Q. What is a hardship waiver?

A. Current or former holders of J-1 (exchange visitor) status subject to the two year home residence requirement, who have an American citizen or permanent resident spouse and/or child, are eligible to file for a hardship waiver, requesting that the United States government waive the two year home residence requirement.

Q. What is the success rate of your firm in hardship waiver cases?

A. Our firm only accepts cases which we believe, bases on thirty years of experience will be approved, and thus our rate is 99%.

Q. How long does it take to process a hardship waiver?

A. The I-612 hardship is initially filed with USCIS. Officials at USCIS are currently taking 4-6 months to make the initial determination as to whether a claim of exceptional hardship has been made.

If USCIS finds exceptional hardship, they forward their favorable recommendation to the
Waiver Review Division (WRD) of the Department of State for their opinion.

The Department of State generally takes between 2-4 months to make its decision. If the hardship claim is based on medical or mental hardship, the WRD requests an advisory opinion from the Department of State Medical Office, and the medical opinion can add 4-6 weeks on to the processing time. The medical opinion advises the WRD as to whether the claimed medical or mental condition can be treated in the home country.

If the WRD concurs with the USCIS waiver recommendation, it will return a simple one-page form, known as an "I-613," to USCIS with one of two boxes checked (granted or denied).

Attorneys are faxed a copy of the I-613 by the WRD.

If the WRD does not recommend a grant of the waiver to USCIS, the application must be denied.

Note that if the USCIS does not make an exceptional hardship finding, the application is denied and not forwarded to the Department of State. The remedy for a USCIS denial at this stage is to take an administrative appeal to the Administrative Appeals Office (AAO) of the USCIS. Such appeals take up to a year but can be expedited in some circumstances where the J-1 applicant's status may expire before a decision is made.

Note further that if the WRD of the Department of State does not concur in the exceptional hardship finding by USCIS, the case cannot be appealed. However, there are several avenues to request that the WRD of the Department of State reconsider the case.

Once both USCIS and WRD of the Department of State agree exceptional hardship has been established, the WRD of the Department of State will forward its waiver approval to USCIS which issues a final approval on Form I-612.

Q. What are the hardship waiver processing procedures?

A. Send a check in the amount of $215.00, payable to the Department of State, along with the current version of the Data Sheet (DS 3035) to the U.S. Department of State, Waiver Review Division, P.O. Box 952137, St. Louis, MO 63195-2137. You may also complete the DS-3035 and obtain a case number online at: https://j1visawaiverrecommendation.state.gov/accessController.asp?page=7.

However, you must still mail the fee, DS-3035 form, and other required documents to the St. Louis address. Once your fee is processed, you will receive a letter in the nature of a receipt with your name and waiver review case number along with a standard form letter explaining the process. NOTE: This fee should be paid at the earliest possible time to avoid delays in filing a waiver application. By paying the fee, you are not obligated to file a J-1 waiver nor will such affect your J-1 status.

The Waiver Review Division (WRD) of the Department of State will not review your case without the case number. Make certain your Department of State waiver review case number is written or stamped on every single page of the filing. Your application may be rejected for failure to do so.

The waiver application is filed on Form I-612 and must be filed with the required filing fee of $545.00 with USCIS. The form can be downloaded from the USCIS home page at: www.uscis.gov. The form is deceivingly simple. It should not be completed without consulting with expert attorneys in the field of hardship waivers. It is recommended that an immigration attorney with a proven track record in hardship waivers be retained to represent you in filing a hardship petition. Your attorney's reputation counts for much in the hardship waiver process.

Q. What is the most common reason for denial of a hardship waiver?

A. The standard reason for rejection is that the exchange visitor has failed to prove both prongs of the hardship waiver equation; that is, that the qualifying relative(s) will suffer exceptional hardship both if the qualifying relative(s) relocate to the home country with the exchange visitor for the two year period AND if the qualifying relative(s) remain in the United States without the exchange visitor for two years. Both prongs must be proven, or the waiver will not be approved.

Q. May a J-2 spouse or child file an application for a hardship waiver if the J-1 is not applying for a hardship waiver?

A. No, only the J-1 principal may apply.

Q. May a J-1 physician obtain a work permit while awaiting the outcome of a hardship waiver?

A. No, work permits are not available to applicants for hardship waivers, even if married to an American citizen.

However, the J-1 may apply for another non-immigrant status, such as F-1 student, O-1 alien of extraordinary ability or any other nonimmigrant status, except H or L, while awaiting the outcome of a hardship waiver.

Q. Does marriage to an American citizen eliminate the two-year home residence requirement?

A. No. A J-1 physician who marries an American citizen is still subject to the two-year home residence requirement, and must either obtain a waiver or fulfill the requirement before he or she is eligible to obtain permanent resident status. If an interested government agency waiver is obtained, the physician must still work in H-1B status for three years before applying for permanent residence.

