J1 Waiver > Exceptional Hardship

EXCEPTIONAL HARDSHIP J-1 WAIVER

One method of obtaining a waiver of the two-year home residency requirement is to apply for a waiver based on the exceptional hardship that would accrue to your U.S. Citizen or permanent residence spouse or child should you (and/or they) be forced to return to your home country for a period of two-years.

Frequently Asked Questions about the J-1 Hardship Waiver Category

1. What is a 'hardship' waiver?

Representing approximately 6% of all waivers granted to physicians holding J-1 visas, the 'hardship' waiver requires a persuasive showing that the American citizen or permanent resident spouse or child(ren) will suffer exceptional hardship if the spouse and/or child(ren) remain in the United States while the J-1 physician returns home for two years and will also suffer exceptional hardship if the spouse and/or child(ren) go home with the exchange visitor for two years.


2. What are the benefits of applying for a 'hardship' waiver?

The advantages of pursuing a hardship waiver are that, if approved, the physician may immediately apply for permanent residence (if there is a qualifying family relationship or an employer willing to sponsor the physician) rather than spending three (or five) years in H-1B status as may be required if an interested government agency is a sponsor in the waiver process. In addition, the physician is not limited to medically under served areas in his/her choice of employment, but may accept a position in any part of the country. The main disadvantage is that the outcome and processing time of a hardship waiver is difficult to predict.


3. What factors are important in determining whether a 'hardship' waiver request will be approved?

The USIA (United States Information Agency) has provided the following possible factors for consideration of an exceptional hardship waiver; the Agency has emphasized that these factors have no particular weight or order.

Factors which the INS and the USIA consider in their determinations include:

• a. Medical hardships including severe and life-threatening illnesses and conditions, or illnesses and conditions requiring regular care and/or medications not available in the physician's home country, such as asthma, cancer, AIDS, downs syndrome, and diabetes.



• b. Psychological hardships including the exacerbation of an existing disorder or the precipitation of the onset of a disorder, such as post traumatic stress disorder, or severe depression, if the foreign residence requirement is enforced.



• c. Country conditions. For example, J-1 physicians from Somalia, Rwanda, Iran, Iraq, Libya and war-ravaged countries would have a stronger case in demonstrating extreme hardship to U.S. citizen children.



• d. Social, Cultural and Education related hardships which would result from the physician's spouse and/or child relocating to a foreign country whose language they do not speak and whose culture is alien to them (e.g., an American Catholic woman relocating to Libya).



• e. Economic hardship to the physician's spouse and/or child if the foreign residence requirement is enforced.



• f. Career Interruption or Destruction to the physician's spouse (e.g., an American citizen actress relocating to Iran with J-1 spouse).



• g. Political and religious hardship, including fear of violence and oppression based on political views, race, ethnicity, or gender or sexual preference.

USIA emphasizes that separation from a U.S. Citizen or legal permanent resident spouse or child in and of itself is not likely to outweigh program, policy and foreign relations considerations in favor of the physical presence requirement. This includes applications alleging extreme hardship to a spouse due to inferior employment opportunities in the home country. In addition, the fact that a U.S. Citizen family member is a naturalized citizen of the U.S. and a native of the waiver applicant's home country is likely to influence USIA's consideration of arguments alleging that a family member will have problems adjusting to life abroad.

4. Please give me an example of a 'hardship' waiver that your office was successful in obtaining.

Our office has had outstanding success with hardship waivers, as we are careful to accept only those cases for processing which we believe have real merit. Recent successful cases that we have processed include the following:

• Hardship waiver application of a Venezuelan physician who was newly married to a U.S. Citizen (2 years) and had one U.S. Citizen child; hardship argument based on emotional suffering newly married American spouse and American child would face being separated from husband for two-years;
  
  
• Hardship waiver application of an Indian physician whose 9-year old U.S. Citizen daughter suffers from severe allergies; hardship argument based on health risks to U.S. Citizen daughter based on high level of allergens present in India;
  
  
• Hardship waiver application of an Indian physician from Kashmir with two young U.S. Citizen daughters; hardship argument based on deteriorating conditions in Kashmir and dangers American citizens would face residing there; and
  
  
• Hardship waiver of a Peruvian J-1 physician with leukemia married to U.S. Citizen with one child; hardship waiver argument based on lack of proper medical care available for physician's condition in Peru.

5. What are some disadvantages of applying for a 'hardship' waiver?

The main disadvantage is that the outcome of these applications are difficult to predict, as the INS and State Dept. waiver review officers have significant discretion in reaching their decisions to approve or deny the application. Also, hardship waiver applications have been known to require 6-9 months for approval.


6. How can MDgreencard.com help me in this process?

The attorneys at MDgreencard.com have special expertise in preparing 'hardship' waiver applications and in determining if the facts surrounding a physician's hardship request are strong enough to merit a reasonable chance of success.