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J-1 Hardship Waivers The J-1 visa program, also called the “Exchange Visitor Program,” allows aliens to come to the United States for a limited period to either work or study at a U.S. institution or company. Common purposes of J-1 programs are college and university studies, business training, and medical training. A J-1 exchange visitor must be sponsored by an organization, such as a company, university, or government agency, and the durations of J-1 programs vary according to the type of program. A significant advantage of the J-1 visa is that it is the only nonimmigrant visa that allows the dependents of the visa holder to work with USCIS authorization, as long as their income from the work is not supporting the J-1 visa holder. However, J-1 visas also involve a substantial limitation: the foreign residency requirement. Some types of J-1 visas require that the alien return to his or her home country for two years upon completion of his or her J-1 status. Until this requirement has been completed, the alien cannot apply for H, L, or permanent resident status. J-1 Waivers Aliens who wish to avoid the foreign residency requirement can apply for a J-1 waiver. There are five possible grounds on which a J-1 waiver can be obtained:
Hardship Waivers J-1 hardship waivers can be difficult to obtain because of the challenge of establishing that the J-1 holder’s spouse and/or child will suffer exceptional hardship beyond the difficulties that normally accompany a family’s temporary separation. The separation itself is not sufficient; rather, the J-1 holder must prove that some other adverse consequences will occur. Another difficulty is establishing that exceptional hardship would occur in both of the following situations:
The following are some common grounds used to establish that exceptional hardship will occur:
Various types of evidence can be used to establish that the hardship will occur. For example, if the U.S. Department of State has issued a travel warning about the J-1 holder’s home country, that could help to establish the presence of a threat to the spouse/child’s safety. Similarly, medical records can help to establish that the spouse/child’s health would be adversely affected by the relocation or separation. For more information about what evidence can be used in J-1 hardship waiver applications, we suggest that you contact an experienced immigration attorney. Procedure for Hardship Waivers Applications for J-1 hardship waivers must first be submitted to USCIS for review. If USCIS makes a finding of exceptional hardship, then the decision is forwarded to the Waiver Review Division of the U.S. Department of State, who decide whether to make a favorable recommendation. If the Waiver Review Division makes a favorable recommendation, the application goes back to USCIS, who makes a final decision on whether the waiver will be granted. If USCIS does not make a finding of exceptional hardship, this decision can be appealed. However, there is no appeal process for the Waiver Review Division of the Department of State. A Successful Hardship Case Recently, a J-1 holder—we’ll call her Laura—successfully appealed USCIS’s denial of her hardship-waiver case. Laura was married with three children; her spouse and her three children were all U.S. citizens. In her hardship-waiver case, she attempted to prove that her spouse and children would experience exceptional hardship if they either accompanied her to her home country or remained in the United States without her. Laura proved that her children would suffer exceptional hardship if they came with her to her home country based on the following evidence:
Laura proved that her children would suffer extreme hardship if they remained the United States without her by showing that she was their primary caregiver; thus, their separation from her would harm their psychological well-being. In particular, she believed that being separated from her youngest child, who was five years old at the time, would have negative effects that constituted exceptional hardship. Interestingly, Laura did not succeed in establishing that her spouse would suffer extreme hardship by either moving to her home country (of which he too was a native) with her or remaining in the United States with their children. Although Laura claimed that her husband’s medical and psychological problems would be exacerbated in either situation, the Administrative Appeals Office stated that she had not provided sufficient evidence of this; in particular, they pointed to his active lifestyle as evidence that he was functioning at a normal level. However, Laura’s appeal was still sustained because it was sufficient for her to show that her children would suffer extreme hardship as a result of relocating or being separated from her. In her case, it was not necessary to show that her husband would suffer extreme hardship as well. Finally, Laura’s J-1 waiver application was approved. ------ (06/19/2008) For more immigration news, please click here |
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