Q. May I file an application for a hardship waiver based on the fact that I am pregnant with a child who will be an American citizen before the child is born?

A. If the only eligibility for a hardship waiver rests on the anticipated birth of an American child, you must wait until the child is born to become eligible to file the waiver. However, you may prepare all documentation and file the waiver as soon as the child is born and you have a certificate of birth.

Q. Do USCIS and the WRD of the Department of State give the same weight to having a permanent resident relative as it does to having an American citizen relative?

A. While §212(e) of the Immigration and Nationality Act, the section of the statute governing hardship waivers, accords the respective statuses equal weight, in practice LPR relatives are given less weight than United States citizen relatives in hardship cases. However, this is not a rigid rule, and the facts underlying the case are the most important consideration.

Q. If I am married to an American citizen or lawful permanent resident, when should the immediate relative immigrant visa petition (I-130) be filed?

A. Generally, it should be filed and approved before the hardship waiver is filed. However, there are other considerations which factor into this decision, and you should consult with an expert attorney in order to decide upon the appropriate strategy. For example, if the J-1 is going to need to obtain a J-1 visa from a consular post after the relative immigrant visa petition is filed, a consular officer could legitimately deny the J-1 a new visa on the ground that the filing of the visa petition is evidence of an intent to immigrate.

Q. What are the advantages and disadvantages of a physician pursuing a hardship waiver instead of an Interested Government Agency (IGA) (State 30, VA, ARC, DRA) waiver?

A. The advantages of pursuing a hardship waiver are that, if approved, the J-1 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 years in H-1B status before filing for permanent residence. In addition, the physician is not limited to working in medically underserved areas but may accept employment anywhere.

Another big advantage of pursuing a hardship waiver is that it may be filed at any time during the J-1 training program and one can pursue both a hardship waiver and an interested government agency waiver at the same time.

The main disadvantage is that the outcome and processing time of a hardship waiver are more difficult to predict than with an IGA waiver, and the physician may be subject to the H-1B cap.

Q. How do I contact the WRD?

A. The WRD is under the jurisdiction of the State Department's Bureau of Consular Affairs. The website is: http://travel.state.gov. The mailing address is:

Department of State
Waiver Review Division
Visa Office
SA-1, Room L603
2401 E Street, N.W.
Washington, D.C. 20522-0106

Q. What are my chances of success?

A. The preparation and adjudication of a hardship waiver application is complex, and both the USCIS and the WRD apply strict standards in determining whether the departure would cause extreme hardship to a United States citizen or permanent resident spouse and/or child.

Note that exceptional hardship must be proven in the alternative; it must be demonstrated 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. The petition must establish hardship in both circumstances in detail. Proving exceptional hardship under one alternative is only half the case.

Factors which the USCIS and the WRD consider in their determinations include:

1. 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, Downs Syndrome, or diabetes. Note that the WRD will send waiver applications claiming medical or mental hardship to the Department of State Medical Office for review as to whether the conditions in the home country constitute medical hardship.
   
   
2. Psychological hardships including the exacerbation of an existing mental illness or 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. Note that the WRD may request updated evidence of psychiatric treatment if the hardship claim is based on a mental disorder or illness and the qualifying relative is in therapy when the application is filed.
   
   Choose the forensic psychologist or psychiatrist very carefully, based on their experience and ability in preparing forensic evaluations.
   
   
3. Country conditions. Country conditions are an extremely important factor in a hardship waiver case. It would be unseemly for the United States government to effectively force American children to live in countries it has labeled state sponsors of terrorism or states infested with terrorists or undergoing anti-American upheavals. For example, J-1 physicians from Iran, Syria, Sudan, Pakistan, and war-ravaged countries would have a strong case in demonstrating extreme hardship to U.S. citizen children.
   
   
4. Social, Cultural and Educational 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 Christian feminist, who does not speak Arabic, relocating to Saudi Arabia).
   
   If the qualifying relative is a child with a diagnosed learning disability, the lack of special education in the home country is accorded great weight.
    
   
5. Economic hardship to the physician's spouse and/or child if the foreign residence requirement is enforced. This factor is given little weight when considered alone. However, the financial and economic hardship to a qualifying relative, when considered with other factors, may rise to the level of exceptional hardship.
   
   
6. Career interruption or destruction to the physician's spouse. Examples of such fact patterns would be: an American citizen solo law-practitioner relocating with J-1 spouse for two years, inability of the qualifying relative to obtain leave from a position held for many years, inability of either spouse to find work in the home country, and situations where the qualifying spouse cannot be away from position for two years without becoming unemployable because of a knowledge gap.
   
   In the 2009 economy, it is expected that the USCIS and WRD of the Department of State will give much more weight to loss of employment by qualifying relative, given that it is much more likely now that the job will not be held open for two years.
   
