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.
Contents
- Introduction
- What causes deportation proceedings?
- What is Cancellation of Removal? Am I Eligible?
- Continuous Presence
- Aggravated Felonies & Crimes Involving Moral Turpitude
- Public Charge
- Good Moral Character
- Exceptional and Extremely Unusual Hardship
- Other Forms of Relief
Introduction
The Department of Homeland Security defines deportation as “the formal removal of an alien from the United States when the alien has been found removable for violating the immigration laws.”
In other terms, deportation is when an immigrant inside the US is ordered to be removed by an Immigration Judge for violating the law. The words “deportation” and “removal” have the same meaning within this context and are used interchangeably.
Deportation may be ordered on any non-US citizen, meaning even if you are a green card holder, you are not exempt from being removed from the country by the government. Until an immigrant has been through the entire process of naturalization and has officially become a US citizen is he then barred from being removed to his originating country.
An official order of deportation has a greater legal consequence than being sent back to your home country. Depending on the reasoning behind the order of removal, not only is an immigrant sent out from US territory, but the immigrant must also remain outside of the US for a certain period of time before he is allowed to return. This period could range from five years to ten years, or even amount to an indefinite exile from the country.
Therefore, if you, a friend, or a loved one has been issued an order of removal, it is critical to obtain an experienced immigration lawyer right away. Along with the help of an immigration lawyer, it is important for the immigrant to stay informed and have knowledge of all possible avenues for relief.
What Causes Deportation Proceedings?
There are a variety of reasons why an immigrant may be issued an order of deportation and placed into deportation proceedings in immigration court. In general, the law says immigrants are deportable for violating immigration laws; however, violation of US laws may also put an immigrant at risk.
The Immigration Nationality Act §237 lays out all classes of deportable immigrants. In summary, these classes include:
- Overstay of visa/violation of status
- Smuggling
- Marriage Fraud
- Criminal Offenses
- Drug Offenses
- Firearm Offenses
- Documentation Fraud
- Public Charge
- Security and Related Grounds
While most of these grounds for deportation seem like clear violations of the law, even non-violent acts or common mistakes may easily put an immigrant at risk of removal. For instance, registering and/or voting in US elections is a strict liability offense that will place an immigrant in expedited deportation proceedings.
In recent years, it has become a common phenomenon where voter registration tables are set-up in public places, and sometimes, representatives register people of all backgrounds, regardless of their citizenship status. Many immigrants unfamiliar with the law do not realize that completing voter registration forms will lead to negative consequences.
Another commonplace example is failure to notify the government of an address change. While this lack of action seems mundane, and in fact, many people make the mistake of forgetting to report their address change when moving houses or location, not reporting to USCIS of a change of address will make an immigrant subject to deportation.
Reporting an address change can be done through an online submission, a mail-in form, or a call to USCIS. Note: Changing your address with the US Postal Service will not change your address with USCIS.
What is Cancellation of Removal? Am I Eligible?
Under INA §240A, cancellation of removal is a discretionary form of relief, otherwise known as a waiver of deportability. If an immigrant finds himself/herself in removal proceedings, he/she may file for cancellation of removal if certain requirements are met.
The immigrant may file an application for relief before an Immigration Judge, who then determines whether that person is eligible for-
- Waiving certain charges of immigration violations that initiated the deportation order; and
- Canceling the removal order and, if a non-LPR, adjusting to the status of an immigrant lawfully admitted for permanent residence.
Cancellation of removal is a one-time-only form of relief, and an applicant must provide substantial evidence to prove that he or she meets the following requirements in order to be granted relief. Eligibility differs for green card holders and non-green cardholders.
Immigrants of LPR Status must show
- Green Card was obtained lawfully;
- Continuous residence in the US for 7 years after admission AND lawful permanent resident status for at least 5 years before the “stop-time” rule is initiated (see below);
- No conviction of an aggravated felony;
- No offense triggering criminal inadmissibility/crime of moral turpitude; and
- Have not received relief in the past.
Immigrants of non-LPR Status must show
- Continuous and physical presence in the US for at least 10 years (date of admission to date issued Notice to Appear);
- Good moral character (No convictions of criminal inadmissibility or deportability grounds); and
- Exceptional and extremely unusual hardship to LPR relative (see below).
