J-1 Visa and the Exceptional Hardship Waiver - a Favorable AAO decision
A recent decision by the AAO shows how difficult, but not impossible, it is to satisfy the “exceptional hardship” requirement for obtaining a waiver of the requirement that a J-1 nonimmigrant exchange visitor return to her home country for 2 years before being eligible for an immigrant visa. Exceptional hardship in waiver cases is often very difficult to establish because “exceptional” means just that: exceptional. It’s something far beyond just the usual anxiety, loneliness and financial hardship that would be suffered by any loving family members who might be forced to separated from each other.
In this AAO case, the J-1 visa holder was required by regulation to return to her home county, the Philippines, because under the law, all J-1 exchange visitors who come to U.S. to receive graduate medical education must return home for two years before they can apply for permanent residency, unless certain waivers apply. In this case, the only waiver that was available was the “exceptional hardship” waiver. This required her to show that her departure “would impose exceptional hardship upon the alien’s [U.S. citizen or permanent resident] spouse or child”.
The AAO started its analysis by asking whether exceptional hardship would be suffered by the applicant’s spouse or child if the circumstances forced them to travel abroad with the applicant to the applicant’s home country. Just because they chose to stay in the U.S. while the applicant was required to return home, would not show “exceptional hardship”.
Even then, even if exceptional hardship abroad were shown, the AAO said that it still must be shown that the U.S. citizen or permanent resident spouse or child would suffer “exceptional hardship” here in the U.S. if the applicant simply went home alone.
In this case, the applicant offered evidence of exceptional hardship to the California Service Center of the USCIS but her application was denied. Fortunately, the AAO ruled in her favor in her appeal.
It first held that her U.S. citizen children would suffer exceptional hardship if they went to the Philippines with their mother. One child has bronchial asthma which would have worsened in the Philippine environment, the children lived in the U.S their whole lives, did not speak Tagalog and would be subject to kidnappings as U.S. citizens. The applicant wisely submitted affidavits and much documentary evidence about conditions in the Philippines.
The AAO was also satisfied . . . . .
. . . that the applicant’s children would suffer exceptional hardship if they remained here in the U.S. without her. She offered evidence that her husband would not be able to care for the children and maintain his dental practice at the same time especially the care required for the child with asthma and that all the children were emotionally dependent on her, especially her 5 year old child.
Interestingly, the AAO held that the applicant’s spouse, alone, would not have suffered exceptional hardship either by remaining in the U.S. without the applicant or by traveling with her to the Philippines; it was the children who made the case.
Again, the decision is helpful because it provides a nice framework for others in trying to establish “exceptional hardship”. It shows the high level of favorable facts, backed up by documented evidence, that is required in these type cases.
Even with this favorable decision by the AAO, the applicant must still obtain a favorable recommendation from the Department of State before her waiver can actually be granted. So the AAO remanded the matter to the California Service Center for the Director to request a DOS recommendation.
