CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Extreme Hardship
Our client came from Egypt and has maintained his J-1 status from 2007. He got his J-1 status as a Ph.D. Student in the United States. His J-1 status made his subject to the two-year foreign resident requirement. Our client would like to file his adjustment of status application along with his I-140 NIW 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 No Objection Statement or Interest Government Agency (IGA). Our client also received government funding for his research programs which made his case tougher for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship standard. In fact, 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 an exceptional hardship basis. In August 2016 the J-1 Waiver (Form DS-3035) Application was filed to the Department of State. Thereafter, our office prepared affidavit of our client, 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 conditions. On August 15, 2016, our office filed I-612 application to the USCIS and asked for them to issue and recommends 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 USCIS approved his I-612 waiver on March 22, 2017. Now that our client’s two-year foreign residency requirement is waived, he can file his adjustment of status application along with his NIW I-140 self-petition in the United States.