the J-1 family would suffer because the totality of the evidence may lead to a finding of exceptional hardship even if each evidence, on its own, would not be enough basis to grant the waiver.
Examples of medical hardship would be a case where a member of the family would require medical care that is available only in the US and not in the J-1 holder’s home country, or exposure to disease that is widespread in the J-1 holders country of last residence.
Psychological or cultural hardship may include the effects of family separation in light of the number and age of the children, their ability to speak a foreign language and the length of residence of the J-1 and his/her family in the US.
Economic hardship may include considerable expenses of maintaining two separate households or difficulties in relation to an investment in the US that cannot be easily liquidated.
Proof of “irreparable harm” from loss of educational opportunities or inability to obtain comparable employment to support the J-1 holder’s family may also be submitted in support of the waiver.
A J-1 waiver applicant may also submit proof of possible persecution or harm due to “family member’s race, religion, political views or US citizenship.” Although persecution may be considered a basis for the grant of a hardship waiver, this is better used for asylum applications because the latter requires a lower standard of proof and an asylum grant has the same effect as a waiver of the residency requirement.
The bottom line in all hardship waivers is being able to make the case with sufficient evidence.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com