   
7. Political and religious hardship, including fear of violence and oppression based on political views, race, ethnicity, gender or sexual preference.
   
   The strongest cases tend to involve educational, mental and medical hardships. Taking the above factors into account, you should consult with more than one competent immigration attorney experienced in hardship waiver cases to determine your chances of obtaining a hardship waiver, given the totality of the circumstances.

Q. Can you provide examples of the types of cases which will have a high probability of success and cases which have a low probability of success?

A. It is very important to note that every case is different. The best example I can give you of how important it is to obtain multiple expert attorney opinions in the context of a hardship waiver is a case our office handled a number of years ago. A French physician was married to an American citizen and had an infant American citizen child and felt there was compelling exceptional hardship. They had seen five immigration attorneys who told them their case did not pass the "laugh test."

They appeared to be rational people, and we interviewed them. We learned that both the American husband and the J-1 physician wife were descendants of Holocaust survivors and their parents had been in concentration camps during World War II. Common sense suggested that descendants of Holocaust survivors are particularly susceptible and vulnerable to developing a number of mental disorders when faced with a governmentally enforced separation. They advised me they had not been able to articulate this and no prior lawyer had even asked. The attorneys seemed to stop their analysis upon learning the home country was France. The waiver was approved.

Tips on Fact Patterns which do not appear to carry much weight with WRD

• Biological clocks ticking. The argument that it is necessary for the family to stay together in the United States so that a woman can have a child does not carry much weight. 
  
  
• Single parent scenario. Arguing that the spouse will be left alone in America for two years and will have to both work and care for a child does not make the cut.
  
  
• Having an American citizen child who is not sick. That alone is generally insufficient unless the country conditions in the home country would endanger a child's health or life. Applicants from countries engaged in civil wars and countries such as Iran and Iraq have a possibility of success if both parents are required to leave for two years. If one parent is an American citizen, the argument will be more difficult.
  
  
• Exchange visitors from Pakistan who have an American child are generally being approved at the present time, with a well-prepared case.

Q. In which countries may the two-year foreign residence requirement be satisfied?

A. The two-year foreign residence requirement may only be satisfied in the country of nationality or last permanent residence as indicated on Form IAP-66 or DS-2019. If the J-1 is a citizen of one country and a permanent resident of a second country, the home residence requirement must be satisfied in the country which issued the assurances for the J-1 sponsorship. These countries must be listed on the IAP-66 or DS-2019. However, there are circumstances where the Department of State will act as the interested government agency where it can be demonstrated that there is "impossibility" of returning to the home country.

Q. If I was a citizen of one country when I entered the United States as an exchange visitor but naturalized in another country during the exchange program and the law of my native country revoked my citizenship by operation of law when I naturalized in another country, may I satisfy the two year home residence requirement by returning to the second country in which I naturalized?

A. No. However, in exceptional circumstances, the Department of State will act as the interested government agency in such circumstances and recommend the waiver. It must be shown that the J-1 attempted to return to the native country of citizenship to live and work for two years and was not permitted to do so.

Q. The Department of State Data Sheet asks the waiver applicant to state the reasons for not wishing to fulfill the two-year foreign residence requirement. How should this question be answered?

A. The question should be answered truthfully. Normally, in the case of a hardship waiver, the response would be that the applicant wishes to remain in the United States because of the extreme and unusual hardship his or her U.S. citizen or lawful permanent resident spouse and/or children would suffer if he/she were to leave, whether the spouse and/or children were to accompany the applicant or remain in the United States.

Q. If a J-1 visa holder subject to the two-year foreign residence requirement returns to the home country for two years to comply with the two-year home residence requirement, under what circumstances can he/she return to live in the United States?

A. Once the home residence requirement is satisfied, the former J-1 visa holder may return to the United States in any status and immigrate through any status (e.g. relatives, employment, investment, the DV lottery, etc.).

Q. Will time spent visiting the United States or other countries during the two-year home residence period count towards fulfilling the home country residence requirement?

A. No. The former J-1 exchange visitor must be physically present in the designated home country for a total of 730 days in order to fulfill the home residence requirement.

Q. If the J-1 dies or is divorced from the J-2 spouse, may the J-2 obtain any type of waiver?

A. If the J-1 dies or is divorced from the J-2, the J-2 spouse and J-2 children may often obtain a waiver through the Department of State acting as an interested government agency and recommending the waiver to USCIS.

Q. Must I obtain H-1B status if my hardship waiver is approved?

A. No, however, in most cases, the H-1B petition is used as a "bridge" until the J-1 is able to obtain a work permit (EAD) through filing a permanent residence application (I-485) either through an American spouse or an employment-based case.

Q. If I am required to work in H-1B status while awaiting an EAD work permit through a pending I-485 permanent residence application, may I work in any H-1B position?

