J-1 Visa Waivers: Claim of Persecution

Most people who are in the United States in J-1 status are required to return to their home country for two years before seeking further residence in the United States. Nevertheless, there are five situations in which this two-year home residency requirement can be waived. One of these situations is when you have a legitimate fear of persecution based on your race, religion, or political beliefs if you return to your home country.

The “persecution waiver” can be granted even if it is the spouse or children of the J-1 visa holder (who hold J-2 visas) who fear persecution if they return home. The J-1 persecution waiver is somewhat more difficult to obtain than an asylum claim is, in part because the qualifying reasons for persecution are more narrowly defined.

Source of Persecution

You may fear persecution from your government if you return home. Nevertheless, the persecution you fear needn’t come from the government. You may qualify for a J-1 waiver if you expect to face danger from rebel groups, street gangs, etc, as long as the reason for the persecution is your race, religion, or political beliefs.

Procedure

The procedure for filing a J-1 waiver request on the basis of fear of persecution is similar to the process for filing a J-1 waiver request for other reasons. The main differences are (i) you must explain and document your fear of persecution to prove that your fear is reasonable, and (ii) you must file Form I-612.

Step 1: Prepare Your General J-1 Waiver Request

• Navigate to the State Department’s J Visa Waiver web page and register a case number. Write it down and keep it, because; you will need it later.
• Complete Form DS-3035. Fill it out online first, and then print it out, because the printout will include a barcode that encodes the information you provided. Don’t print out a blank form and fill it out by hand.
• Collect the supporting documents required by the form such as copies of your passport pages, Form I-94, Form DSP-2019 or Form IAP-66 (the document that established your eligibility for J-1 status in the first place), a copy of your birth certificate, official English translations of foreign language documents, etc.

Step 2: Prepare the Portions of Your Application That Deal Directly With Your Persecution Claim

Include the following documents based on need, availability, and the specific facts surrounding your persecution claim.

• A statement in which you describe the reasons for your fear of persecution and the conditions that currently prevail in your home country. This statement could turn out to be the centerpiece of your application, and it must be persuasive. This is where a skilled immigration lawyer could really help you.
• Any evidence that you have already suffered persecution in your home country — photographs, sworn affidavits from friends, family and yourself, media reports, medical evidence, etc.
• Evidence of your religious affiliation, if you are claiming persecution based on your religion. This might include affidavits from a religious leader, documents establishing your membership and activity in a particular religious organization, etc.
• Evidence of your membership or affiliation with political groups that might suffer persecution in your home country; publications in which you advocated for a particular political viewpoint, etc.
• A government-issued document establishing your ethnicity or nationality, if available.
• Police report or arrest records if you have been arrested, charged, or convicted of a crime in your home country based on activities related to your race, religion, or political views that would have been legal if they had taken place in the United States.

Step 3: Complete and File Form I-612 With the USCIS

Form I-612 is required for J-1 waiver requests based on fear or persecution or on exceptional hardship, but not for the other three bases for which a J-1 waiver may be requested).

• You can file Form I-612 first, send it to the USCIS, wait for the USCIS to send you an approval notice, and then file your general J-1 waiver application (Form DS-3035 and supporting documents) with the US State Department Waiver Review Division. To obtain a waiver, the State Department must approve Form DS-3035 and the USCIS must approve Form I-612.
• Alternatively, you can file Form I-612 with the USCIS and file your general J-1 waiver application with the State Department Waiver Review Division simultaneously (but in different envelopes, since they will go to two different addresses).

Remember — if you choose to file simultaneously, processing may be faster, but the State Department Waiver Review Division will not refund your processing fee even if the USCIS rejects your Form I-612 application.

Step 4: Periodically Check the Status of Your Application

You can check the status of your application by navigating to the appropriate State Department web page and scrolling down. This function will tell you if your application is missing anything (the processing fee, certain documents, etc.).

Step 5: Playing the Waiting Game

The State Department will forward your application to the USCIS together with a favorable or unfavorable recommendation. The USCIS will make the final decision and notify you by mail. The review process usually takes three or four months.

