Hardship Waivers for J-1 Physicians

One of the avenues toward a potential waiver is known as the Hardship Waiver. This waiver is based on a showing of exceptional hardship to the applicant's U.S. citizen or lawful permanent resident spouse and dependents. In order to qualify for a hardship waiver, the applicant must establish:

That the qualifying relative(s) would experience exceptional hardship if they were to remain in the U.S. while the J-1 visa holder returns to the home country for two years, and

That the qualifying relative(s) would experience exceptional hardship if they accompany the J-1 visa holder back to the home country for two years.

In conjunction with determining whether exceptional hardship exists, USCIS will also consider whether it is in the public interest of the United States for the J-1 to be admitted to the United States. Establishing public interest will generally be easier for J-1 physicians than for other applicants as it is extremely advantageous to the United States and its citizens and residents to retain skilled physicians.

Some examples of successful hardship grounds are:

Danger to life and well being of the U.S. citizen or permanent resident spouse and/or child. This claim is effective if one can prove that the U.S. citizen or permanent resident spouse and/or child will face certain harm because of their race, religion, etc. Please note that if a travel warning from the U.S. Department of State has been issued recommending that U.S. citizens and/or permanent residents avoid travel to a particular country, the likelihood of receiving a hardship waiver approval certainly increases.

An existing physical or mental condition and/or disease that suffered by the U.S. citizen or permanent resident spouse and/or child. This claim usually rests heavily on a lack of adequate medical treatment in the J-1 visa holder's home country and the severity of the health condition and/or disease.

An interruption in the career of the U.S. citizen or permanent resident spouse, making it difficult to re-enter the field when he/she returns in two years. This claim usually requires evidence that shows that the person's career or field is advancing at such a pace that to leave would cause irreparable harm to the spouse's future in the field. This ground will also often be tied to a claim of financial hardship if the spouse will be unable to find work in the home country or, in the alternative, if the spouse were to remain in the U.S. but would not be able to generate enough income to support either the applicant or any children the couple has.

The significance of a USCIS approved Application to Waive Foreign Residence Requirements is limited to the waiver of the two year home requirement. It does not, however, place the J-1 into a legal nonimmigrant status, nor does it imply authorization to work in the U.S. Upon obtaining this type of waiver, the applicant will be eligible to obtain permanent resident status providing that there is some independent petition upon which the application for permanent residence will be based.