J-1 visa holders are subjected to the Foreign Residency Requirement. This means the applicant would have to return to his/her country for two years once the J-1 visa has expired. The U.S. government wants J-1 visa holders to use their newly acquired skills and knowledge to contribute to the development of their home countries. However, this requirement can be waived if the home country presence will cause hardship for your spouse or child who is a U.S. citizen or lawful permanent resident.
Common factors taken into consideration which may constitute exceptional hardship include:
- Economic or extreme psychological hardship
- Loss of health opportunities
- Loss of employment resulting in hardship
Exceptional Hardship Examples to Spouse
As previously mentioned, hardship to one’s spouse is also taken into consideration. Some exceptional hardship examples include instances where the spouse’s education or career would be disrupted, a scenario where they couldn’t financially uphold 2 households, psychological hardships, etc. be aware that while the exceptional hardship waiver technically only takes into account spouses and children, some consideration may be given to qualifying relatives or family members if they will face hardships.
The J-1 holder must be able to provide evidence or proof of hardship. J-1 holders with a child or spouse that has a mental or physical condition may be able to prove exceptional hardship if the treatments are not accessible in the J-1 holders home country.
However, the J-1 visa waiver’s exceptional hardship will not be granted for basic separation, readjustment, or any hardship caused to you.
Proving Exceptional Hardship to Your Qualifying Relatives
The U.S. does not take the welfare of its citizens lightly. Therefore, if a J-1 visa holder has a spouse or child that is a U.S. citizen or lawful permanent resident (LPR) of the U.S., there is a higher chance that he or she will have the foreign residency requirement waived. This may be easier if you can prove that your absence will cause exceptional hardship to the spouse or the child.
One of the most tenable reasons for getting a waiver is exceptional hardship that involves medical issues. As a J-1 holder, if you can prove that your spouse or child suffers from an illness that requires your presence for treatment, then you may be more likely to have the home country presence requirement waived.
You can provide proof showing that your absence in the U.S. will make you unable to provide needed care for your U.S. citizen spouse or child. Or you can show that it will affect the source of income needed to pay the person’s medical bills or provide insurance for that medical care.
Another way is to show evidence that the medical facilities in your home country are not adequate for the treatment of your spouse or child.
Outside of medical reasons, hardship might also be economic, political, religious, psychological, cultural, or due to compulsory military service.
For instance, if you already have a family business in the U.S. with which you support your U.S. citizen relative, this may also help. In this case, you can present proof showing that your absence from the U.S. would lead to the failure of the business and the failure can lead to exceptional hardship for the U.S. citizen.
How Do I Know If My Case is Exceptional?
The word “exceptional” here might create some confusion. Keep in mind that whether it’s for medical, financial, or other reasons, the most important thing about a J-1 visa waiver application is to have strong evidence. If you have any doubts, it is best to speak with an immigration attorney. That said, the following are some of the common exceptional hardship scenarios under which J-1 waiver is often granted:
This includes life-threatening illnesses or conditions requiring regular care and/or medications not available in the person’s home country such as Parkinson’s disease, cancer, AIDS, stroke, and down’s syndrome.
This includes the disorder that might arise with the child or the spouse if the J-1 visa holder leaves the U.S. Also, it might be the precipitation of the beginning of a disorder such as depression, anxiety, or post-traumatic stress disorder (PSTD).
If your home country is facing things such as war or terrorism, you can present this as a reason for the exceptional hardship waiver. People from war-ravaged countries may be able to leverage this option.
Social, Cultural, and Educational Hardship
If you can prove that your qualifying spouse or child may face exceptional hardship if they relocate with you to your home country, you may be able to qualify for a waiver. For instance, you are from a country where there is a religion or culture intolerance, this would make a strong case.
If your U.S. spouse or child with different religious or cultural views relocates with you to a place where those views are not accepted, they may face hardship due to this. Because this may affect them psychologically, physically, socially, economically, this might lead to hardship for your relative. Moreover, you could show that your home country’s language is different from that of your spouse and show that this barrier would cause hardship for your U.S. citizen relative.
This refers to a situation that may affect the financial wellbeing of your qualifying U.S. citizen or LPR relative. If you can prove that if you leave the U.S. for your home country, you might not be able to secure a job that will be able to provide for your spouse or child’s needs, they will likely approve your hardship waiver request.
J-1 Visa Waiver Exceptional Hardship Application Process:
- Submit the general waiver application to the U.S. Department of State
- The applicant is required to submit an Application for Waiver of the Foreign Residence Requirement (Form I-612) to the USCIS along with the designated fee.
