[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, The Physician Immigration Handbook.]
While most physicians seeking to waive INA Section 212(e)’s home residency requirement pursue interested government agency waivers, some physicians choose to pursue one of two other waiver options mentioned in the statute. USCIS may waive the requirement if they determine that enforcing the home residency requirement would “impose exceptional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of his nationality, race, religion, or political opinion.”
What are the steps in a J-1 hardship or persecution waiver?
Hardship and persecution waiver applicants use a different process than in interested government agency cases.
All J-1 waiver cases start with filing a DS-3035 online and hardship waiver applicants would select either “hardship” or “persecution” as the basis of the waiver application and pay the $215 application fee by mail afterwards.
In interested government agency cases, the applicant next files an application with the IGA and the IGA forwards its recommendation to the State Department. The State Department issues a recommendation for the waiver to USCIS and USCIS issues an I-612 approval of the waiver.
In hardship and persecution cases, J-1 waiver applicants file a Form I-612 application with the USCIS service center handling such cases (currently the California Service Center). USCIS makes a determination of whether it believes the hardship or persecution case has been proven and then forwards the file to the DOS Waiver Review Division for a recommendation.
If the WRD recommends the waiver, USCIS routinely will issue a final approval of the waiver application. If the WRD declines to recommend a waiver, USCIS will deny the waiver application.
What does “exceptional hardship” mean?
The Immigration and Nationality Act doesn’t define “exceptional hardship” though in general the hardship must be unusual and significant. USCIS’ Adjudicator’s Field Manual instructs examiners to look to a series of cases over the last fifty years to make the determination. But, in general, the Manual instructs adjudicators to consider the following principles:
- The claimed hardship must be considered for the qualifying spouse and for qualifying children, not for the J-1.
- An exceptional hardship must be considered under the circumstances of both relocation abroad and separation on the qualifying spouse or children.
- A variety of common factors may be considered in the aggregate to render a determination of exceptional hardship, but, on the whole, the hardship to qualifying family members must be beyond the normal hardship expected from a temporary relocation or separation.
Hardship waiver applicants often make the mistake – understandably – of assuming that the pain of being separated from a family member is enough to support a hardship case. Unfortunately, that is generally not true unless the waiver applicant can articulate specific factors in the case that distinguishes the applicant’s case from others.
What if the hardship is to the J-1 and not a family member?
If the J-1 does not have qualifying family members, but would face an exceptional hardship if returned home, the application is not eligible for a hardship waiver. However, the State Department will sometimes act as an interested government agency if the facts are suitable.
What are examples of hardship factors?
Case law provides a number of examples of hardships that will be considered. They tend to fall in to the following areas:
The Composition of the family
- Is the qualifying relative a US citizens or a permanent resident (US citizen cases are considered stronger)?
- Is the qualifying relative a spouse or a child (children tend to make the case stronger and having a qualifying spouse and children make the case stronger with a US citizens spouse and child combination being the strongest)?
- Hardships to third parties (such as grandparents) are not enough on their own to qualify to submit a waiver, but such hardships can strengthen the case in combination with documenting the hardship to a qualifying spouse and/or child.
- Is the US citizen spouse naturalized or native-born (some USCIS examiners may view a naturalized spouse, particularly one originally from the J-1’s home country, better situated to manage the home residency requirement)?
- Is the marriage a long one or performed recently?
Economic hardships
- Will family members face major career disruption if forced to go abroad?
- Is the qualifying spouse in the middle of an educational program that will be disrupted by returning to the home country?
- Do the qualifying relatives lack familiarity with the country’s culture and customs?
- Will a child’s essential needs go unmet as a result of complying with the home residency requirement?
- Will a mortgage go unpaid as a result of satisfying the home residency requirement?
- Are there major medical bills that will not be able to be paid as a result of complying with the home residency requirement?
Medical hardships
- Does the qualifying relative suffer from a serious medical condition? Note that both USCIS and the State Department routinely seek the opinions of medical experts.
- Does more than one family member suffer from a serious medical condition?
- Are effective treatment available in the home country?
- Does the qualifying relative need the J-1 to help as a caregiver in the US?
- Would the qualifying relative suffer from a mental hardship beyond the norm such as fear if the J-1 is returning to an unstable country?
- Are the environmental conditions in the home country particularly dangerous?
Political and security-related hardships
- Is the home country dangerous as a result of extreme crime rates, political instability, kidnapping risks, or for other reasons?
- Is the US State Department warning Americans to avoid travel to the country?
- Is the family potentially at greater risk because of being a member of a particular religion, minority or other group?
- Are families with American ties more likely to be targeted for violence in the home country?
Psychological hardships
- Was the qualifying relative receiving regular psychiatric treatment before the waiver application was submitted?
- Would the return to the home country interfere in the qualifying relative’s psychological treatment?
Sociocultural hardships
- Are women routinely mistreated in the home country’s culture?
