People whose presence in the US is based on a J-1 visa are subject to a requirement that other visa holders are not subject to — the two-year home residency requirement. The purpose of this requirement is for J-1 visa holders to use their newfound skills to assist people in their home countries. Five major waivers of the home residence requirement are available, however, one of which is the “exceptional hardship” waiver.
What is the Exceptional Hardship Waiver?
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.
How to Apply for an Exceptional Hardship Waiver
To obtain an exceptional hardship waiver, you must obtain approval from both the USCIS and the US State Department’s Waiver Review Division. Once you get approval, you will not automatically be granted the right to stay in the US–you will simply not be barred by the two-year home residency requirement. You must still apply and be approved for another visa status — an H-1B visa, for example, or a permanent residence visa. It works like this:
Step 1: Fill out the J-1 visa waiver application on the State Department’s J Visa Waiver Online web page. You cannot file this application online — you must print it out. The printout will include a unique barcode that you will need for your application to be accepted.
Step 2: Mail your application to the State Department Waiver Review Division: Your application fee must include your completed application form, a printout of the bar code page, a check or money order for $120 (as of 2020– updates are available here), and other documents that you may need to support your application based on your individual circumstances.
Step 3: Complete USCIS Form I-612, print it out, add any necessary or useful documentation, and include a check or money order for $930 (as of 2020). If the USCIS likes your application, it will contact the Waiver Review Division with a recommendation in your favor. Ultimately, however, the final decision rests with the Waiver Review Division.
Wait for the USCIS to send you an I-797 approval notice.
Qualifying for Another Immigration Status
This much cannot be emphasized enough — if you cannot obtain an extension of your J-1 visa, you will need to qualify for and obtain another legal immigration status to remain in the US, even if your J-1 waiver is approved. That means you must receive approval of both your J-1 waiver and your new immigration status to remain in the US without interruption. Otherwise, you might have to leave the US and apply for a new US visa from abroad.
Some immigration statuses, however, will allow you to remain in the US while your application is pending. An immigration lawyer can help you maximize your chances of an uninterrupted stay in the US. It is important that you apply early — the time it takes for approval of a J-1 exceptional hardship waiver varies greatly, and it can take a year or more to process in some cases.
Make Your Applications as Persuasive as Possible
The USCIS and the State Department Waiver Review Division will consider both your written application and any relevant supporting documentation yu provide. You will be given an opportunity to explain why you should receive an exceptional hardship waiver, and the assistance of an experienced immigration lawyer just might turn out to be the difference between success and failure.