- USCIS sends the decision to the Waiver Review Division of the U.S. Department of State. After reviewing the file in its entirety, the Waiver Review Division will inform the USCIS of its final recommendations. From there, the applicant will receive a copy of the decision.
- If the USCIS finds that the J-1 holder qualifies under exceptional hardship, then the Waiver Review Division will commence the recommendation process under this category.
The J-1 visa holder has the option to submit the Department of State waiver application either before the holder submits the I-612 form to the USCIS or after USCIS has approved the decision. Though, if the J-1 visa holder submits the Department of State waiver application before the I-612 form to the USCIS, and exceptional hardship was not granted, the fee will not be refunded by the U.S. Department of State.
To check the status of a pending application, visit the J-1 visa waiver page on the DOS site. Typical processing time can range anywhere from three to four months, depending on the case.
If You Don’t Qualify for J-1 Waiver Exceptional Hardship
If you don’t think you qualify for an exceptional hardship waiver based on the aforementioned criteria, there’s still hope. There are three other types of waiver for the two-year home residency requirement provided under the Immigration and Nationality Act.
- No Objection Waiver–Based on a no objection statement from your home country.
- Interested Government Agency (IGA) Waivers
- Persecution based on your risk of persecution for religion, political opinion or race.
FAQs – J-1 Waiver Exceptional Hardship
Below are some of the most frequently asked questions we receive regarding the J-1 waiver for exceptional hardship.
What is a “hardship” waiver?
In short, a hardship waiver is one which demonstrates extreme hardship conditions that would be endured should a foreigner be required to adhere to the two-year physical presence requirement.
What are some factors that may qualify for exceptional hardship?
There is a range of hardship factors, which are best explained by our Fort Lauderdale immigration lawyers; however, a few of the most common factors include economic hardships, political, religious, medical, social, and psychological.
What are the advantages of applying for an exceptional hardship waiver?
The first advantage of securing a hardship waiver is that it gives you the opportunity to settle down with your family and have peace of mind. It also allows you to work in the U.S. Moreover, provided there is a qualifying familial relationship, or there is evidence that an employer is willing to sponsor you, you may immediately start your J-1 to green card application once your waiver request is granted.
This is a better alternative to getting your hardship waiver approved via an interested government agency (IGA) that serves as a sponsor. The latter will spend three or five years in H-1B or another nonimmigrant status before he or she can apply for permanent residence.
What is the processing time for waivers?
While there is no definitive answer to the length of processing it may be substantial, often take upwards of a year or more for completion. To receive a more tailored answer, contact one of our immigration lawyers for an initial consultation. During that period, we’ll be better able to lay out a timeline for processing.
What are the disadvantages of hardship waivers?
As previously mentioned, the processing time can be quite discretionary, which means it’s not typically recommended to individuals with more than one application pending at a time.
How does your law firm ensure a favorable outcome?
Our office has strategies in place to align your case with the most favorable outcome. Of course, it’s impossible to guarantee one result or another since it’s at the mercy of the U.S. Department of State and the U.S. Immigration Service. We will, however, do our best to advance your case towards the most favorable outcome.
Is exceptional hardship the same thing as persecution?
No, exceptional hardship and persecution are two different things as far as the J-1 visa waiver is concerned. There are 5 bases under which a J-1 visa can be granted. They are No Objection Statement, Request by a Designated State Public Health Department, Request by an Interested U.S. Federal Government Agency, Exceptional Hardship to a U.S. citizen or LPR, and Persecution. Each basis has its own qualifying scenarios, and you cannot apply for two at a time. If you are having doubts about whether your case is best described as exceptional hardship or persecution, an immigration lawyer can help you out.
The time it takes for approval of a J-1 exceptional hardship waiver is not fixed, it might take months, a year, or more to process as the case may be.
How Our Immigration Lawyers Can Help
The importance of gathering evidence to back up your hardship claim cannot be overstated because you must make your waiver applications as persuasive as possible. That’s why it’s best to have an expert working on your case from the beginning.
Here at our firm, we have an excellent track record of helping exchange visitors apply for and get their J-1 visa approved.
Our immigration lawyers have an in-depth understanding of the J-1 visa waiver exceptional hardship process. We are available to answer any questions pertaining to your case. If you are unsure whether or not you apply under the exceptional hardship category, our immigration attorneys can provide additional clarification.
We’ll process your case in a timely and efficient manner to ensure the most favorable outcome. Give one of our attorneys a call to explore your options. You can contact us and book an appointment with one of our J-1 immigration lawyers today by filling out this consultation form.