Continuous Presence
Continuous presence in the US is one of the primary factors when determining whether the applicant may be granted cancellation of removal. For non-green card holders, they must have accrued continuous and physical presence in the country for at least 10 years to be eligible for relief.
Think of this factor as time accrued on a stopwatch. Once an immigrant enters the US, his “timer” begins. That time will continue to accrue, and even brief trips abroad i.e. vacation or business trips will not disrupt the timer for continuous presence (so long as a single departure does not exceed 90 days and there was less than 180 days in total departure over the course of 10 years).
According to INA §240(A)(d), an immigrant’s continuous residence or continuous physical presence ends when: (1) the immigrant has committed an offense that renders him inadmissible to or removable from the US; or (2) in the case of applying for cancellation of removal, when the immigrant is issued a Notice to Appear, whichever is earliest. This is known as the “stop-time” rule.
Recent case law has emphasized specificity in Notices to Appear in order for the timer to be stopped. In Pereira v. Sessions (2018), the US Supreme Court ruled that NTAs must specify the date, time, and location that the hearing will take place.
Otherwise, if an immigrant’s NTA states the date of his hearing is “to be determined” or fails to specify on the matter, the stop-time rule has not been triggered until the immigrant is scheduled a specific time and place for his hearing.
For immigrants enlisted in the armed forces and whose induction was in the US, and have served in the armed forces for a minimum of 24 months and was separated under honorable conditions, this continuous presence requirement does not apply.
Aggravated Felonies & Crimes Involving Moral Turpitude
Aggravated felonies are particularly serious crimes, and convictions of aggravated felonies may bring about the most severe punishments in immigration law. In addition to deportability, the conviction of an aggravated felony may result in an immigrant’s: (1) ineligibility for most waivers of removal; (2) permanent inadmissibility to the US after removal; and (3) enhanced prison sentence for illegal reentry. Conviction of an aggravated felony will bar immigrants of any status from the relief of cancellation of removal.
Remember, a crime may not be considered an aggravated felony under state or federal criminal law, but it may rise to the level of an aggravated felony for immigration purposes. INA §101(a)(43)(a)-(u) states an expansive list of crimes that fall under aggravated felonies.
Aggravated Felonies include, but are not limited to, the following
- Murder
- Rape
- Drug trafficking
- Money laundering
- Crimes of violence + at least 1 year prison sentence
- Theft/Burglary + at least 1 year prison sentence
- Child pornography
- Prostitution
- Fraud/Deceit
- Alien smuggling
Crimes Involving Moral Turpitude (“CIMT”) often overlap with aggravated felonies and may rise to the level of barring one from various forms of relief. CIMT is a term of arm used within immigration law without a precise definition. CIMT often refers to crimes that are morally reprehensible or otherwise characterized as crimes involving conduct that shocks the conscience.
CIMTs include, but are not limited to, offenses such as rape, murder, robbery, and fraud. When determining whether an offense falls within the meaning of CIMT, a general rule of thumb is identifying whether there was intent or evil motive behind the act or conduct.
For purposes of cancellation of removal, for non-green card holders, conviction of 1 CIMT with a potential sentence of 1 year or longer—even if the offense was not within 5 years of an admission to the US—he is barred from applying for cancellation of removal.
However, for green card holders, only if he has committed and been convicted of a CIMT prior to reaching his 7-year continuous residence requirement, then he is barred from applying for cancellation of removal.
Public Charge
For purposes of cancellation of removal, it is unlikely that public charge status will weigh heavily into your application for removal relief. Public charge refers to someone who is or is likely to become primarily dependent on public benefits or government subsistence.
Cancellation of removal is a form of discretionary relief where public charge inadmissibility grounds do not apply, therefore it is highly unlikely that an applicant who receives public benefits will have an adverse factor to his cancellation application.
Discuss with your immigration attorney if you have any concerns on whether your application might be affected based on public charge circumstances.
Good Moral Character
INA §101(f) defines good moral character (“GMC”) as “character which measures up to the standards of average citizens of the community in which the applicant resides.” Applicants for cancellation of removal must prove he/she has established GMC for 10 years counting backwards from the date of the final decision.