- Do the qualifying relatives speak the language of the home country (this tends to be more important for the spouse than for children)?
- Is the educational system in the home country adequate to meet the needs of qualifying children?
Source of funds
- Did the J-1 receive funds from a US government agency? If so, the application will be adjudicated under a much tougher standard.
Public policy
- Will the J-1’s return to the US harm US citizens (e.g. a teacher of deaf children in an area where such teachers are difficult to recruit or an employer of many US workers will have to terminate the employees because the company will need to be shut down as a result of the J-1’s departing the US)
- Will the loss of the J-1’s services negatively affect a government agency?
- Does the J-1’s family have particularly strong ties to the community?
- Is the J-1 engaged in work which will provide the American public with an important benefit (e.g. one engaged in critical medical research or an engineer whose work has key safety benefits)?
- Is the US citizen or permanent resident spouse in the military (thus making it impossible for the spouse to go to the home country or to care for the American children if and when the spouse is deployed)?
Isn’t being separated for two years itself a hardship?
Unfortunately, the case law and the history of adjudication in this area makes it difficult to win on this argument alone. The adjudicating agencies take the position that the hardships associated with a family being separated must be greater than other families facing the home residency requirement. There must be additional aggravating factors at work for the separation argument to work. This is not to say that one should skip making the argument. But relying on this as the main factor in a hardship case will normally not work.
What does one need to prove to base a waiver on persecution?
A J-1 may seek a waiver if he or she “would be subject to persecution on account of race, religion, or political opinion.” To win a persecution claim, an applicant must show that it is probable the applicant will be subjected to persecution. If USCIS finds persecution is a genuine probability, then the State Department’s Waiver Review Division will make it’s determination. Under the regulation found at 2 CFR 41.63(b), after the Waiver Review Division determines that the persecution claim is meritorious, it is to review the program, policy and foreign relations aspects of the case, including consulting with the Bureau of Human Rights and Humanitarian Affairs of the Department of State before making a favorable recommendation.
Is a J-1 who gets a hardship or persecution waiver exempt from the H-1B cap?
No. Unlike shortage area waivers, physicians who secure hardship and persecution waivers cannot avoid the H-1B cap.
Does a J-1 who gets a hardship or persecution waiver need to wait three years before seeking permanent residency?
No. Unlike shortage area waivers, physicians who secure a hardship or persecution waiver can immediately seek permanent residency (assuming they have a basis for a green card application). So, for example, a successful hardship waiver based on a US citizen spouse usually means the physician can immediately seek a green card through the US citizen’s sponsorship.
What’s the difference between “persecution” and the asylum process? Why choose one over the other?
There are several important differences between a persecution waiver and an asylum application and these differences often are enough to make one pick one category over the other.
First, the definition of “persecution” for a persecution waiver is narrower than for an asylum petition. Asylum applications require one demonstrate that he or she has a “well-founded fear of persecution” as opposed to showing that the alien “would be subject to persecution”.
Second, the bases for a persecution are narrower
for an asylum claim. J-1s can only seek a persecution waiver on account of the following:
- race
- religion
- political opinion
Asylum applications can be based on
- race
- religion
- nationality
- membership in a particular social group
- political opinion
However, many practitioners believe that the overall adjudication standard applied in asylum cases is higher than persecution cases despite the narrower definition of persecution.
Third, asylum applications must be filed within one year of arrival in the US unless circumstances have changed in the home country after the J-1 arrived in the US. There is no one-year filing requirement applicable to persecution waivers.
Fourth, asylum applicants can file for permanent residency once the individual has been in asylum status for more than one year. There is no green card available to the J-1 persecution waiver holder other than those available based on family, employment or the Diversity Visa Lottery.
Asylees can lose that status if circumstances change in the home country and the asylee has not yet become a permanent resident. J-1 persecution waiver applicants are required to inform DOS if circumstances change while the waiver application is pending. However, there is no provision in the rules for revoking a persecution waiver after it has been issued based on changed circumstances in the home country.
What happens to the J-1 home residency requirement if asylum is granted?
Individuals granted asylum are no longer subject to the home residency requirement.
Can one apply for both a persecution waiver and asylum?
Yes. There is no bar to pursuing both strategies simultaneously.
What is one’s status after being granted a J-1 hardship or persecution waiver?
The individual would still be a J-1 visa holder and there is no non-immigrant or other status granted to the waiver recipient simply because the waiver has been granted. So the J-1 would need to eventually transition to a work visa, a green card, or some other status or risk being out of status.
Can a hardship or persecution waiver denial be appealed?
If USCIS denies the first part of the hardship or persecution waiver application, an appeal is permitted. State Department determinations may normally not be appealed except in very unusual circumstances. However, unless US government agency funding is involved, the State Department has routinely granted waiver recommendations when USCIS has found persecution or hardship.
*Many thanks to my good friend Bruce Hake who is a leading national figure in J-1 hardship processing. His extensive writing on this subject was enormously helpful in preparing this chapter.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.