Many J-1 visa holders are subject to Section 212(e) of the Immigration and Nationality Act and are therefore inadmissible for permanent residence unless they 1) go home for a period of two years upon completion of their J-1 training or 2) receive a waiver of that two year home residency obligation.
One method for a J-1 Physician to obtain a waiver of the foreign residency requirement is to obtain a hardship waiver. Hardship waivers are based on a showing of exceptional hardship, not merely a showing that conditions are more difficult in the individuals home country. The requisite hardship must not be for the J-1 visa holder, but rather to a U.S. Citizen or Permanent Resident spouse or child of the J-1 visa holder.
Hardship factors may include:
1. economic hardships
2. political hardships
3. religious hardships
4. hardships caused by dangerous environment in the home country
5. medical hardships
6. social hardships
7. psychological hardships
8. and other hardships
Again, the US Citizenship and Immigration Services (USCIS) must find that the hardship is exceptional and not the normal hardship that satisfaction of the year requirement would impose on anyone. The strongest cases often involve situations where the U.S. citizen or legal permanent resident has a medical condition, or an English language disability or psychological vulnerability that would be exacerbated in the J-1 visa holders country. Other strong cases exist where the Department of State lists the home country as dangerous for U.S. citizens who would travel there.
In processing an application for hardship waiver, the case is submitted directly to USCIS. After USCIS makes preliminary determination of hardship, the case is forwarded to the Waiver Review Branch of the United States Department of State (formerly USIA). In making this determination, the Waiver review Branch will weigh the hardship to the U.S. Citizen or Legal Permanent Resident against the policy underlying the exchange visitor program. Normally, however the DOS concurs with USCIS’s determination. After DOS’s concurrence, the USCIS issues the final approval.
The hardship waiver application revolves around demonstrating that your U.S. citizen or permanent resident spouse and/or children will suffer exceptional hardship if you are required to fulfill the 2-year foreign residency requirement and return to your native country. Some of the documentation that can be submitted with your hardship waiver application are letters of support from treating physicians, colleagues, friends, demonstrating this hardship. Another important component of the hardship waiver application is the inclusion of a psychological report. The subject of the psychological report will be the psychological effect on the US citizen or permanent resident children and/or spouse if the J-1 visa holder is required to fulfill the foreign residency requirement and move to his/her native country for two years or more.
Another type of waiver for the J-1 visa holder is a Persecution Waiver. A persecution waiver may be available to a J-1 if a “well founded fear of persecution” can be established. The fear of persecution must be as a result of the J-1’s membership in an established group such as religious, political or professional group. There is no requirement that the alien have a spouse or child who is a U.S. Citizen or Legal Permanent Resident. In some cases it is appropriate to file simultaneously petitions under both the hardship and persecution categories.
Unlike waivers to work in underserved areas, approval of a hardship or persecution waiver does not require the J-1 visa holder to work in H-1B status for three years. Nor must a recipient of a hardship waiver work in a particular location in the United States. Rather, the waiver recipient may apply directly for permanent residency if there is affirmative basis for such an application. However, the waiver only waives the two year home residency requirement. It does not confer permanent residency status nor any type of work authorization.
Permanent residency and work authorization must be made in a separate application. Processing time for waiver applications may be substantial, often taking one year or more, but once approved, the alien is waived of his/her two-year residency obligation and can proceed directly to greencard.