***Note: this 10-year period differs from that of continuous presence as the time accrued for continuous presence STOPS once the immigrant is served the Notice to Appear..
Although determining a person’s GMC is a matter of discretion for the Immigration Judge, INA §101(f) lays out statutory bars to establishing GMC, which include:
- Habitually drunkard;
- One whose income is derived principally from illegal gambling activities;
- Conviction of 2+ gambling offenses;
- False testimony/Fraud;
- Conviction of an offense resulting in an aggregate prison sentence of 180+ days
- Conviction of an aggravated felony;
- One who has participated in genocide, persecution, or acts of torture.
Along with considering case law, the seriousness of the offense, and the negative factors of GMC, an Immigration Judge may also use a balancing test and weigh any positive factors of GMC, such as reformation of character, rehabilitation, voluntary community service, and absence of significant undesirable factors.
Exceptional and Extremely Unusual Hardship
This factor is arguably the most difficult requirement to prove for non-LPR cancellation of removal. Cases involving exceptional and extremely unusual hardship are tough to win and are analyzed by a stringent standard. We dissect this factor under a 2-prong approach: (1) who does the hardship apply to; and (2) what qualifies as exceptional and extremely unusual hardship?
Who does the hardship apply to?
To prove this requirement, it’s important to understand that the hardship of deportation must not be to you, but to a qualifying relative. A qualifying relative can be one of the following:
- A US citizen or LPR parent or step-parent
- A US citizen or LPR spouse from a bona fide marriage
- A US citizen or LPR child who is under 21 years of age and unmarried
If you are applying for non-LPR cancellation of removal and you do not have a qualifying relative, then you are not eligible for this form of relief. However, if you do have a hardship to a non-qualifying relative, discuss with your immigration lawyer on how you can frame that hardship directly or indirectly to a qualifying relative. Creating a strategy on how you frame the hardship may be critical to how you win your case.
What is exceptional and extremely unusual hardship?
When determining hardship for purposes of non-LPR cancellation of removal, in addition to applying case law, the court will analyze several factors of your case. The BIA has held that the standard of showing hardship must be substantially beyond the ordinary standard, meaning mere economic hardship will not constitute a sufficient showing.
Common factors considered include the qualifying relative’s: age, health, length of US residence, lack of financial support resulting from removal, and circumstances in the home country, including language, the standard of living, and availability of education and medication.
For example, for hardship cases, immigration courts often refer to Matter of Recinas (BIA 2002). In Recinas, the BIA granted cancellation of removal to Recinas who met the burden of showing exceptional and extremely unusual hardship to her six children based on the heavy burden to provide sole financial/familial support for her children if deported, the lack of any family in her native country, her children’s unfamiliarity with the Spanish language, and the unavailability of an alternative means of immigrating to this country.
Other Forms of Relief
Cancellation of removal cases involves high standards and is very hard to win. If you are doubtful of your case, speak with your lawyer about other options you may have. Consider if you may qualify for the following:
- Cancellation of Removal for Victims Battered or Subject to Extreme Cruelty by LPR Spouse/Parent: Must meet these requirements for eligibility:
- You have been battered/subject to extreme cruelty in the US by your US citizen or LPR spouse or parent, OR you are the parent of a child of a US citizen or LPR and the child has been battered or subjected to extreme cruelty in the US by a such citizen or LPR parent;
- Prior to service of the Notice to Appear, you have maintained a continuous physical presence in the US for 3+ years and a person of GMC during such period;
- You are not inadmissible/deportable, no conviction of an aggravated felony; and
- Removal would result in extreme hardship to you or your child who is the child of the US citizen or LPR, or you are a child whose removal would result in extreme hardship to you or your parent.
- Asylum/Convention Against Torture: If you have been persecuted or fear future persecution in your country removal based on your race, religion, nationality, political opinion, membership in a particular social group, or fear persecution by the government, speak with your attorney about possible avenues of relief against torture.
- Voluntary Departure: If you are in removal proceedings and/or in the event that your application for cancellation of removal has been denied, you may request a voluntary departure from the Immigration Judge. By doing so, voluntary departure allows you to leave the US within a certain period of time without the enforcement of immigration officials. In addition, the voluntary departure does not result in a period of inadmissibility to the US based on a deportation order. Keep in mind that conviction of certain crimes may bar you from being granted voluntary departure.
