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:

• “No objection” – the alien’s home country’s government states it does not object to the requirement being waived

• Interested government agency request – a U.S. government agency with a vested interest requests that the requirement be waived

• Threat of persecution – the alien establishes that he or she will suffer persecution upon returning to the home country

• Designated state health agency request (for physicians only) – a designated state health agency or its equivalent requests that the alien stay to work in a full-time job with a healthcare facility serving an area of the United States with a shortage of medical professionals

• Hardship – the alien establishes that his or her U.S. citizen or permanent resident spouse and/or child will suffer extreme hardship if the alien is forced to comply with the foreign residency requirement

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:

• if the spouse and/or child accompanies the J-1 holder to the home country

• if the spouse and/or child remains in the United States without the J-1 holder

The following are some common grounds used to establish that exceptional hardship will occur:

• general conditions in the J-1 holder’s home country that would negatively affect the health, safety, or general welfare of the spouse/child

• serious financial consequences (of either relocating or separating) that would negatively affect the spouse/child

• medical or psychological conditions of the spouse/child that cannot be adequately treated in the J-1 holder’s home country, or that will be exacerbated by the spouse/child traveling to the home country or being separated from the J-1 holder

• threats to the safety of the spouse/child in the J-1 holder’s home country

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:

• One of Laura’s children had a chronic medical condition (bronchial asthma) that would be exacerbated by the environment of her home country (which has high levels of air pollution). The evidence submitted in support of this claim included a letter from the child’s physician and articles about the environment in her home country.

• Laura’s children had been raised and educated in the United States and were thoroughly integrated into the U.S. lifestyle. They did not speak the language of Laura’s home country and thus would have trouble adjusting to the culture there. (A previous decision by the Board of Immigration Appeals had found that a child in a similar situation would suffer extreme hardship by relocating to a different country.)

• There was evidence that the safety of Laura’s children would be threatened in her home country because they were U.S. citizens. There was a record of U.S. citizens being kidnapped and held for ransom there, as well as a threat of terrorism—in fact, the U.S. Department of State had recently issued a travel warning describing these risks.

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.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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