CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Exceptional Hardship
NATIONALITY: Filipina
LOCATION: Oakley, CA
Our client came from the Philippines as a J-1 teacher. Her J-1 status made her subject to the two-year foreign residency requirement. Our client would like to file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.
Unlike our other J-1 clients, our client could not pursue her waiver under the No Objection Statement or Interest Government Agency (IGA) due to her previous marriage in the Philippines. Her only option was through exceptional hardship.
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 April 26, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State. 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 medical documents and doctor’s reports for her U.S. citizen husband’s medical condition.
On May 9, 2019, our office filed an I-612 application to the USCIS. We asked for them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship in the scenarios of relocation and separation.
The USCIS issued a Request for Evidence (RFE) on March 16, 2020. They requested our client to submit more hardship documents. Our office thoroughly prepared the Response to RFE and filed it to the USCIS on May 22, 2020.
Eventually, the USCIS approved his I-612 waiver on December 8, 2020. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her husband’s I-130 petition in the United States.