An individual who seeks to file an I-751 petition must present that his/her case is very unique. Petitions based on exceptional hardship are very difficult to obtain approval; therefore, you will want to seek counsel from an experienced immigration attorney in order to evaluate whether filing under this ground is your best option, and if not, find your best solution.
According to the INA §216(c)(4), the Secretary of Homeland Security may remove the conditional basis of the permanent resident status of an immigrant if the immigrant demonstrates that extreme hardship would result if he/she is removed.
The statute is vague in its definition of what circumstances constitute “extreme hardship.” The general rule that follows is that the hardship the applicant faces must be significantly greater than the hardship experienced by other immigrants facing removal.
This means that every applicant’s petition is different and unique in itself, and undergoes examination on a case-by-case basis by the USCIS. Furthermore, the USCIS is granted the discretion whether to approve or deny the petitions under its strict scrutiny.
If you are considering to file a petition under this ground, you must remember that, in determining extreme hardship, the USCIS will consider circumstances occurring only during the period that you were admitted for permanent residence on a conditional basis.
Meaning, any evidence you supply to support your claim of hardship must be during your two-year conditional residency within the US. The USCIS may consider evidence outside this scope as supplemental, but cannot be the evidentiary basis on approving your petition. The following is a conclusive list of factors that may contribute to your case of exceptional hardship:
- Age, Health;
- Length of US residency;
- Family ties in US, custody of US-born children;
- Current political & economic conditions of returning country;
- You and derivatives’ assimilation to returning country (language, culture, family ties);
- Lack of necessary medical & educational resources;
- Inability to find employment with your skill-set in returning country;
- US-citizen family members are dependent on your income;
- Likelihood of facing persecution or discrimination upon removal.
National Interest Waiver (“NIW”) is very desirable as it waives the requirement of a US job offer and labor certification, cutting off much of the visa application processing time.
However, NIWs are not just granted to any applicant. When applying under an NIW for an employment-based visa, you must produce at least 3 of the criteria under the exceptional ability standard and prove that it is in the national interest that you work permanently in the US.
The Immigration Nationality Act does not give a specific definition of what constitutes “national interest,” so we look to precedent or case law of how the Court interprets the term. However, the standard does not stay constant as it seems to evolve over time. The following cases outline the evolution of the NIW standard and how it has affected applicants.
Mississippi Phosphate (1992)
The Court offered straightforward guidelines and held that the following criteria is considered when determining national interest.
- Applicant improves:
- The US economy;
- US workers’ wages/working conditions;
- Education for children and under-qualified workers;
- Healthcare;
- Environment;
- Maintaining productive use of natural resources
- Applicant provides more affordable housing for youth, elderly, or poor; or
- A request for the applicant from an interested US agency
New York State Dept. of Transportation (1998)
Six years following the ruling in Mississippi Phosphate, the Administrative Appeals Office modified stricter standards for granting NIWs; however, the reasoning was unclear as to why. At the time, the AAO emphasized the significance of requiring the labor certification route in relation to the issue of US worker shortages.
Furthermore, the AAO opined that legislative history does not suggest that NIWs were intended simply as a means for self-petitioning foreigners to avoid the inconvenience of the labor certification process, and held that an applicant must demonstrate why the labor certification would be detrimental to the national interest.
The ruling in this case placed an insurmountable burden on aspiring national interest applicants. Moreover, it generated greater problems in the application processing system where many INS service centers returned NIW applications without a glance and issued RFEs asking petitioners for lengthy lists of additional evidence to be submitted.
Overall, the ruling made the process more burdensome for both sides, and ultimately, NIWs were hardly administered and applications were never processed in a timely manner.
Matter of Kazarian (2010)
Years passed, and the NIW standard was still set under strict scrutiny. Finally, Kazarian brought suit against the USCIS in the Ninth Circuit Court of Appeals, claiming that the Service erred in its consideration of the criteria in his application.
Ultimately, the Court found that the Service did err in its adjudication by imposing regulatory standards outside of the scope of the law. Here, the Court held that neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR §204.5. Overall, this relaxed the NYSDOT standard that imposed demanding requirements for applicants.
