Waiver of the J-1 Foreign Residence Requirement Due to Exceptional Hardship or Personal Persecution

Application of Visa Waiver

If you are a foreign physician exchange visitor in the U.S. under the J-1 visa status, you may be able to avoid the two-year foreign residence requirement by filing for a waiver based on your “exceptional hardship” or “risk of personal persecution.” These concepts can include a great many things, such as hardship or persecution to you or your family, or also a strong public interest in your remaining within the United States. Contact us if you are a physician and would like to process a J-1 foreign residence requirement waiver. The immigration lawyers at The Law Firm of Shihab & Associates are experienced and have represented physicians and other foreign medical graduates in a variety of immigration aspects.

What is the Process for Obtaining a J-1 Waiver?

This process can be complex and challenging, requiring the approval of both the U.S. Citizenship and Immigration Service (USCIS), as well as the Department of State (DOS). First, you must file with the USCIS, and they must approve your waiver to be sent on to the DOS. Then, the DOS must separately approve your waiver based on a program and policy review. If your waiver is denied by the USCIS, you may appeal your case to the Administrative Appeals Office (AAO). Unfortunately, if the DOS denies your waiver, then there is no possibility for appeal; however, other options may exist for you at this point.

Here are the procedural steps you must take in the J-1 Waiver process:

  1. You will submit a Data Sheet to the DOS Waiver Review Division, including the required fees, and (2) two self-addressed stamped envelopes (SASEs).

  2. You will receive your Case Number and Instruction Sheet for the waiver from the DOS. You will receive a different Instruction Sheet based on the type of waiver you are applying for.

  3. Next, you will file Form I-612 with the USCIS for your exceptional hardship or personal persecution waiver. If the USCIS grants your I-612, then it will transmit your application to the DOS for further review.

  4. Finally, DOS will review your application, and then forward their recommendation back to USCIS along with a copy to you and your J-1 Sponsor. The DOS Waiver Review Division will make their recommendation based upon the “program, policy, and foreign relations aspects of the case.”

What is the Processing Time for My I-612 Waiver Request?

Most I-612 cases require about two to four months for initial processing by USCIS. In many instances, processing times could be as little as days or a few weeks. As of October, 2015, the Vermont and Texas Service Centers listed the processing times for I-612s at around 4 months.

What Are the Requirements for “Exceptional Hardship” or “Personal Persecution”?

Your waiver may be approved based on “exceptional hardship,” if the two-year foreign residence requirement would impose exceptional hardship on your spouse or child who is a U.S. citizen or permanent resident. This may apply to you, if you have become married or have had a child while living, studying, and working in the U.S.

To qualify for a waiver under a “threat of personal persecution,” you will need to establish that a two-year return to your home country or country of last residence would subject you to a serious personal threat of persecution. This threat must be based on either your race, religion, or political opinion. You will not need to prove that you were subject to past persecution, only that there is a threat of personal persecution in the future.

Are There Any Additional Grounds to Obtain a J-1 Foreign Residence Requirement Waiver?

Yes. You may be able to obtain a waiver based on one of the following: 1) the receipt of a “No Objection” letter from your home country, (however, these are not generally available for resident physicians,) 2) an “Interested Government Agency” waiver, if you are working on a project of interest to a U.S. government agency, or 3) a “Designated State Health Agency Request,” if you have been offered a full-time job with a health care facility serving an area with a shortage of medical professionals.

If you feel you may be eligible for any of these types of waivers, please contact one of our experienced immigration attorneys today at at The Law Firm of Shihab & Associates.

What are Some of the Factors that USCIS Will Consider in Evaluating My I-612 Waiver Request?

The J‑1 foreign residence requirement is not punitive. USCIS should not hold you to the same strict standards governing relief from removal. The legal standard for “exceptional” hardship” is easier to meet than for “extreme” hardship.

USCIS should not enforce any “policy” goals in making your I-612 determination. Congress has given that function to the DOS.

USCIS does recognize exceptional psychological hardships, among other kinds of hardships.

Hardships to non-qualifying relatives or third persons are also to be given weight, so long as there is exceptional hardship to a qualifying relative, (i.e. spouse or child.)

USCIS must also weigh the hardship to the public interest of the United States in evaluating your waiver request. The law requires that USCIS make a finding about this in every J-1 waiver case. “Hardship” and the “public interest” are often reciprocal (or “see-saw”) factors. That means, if there is great strength in one, this will compensate for weakness in the other. Physicians, it is well known, provide great and meaningful service to the public interest of the United States. Often, it can be clearly demonstrated that the denial of your J-1 waiver would result in the disruption of valuable medical services provided to Americans, and may even directly cause or contribute to death or serious complications for your specific American patients.

Detrimental hardship to the U.S. “public interest” can also be shown by your ties to your U.S. community, family members, neighbors, friends, coworkers, patients, workplace, and schools. A J-1 hardship waiver may include as many as 20-50 letters of support from these members of your community demonstrating the tremendous suffering and hardship that would be caused to the U.S. were you to be forced to leave the country for a two-year period.

How to Contact Us

The Law Firm of Shihab & Associates is experienced in representing a wide range of healthcare professionals. We represent healthcare providers and companies as well as healthcare professionals in applying for waivers, visas, and green cards. Our experienced immigration lawyers can assist you in Columbus, Ohio, Cleveland, Ohio, Southfield and Detroit area, Michigan, as well as Washington, DC. Please do not hesitate to call The Law Firm of Shihab & Associates for a consultation today, or use our Contact form to inquire about your visa options.

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