A. There is an annual limit of 65,000 regular H-1B visas and an additional 20,000 H-1B visas per year for persons with U.S. masters degrees, plus H-1B1 visas for citizens of Chile and Singapore. The H-1B cap has been reached during recent years on April 1st, the first day of eligibility to file for employment to commence no earlier and no later than October 1st, It is most advisable to attempt to obtain a cap exempt position. In some cases, the J-1 will own a cap exemption such as where the J-1 has been counted against the H-1B cap within the last six years and has not been outside the United States for a year. It is important to consult with an attorney expert in J waivers regarding the "H-1B visa factor in the immigration planning.

Q. Is it possible to obtain the approval of an O-1 petition while awaiting a decision on a hardship waiver? If the O-1 petition is denied, is it possible to extend the DS-2019 for further training?

A. It is possible to obtain the approval of an O-1 petition while awaiting the approval of a hardship waiver. While you may not change status in the United States from J-1 to O-1, you may obtain an O-1 visa at an American consular post without a waiver and be admitted to the United States in O-1 status. The two-year foreign residence requirement continues to exist.

Eligibility for J-1 status is not affected by the filing or approval of an O-1 petition. If otherwise eligible, the sponsorship may continue without interruption.

Q. May a J-1 visa holder obtain further extensions of J-1 status in the United States if a relative, such as a spouse or parent, files an immigrant visa petition for a J-1 alien?

A. Yes. The filing and approval of an immigrant visa petition is not a bar to extending J-1 status. However, the J-1 alien cannot file an application for permanent residence until the two-year foreign residence requirement is satisfied or waived.

Note that it may be difficult to obtain future J-1 visas from American consular posts once an immigrant visa petition is filed as consular officers may deem the filing of an immigrant petition as evidence of an intention to immigrate and refuse future J1/J2 visas.

Q. What guidelines do the USCIS and the WRD use in adjudicating hardship waivers?

A. The USCIS applies a well-established body of case law in making the initial determination as to whether a claim of exceptional hardship to a qualifying relative has been demonstrated. If USCIS finds "exceptional hardship" they forward the case to the Department of State Waiver Review Division ("WRD"). The WRD has no published guidelines setting forth criteria for adjudication. This lack of known criteria leads to uncertainty regarding whether an application will be approved as there is no precedent on which applicants or their attorneys may safely rely. Anecdotal evidence suggests that both USCIS and the Department of State will accord weight to cases developed using the "Hake Hardship Scale," which is posted on our website, Under the "Hake Hardship Scale," a prospective client's family must rate at least "11 points" of hardship to qualify for a waiver. The categories are as follows:

1. Three categories for persons involved in the cases -
   
   a. U.S. citizen spouse or child? Five points for each U.S. citizen spouse or U.S. citizen  child. On point for each additional U.S. citizen child.
   
   b. LPR spouse or child? Four points for an LPR spouse. Three points for an LPR child. One point for each additional LPR child.
   
   c. Third persons facing very serious hardships, who depend on the family? Zero to three points.
   
   
2. One category for the public interest -
   
   a. Significant public interest factors? Zero to two points.
   
   
3. Six categories for a specific hardship ground -
   
   a. Medical hardships to spouse or child? Zero to six points (per person as appropriate).
   
   b. Psychological hardships to spouse or child? Zero to five points (per person as  appropriate).
   
   c. Career or educational disruptions to spouse or child? Zero to two points.
   
   d. Very serious financial hardships? Zero to one point.
   
   e. Sociocultural hardships upon relocation to the home country? Zero to one point.
   
   f. Significant risk of physical harm due to political or sectarian violence? Zero to three  points.

Q. What factors should be considered in selecting an attorney for representation in the hardship waiver process?

A. Here are some suggestions:

1. It is particularly important to choose an attorney in whom you have confidence and with whom you feel comfortable discussing intimate details of the lives of you and your family. As you will be working closely with the attorney for a long period of time, it is more  important in this context to feel extremely confident and comfortable with your lawyer.
   
   
2. The opinions of others who have used the attorney is a most valuable barometer in  making your choice.
   
   
3. Experience with hardship waivers should be a primary factor in your choice, particularly in this area of law where there are few written rules.

Q. How soon after obtaining a hardship waiver may I apply for my green card?

A. You may apply for a green card immediately upon receiving the hardship waiver if you are otherwise eligible. Of course, you may begin the process of obtaining the approval of a family- based or employment-based immigrant visa petition at any time, even prior to filing the hardship waiver application. In order to avoid employment gaps between the time the J-1 program terminates and USCIS issues a work permit in connection with the filing of a permanent residence application, it will be necessary to change to H-1B status as a bridging status. You may not apply for a green card by filing an I-485 or consular processing until the waiver is approved by the Department of State.