Matter of Dhanasar (2016)
Lastly, we reach the status quo on the evolving requirements for NIWs. In order to form more consistent and efficient adjudication of NIW applications, the AAO established a framework that the USCIS takes when determining whether an applicant may be granted an NIW. Now, the USCIS uses the following three-prong approach:
- Whether the foreign national’s proposed endeavor has both substantial merit and national importance;
- That he or she is well positioned to advance the proposed endeavor; and
- That, on balance, it would be beneficial to the US to waive the job offer and labor certification requirements.
Client: Student entered U.S. on F-1 Visa, Married U.S. Citizen, Obtained Conditional Green Card (CR-1)
Client’s Country of Origin: Pakistan
Case Type: I-751 Petition to Remove Conditions on Residence; Good Faith Waiver, Exceptional Hardship
Our client retained Attorney Richard Herman of Herman Legal Group for guidance and counsel on his extremely complex situation. Our client, a citizen of Pakistan, entered the U.S. on a F-1 visa pursuing his medical career.
Later, he had met a US-citizen woman who he thought would be his lifelong partner. While arranged marriage is customary in the Islamic faith, at the time, the couple shared the same cultural, religious, and life values, which made our client excited for the compatibility.
After they united in marriage, our client filed for a marriage green card and was approved for his 2-year conditional green card. Soon later, their bond began to dissolve, and relations between the families grew contentious.
In their shared Urdu culture, traditional wedding ceremonial events take place following the marriage to consummate their unity. However, our client could not afford the time or money for the grand occasions to take place during his studies.
The grand wedding ceremony kept getting delayed, and throughout the marital arrangement, the father-in-law persistently attempted to extort large sums of money from our client. Despite the family’s refusal and inability to present finances, the in-law would call numerous times and try to manipulate them into giving up money for the wedding ceremony.
Our client told his father-in-law that he believes that marriage is based on love, care, and understanding—not on money.
Due to his commitment to his residency program, our client and his wife lived separately until its completion. He believed he would one day make a lot of money to support his wife and their future family.
As time passed, he noticed communication with his wife started to dwindle, and time spent together on his visits became slim. Their relationship grew quarrelsome; the couple became more distant, differences continued to arise, and ultimately, the wife showed signs of emotional abuse. Our client suffered from daily criticism. If not subject to blame, he would be ignored for long periods.
His wife’s family used his green card as their leverage—they would steal it without returning it unless our client gave them the money they sought. Finally, the wife’s family gave an ultimatum and demanded a divorce or otherwise sign a contractual agreement to pay the large sum of money. Our client desperately wanted to save his marriage. Still, because he was unable to afford their requests, his wife’s family filed multiple false criminal charges in an attempt to hurt his character and make him subject to removal.
Our client wanted was a successful marriage. Feeling defeat and no longer able to endure the blackmail, our client filed for divorce and came to us for help. He explained to us his failed marriage and sought our assistance to file his I-751 Petition to Remove Conditions on his 2-year residence to stay in the States. He told us how much time and money he had spent for his residency program, and if he were unable to complete it, all of his hard work would go down the drain.
He wouldn’t be able to provide for a future family, and if removed, chances of him securing employment within his industry are slim to none. Also, he feared relocating to Pakistan due to multiple reports of assaults and deadly attacks on Pakistani doctors.
At first glance, Attorney Herman did not believe our client had a chance of approval. While the couple entered into the marriage in good faith, they never had the chance to cohabitate. However, Attorney Herman offered his expertise to our client’s last-ditch effort to save his future. Attorney Herman knew that detailed documentation would be crucial for our client’s best chances of approval.
When preparing the petition, Attorney Herman assembled a vast range of documents to evidence a bona fide marriage, extreme cruelty during the relationship, and that our client is subject to extreme hardship if returned to Pakistan.
After submitting several documentation and attending a lengthy, emotional interview, our client’s petition got approved. Attorney Herman provided his expert knowledge of the law in this complicated case to receive an unlikely favorable outcome. Our client’s case was successful not only in the sense that the result was not expected but also because our client was able to continue his journey in the medical profession within the US.