If you are a foreign physician attending a graduate medical program within the United States, you are likely to be visiting this country on a J-1 Exchange Visitor visa. This visa can be very restrictive, because it imposes a foreign residence requirement, which will obligate you to return to your last country of permanent residence for two years before you can return to the U.S. You will not be able to petition to adjust your status to that of a permanent resident while you are living, studying, and working within the U.S. This can create a very harsh and dangerous situation for you, if you face a threat of persecution in your home country for any reason.
One option that is available to you is to apply for a J-1 persecution waiver under § 212(e) of the Immigration and Nationality Act (INA). This waiver was created specifically with the J-1 foreign residence requirement in mind. However, another, more advantageous option for you in many instances is to make the argument for persecution while applying for asylum under INA § 208. Applying for asylum has the same effect as a waiver of the foreign residence requirement, it applies more broadly to more types of persecution, and it can be easier to obtain. If you have questions regarding seeking asylum based on a risk of persecution, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.
What Types of Persecution are Protected Against under the Asylum Process?
Asylum offers broader protections to you than a J-1 waiver. The asylum process can grant you protection based on five grounds: 1) race, 2) religion, 3) political opinion, 4) membership in a particular social group, and 5) nationality. In contrast, a J-1 waiver only offers protection based on the first three grounds: 1) race, 2) religion, and 3) political opinion. Accordingly, it is now much more common to process persecution claims as part of an asylum application than through a J-1 waiver, if any of these grounds apply to you.
Additionally, with a J-1 visa waiver, the State Department could make an unfavorable determination against you based on foreign policy or program grounds, even if you can establish that you will be persecuted. This possibility can be eliminated by instead applying for asylum.
Why is it Preferable to Apply for Asylum?
Asylum may be a more preferable option for you than seeking a J-1 persecution waiver, because there is a lower standard of proof of persecution required for asylum. For J-1 waivers, you will be required to show that if you were to return to your home country, you “would be” subject to persecution. This means that you would need to show a very strong likelihood of future persecution. However in an asylum case, you will only be required to show that you have a genuine, sincere fear of persecution, and that this fear would be shared by a reasonable person under the circumstances that you face. This is an easier standard to meet than proving that you “would be” subject to persecution, as required by the J-1 visa persecution waiver. For asylum, even a 10% chance of persecution could result in a well-founded fear that is sufficient for protection. You would not need to prove that persecution would probably result if you were to return to your home country, only that it is a reasonable possibility. This is another reason why it is preferable to apply for asylum, if you are a foreign physician faced with a risk of persecution in your home country and you wish to avoid the two-year foreign residence requirement of the J-1 visa.
What is “Persecution”?
Persecution is most commonly defined as the infliction of suffering or harm upon a person because they differ in a way regarded as offensive. Persecution is usually physical in nature, but can also be emotional or psychological. Here are the five most common types of persecution an asylee may face:
Serious physical harm;
Coercive medical or psychological treatment;
Unjust prosecution or disproportionate punishment for a criminal offense;
Severe discrimination and economic persecution, and
Severe criminal extortion or robbery.
Who May Apply for Asylum?
Another advantage of the asylum process, is that there are no restrictions as to who may apply. Any alien within the U.S. may apply. Seeking asylum will not jeopardize your legal status. You do not even need to be in legal status to seek asylum. You may even apply if you are already in removal proceedings, and this gives you a reason to seek withholding of removal.
Once you have been granted asylum, you may then later make an adjustment of status to permanent resident. In contrast, J-1 visa holders are not allowed to adjust their status until they fulfill the two-year foreign residence requirement or obtain a waiver.
Does Asylum Offer Protection if I am a Member of a Particular Social Group?
Very likely, yes. Unlike the J-1 persecution waiver, asylum offers protection if you are a member of a particular social group that faces a reasonable likelihood of persecution in your home country. This includes your sexual orientation and could even include your gender if you are a woman.
A “particular social group” that can receive protection under asylum means an identifiable group of people viewed by the home government or community as a threat. It also could be a group sharing a common characteristic so fundamental to your individual identity that you cannot— or should not—be required to change it. A group is more likely to receive protection under asylum if it is viewed as a distinct group within its own society. What may be considered a “particular social group” in one country may not be in a different one.
“Particular social groups” can include minority ethnic groups, social classes (such as educated elites and intelligentsia), family members of political dissidents, occupational groups, homosexuals, child soldiers, police or military members/former members, and, in some countries, even women. Even if you are not a member of a “particular social group,” you could qualify for asylum if your home government or community could mistakenly view you as a member of one.
Asylum based on your gender as a woman has been recognized as a valid reason to seek asylum within the U.S. As a woman, you will be able to seek asylum, if you face a danger of or have been required to participate against your will in ingrained cultural practices such as female genital cutting/mutilation, Islamic dress code requirements, brokered marriages, or entrenched cultural norms of domestic violence.
It can sometimes be hard to predict whether you will fall into a protected social group, so it is often beneficial to base your claim of persecution on additional protected grounds, such as religious or political grounds. This can increase your chances of winning asylum. And, unlike the J-1 visa waiver, which has only three permissible grounds, there are five different grounds of persecution that may apply for an asylum claim. This makes asylum in most instances the more preferable option for you than seeking a J-1 visa waiver.
Contact An Experienced Attorney
If you are a physician (or other professional) who faces a risk of persecution in your home country, and you wish to remain in the U.S., the attorneys at The Law Firm of Shihab & Associates would be happy to speak with you and inform you of your rights and options. Please contact one of us today at any of our four offices for prompt, competent assistance.