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 August 2004 from Kenya. She came to the U.S. for her studies, and her J-1 visa made her subject to the two-year foreign resident requirement. After her J-1 status expired, she remained in the United States.
Later, she married her U.S. citizen husband in 2006. Our client’s husband intended to apply for an I-130 petition for her and our client wanted to file an adjustment of status application. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.
Our client could not pursue her waiver under the No Objection Statement or Interest Government Agency (IGA) due to lack of mandatory documents. Our client, though, would like to pursue her J-1 waiver based on the exceptional hardship standard. 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 exceptional 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 she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On July 23, 2014 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 of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen son’s medical condition. On October 15, 2014, our office filed an I-612 application to the USCIS.
Eventually, the Department of State recommended a waiver for our client on January 14, 2015. Subsequently, the USCIS approved her I-612 waiver on January 26, 2015. Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application in the United States along with her husband’s I-130 petition for her.