How to Prove Your Claim of Persecution in an Affirmative Asylum Application

To win your US asylum claim, you are going to have to prove that you were persecuted in your home country, or that you have a credible fear of persecution if you return. Furthermore, you must have been selected for persecution based on your race, religion, nationality, political views, or membership in a social group. Like just about any other legal term, the word “persecution” carries a meaning that is not exactly coincident with its dictionary meaning.

The Legal Definition of “Persecution”

The legal definition of persecution under US immigration law is rather vague, with one exception (see the quoted text below). Nevertheless, the following circumstances could support a claim of persecution:

• Physical violence or threats of violence, including but not limited to torture;
• Forced labor;
• Slavery;
• Unlawful detention;
• Psychological abuse;
• Economic harm (deprivation of food or shelter, for example)
• You are “forced to abort a pregnancy or to undergo involuntary sterilization, or . . . persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program” This definition applies mostly to citizens of China.
• Other forms of abuse.

The persecution need not be inflicted by a government — being terrorized by vigilantes or drug gangs, for example, can qualify as persecution.

Your Personal Affidavit

To maximize your chances of success, you should submit a separate personal statement with your asylum application (Form I-589) that details the persecution you suffered or your credible fear that you will suffer if you return home. It is submitted in the form of an affidavit (a sworn statement), which means that you could be criminally prosecuted for intentionally including an important false statement.

Your statement should tell your entire story, and it needs to be compelling enough to convince the immigration offer reviewing your case to grant you asylum status. Since your statement needs to be credible as well as persuasive, you should add as many details as you can without falsifying anything. If you write it in a foreign language, it should be accompanied by a certified translation.

For many people, the most difficult part of preparing the personal statement is establishing a connection between the persecution and your membership in a particular demographic, religious or social group. An experienced immigration lawyer can help you draft your personal statement.

Your Testimony

You should know every detail of your personal statement by heart by the time your interview date arrives. Test yourself on the details if necessary, because any discrepancies between your testimony at the interview and the content of your personal statement could hurt your chances.

You are entitled to bring your attorney with you, and you may also bring an interpreter (in fact, this is required if you cannot conduct the interview in English). Remember — anything you reveal to US immigration officials, or to your attorney, will be kept strictly confidential.

Interview Tips

Following are some important tips on how to prepare for and conduct your asylum interview:

• Don’t be late! It makes a terrible impression.
• Prepare yourself physically and mentally. Be sure to get plenty of sleep the night before.
• Rehearse telling your story until you know it by heart. When you tell your story to the immigration officer, however, don’t make it sound like you are reading from a script.
• Tell the whole story — don’t leave out anything of any consequence.
• Be honest! Don’t make up any details you have forgotten, because it could come back to haunt you later.
• Practice good body language. Don’t be afraid to make eye contact with the officer, because avoiding eye contact might convince the officer that you are not being truthful.
• Don’t fake tears, but don’t be afraid to cry at the interview if you feel like it. It won’t be held against you.
• Correct any mistakes that may appear on your application — your interview could be your last chance to do so, and discrepancies between your interview and your application don’t help your chances.
• Above all, retain an experienced immigration attorney to help you prepare and to accompany you to the interview.

Supporting Evidence

US asylum law requires you to at least attempt to gather evidence of the persecution that you fear. Do your best to document your claim extensively. The following types of evidence are commonly used to corroborate asylum claims:

• Doctor’s reports. You might consider visiting a doctor or mental health professional in the US if you exhibit signs of abuse.
• Newspaper clippings and other mass media accounts.
• Human rights reports issued by reputable organizations that describe conditions in your home country.
• Affidavits of witnesses to the persecution of you or of the group of which you are a member.
• Photographs and videos.
• Correspondence.
• Proof of your membership in a particular social group, if you are claiming asylum on this basis

An experienced immigration lawyer can provide you with critical assistance in proving your claim of persecution at all stages of the process.