The exceptional hardship waiver allows you to remain in the US, or return to the US on an immigrant or nonimmigrant visa, without completing the two-year home residence requirement. Unfortunately, the degree of hardship that might be visited upon you is considered irrelevant — the only hardship that matters is a hardship to your US citizen or permanent resident spouse, child or, in some cases, other relatives.
What is “Exceptional” Hardship?
The two-year home residency requirement naturally results in hardship to the relatives of many people who are subject to it. They will be faced with the choice between remaining in the US without their spouse or parent or relocating to the J-1 visa holder’s home country. Although this might be experienced as hardship, it is not considered “exceptional hardship without more.
Remember that the final decision is discretionary and, to a large extent, subjective. Furthermore, there is no formal way to appeal the rejection of a J-1 waiver application, although it is possible to reapply for a waiver on another basis, such as fear of persecution in your home country. The following are some examples of circumstances that might constitute exceptional hardship.
- Your wages will be reduced, or you may be unable to find employment, in your home country, thereby drastically reducing your family’s income if they depend on you for support.
- The expense of maintaining two households (if your family will not return with you) will cause exceptional financial hardship.
- Your spouse is a stranger to your home country’s culture, and strict local restrictions (religious restrictions, for example), might constitute additional hardship.
- You are the primary caretaker of a seriously ill or infirm parent, and you will not be around to provide this care if you return to your home country.
- Your spouse is ill and underinsured in the US, and cannot receive adequate medical treatment in your home country
- A combination of various “ordinary” hardships might be seen as adding up to “exceptional” hardship.