CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Extreme Hardship
Our client came to the U.S. on a J-1 Visa in December 2009 from Egypt. He came to the U.S. for his research program, and his J-1 visa made him subject to the two-year foreign resident requirement. Our client would like to file an I-140 self-petition under the National Interest Waiver Category, and eventually file an Adjustment of Status (Green Card) Application. However, due to the two-year foreign residency requirement, he had to obtain a waiver first.
Unlike our other J-1 clients, our client could not pursue his waiver under the No Objection Statement or Interest Government Agency (IGA). Our client received government funding for his research program which made his case tougher for a No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship. The argument was that our client’s U.S. citizen son is experiencing exceptional medical hardships.
According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.”
Some of the factors in analyzing extreme hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).
After he retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On February 12, 2015 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State. Thereafter, our office prepared an affidavit for our client, an extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen son’s medical condition. On February 26, 2015, our office filed the I-612 application to the USCIS and asked them to issue and recommend this waiver based on the fact that our client’s son would experience exceptional hardship if our client needs to go back to Egypt for two years.
Eventually, the Department of State recommended a waiver for our client on October 7. 2015. Subsequently, the USCIS approved his I-612 waiver on October 14, 2015. Now that our client’s two-year foreign residency requirement is waived, he can file an I-140 NIW application along with his adjustment of status application in the United States.