J-1 Waivers Require a Showing of Extreme Hardship

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J-1 visitors subject to the two-year foreign residence requirement can obtain a waiver if they show extreme hardship to a US citizen or resident spouse, parent, or child

J-1 visitors are subject to a two-year foreign residence requirement if their country reported to the US State Department that the J-1 visitor's skills are possessed by few in the visitor's country, or if the US government or sending country's government paid some or all of the J-1 program expenses. Waiver approval rates are very low when the US government funded part of the visitor's J-1 program. The most well known international scholarship program the US State Department directly funds is the Fulbright Scholar program.

A J-1 visitor subject to the two-year foreign residence requirement must satisfy the requirement by remaining for two years in the sending country, although the applicant may count many periods in the home country cumulatively to meet the two year requirement.  Visitors who remain in the United States in J-1 status generally do not accrue unlawful presence because they are admitted to the United States for "duration of status" - which means until the visitor completes his program. Noncitizens generally do not accrue unlawful presence unless they were admitted until a specific date and overstayed, or until USCIS or the immigration court issues an order terminating the duration of status. But J-1 visitors subject to the two-year foreign residence requirement are not barred from all types of status. They can hold F-1 and O-1 status without completing the two-year foreign residence requirement. And if they hold a type of status that can be issued with an expiration date, they can accrue unlawful presence (for more on unlawful presence, click here).

A 212(e) waiver is available for J-1 visitors subject to the two-year foreign residence requirement if they can demonstrate that their spouse, parent, or child will suffer extreme hardship if the waiver is not granted. Ordinary hardship will not do. Generally the more government funding the J-1 program consumed, the more difficult it is to succeed in the waiver application. It is possible to obtain a no-objection letter from the sending country as an official expression that the sending country does not have a shortage of professionals with the same skills or that it no longer wants to be car.  But the US State Department rarely grants waivers for J-1 programs like the Fulbright that were funded by a US-gioernment institution.

If the J-1 visitor changes status or recieves formal notice of termination of status, he begins accruing unlawful presence.  After a year of unlawful presence, an unusual situation arises: the visitor must leave for two years, but if he departs for even five seconds, he is subject to the 10 year bar to reentering the United States. Christos had precisely this problem and was married to a US citizen and had US citizen children.

We applied for both the 212(e) waiver of the two-year foreign residence requirement and an I-601A unlawful presence waiver. The US State Department must approve the 212(e) waiver after USCIS recommends it for approval. While the 212(e) waiver considers hardship to a US citizen or permanent resident spouse, parent or child, the I-601 and I-601A waivers only consider hardship to a US citizen or permanent resident spouse or parent.

Our strategy in addition to carefully documenting the case's hardship was to focus on the legislative history of these two rules and argue that Congress probably did not intend them to interact in this way. For example, Congress specifically exempted immediate relatives of US citizens from the adjustment of status bar for those out of status. That permits immediate relatives of US citizens who accrued years of unlawful presence to adjust status without leaving the United States - and thus escape the 10 year unlawful presence bar (which is only triggered upon departing the United States). But J-1 visitors subject to the two-year foreign residence requirement who accrued more than one year of unlawful presence are barred from that path even if married to a US citizen. It seemed difficult to imagine a reason why Congress would mete out such different punishments to two similarly situated aliens, when its expressed intention was to make the J-1 visitor return home for two years, not 10.  This in itself, we reasoned, was a somewhat unusual hardship.

USCIS approved the I-601A waiver and recommended the 212(e) waiver for approval and the State Department approved the 212(e) waiver application permitting the client to obtain an immigrant visa and return to the United States immediately.

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