By: Allen E. Kaye

1. Q. How long does it take to process a hardship waiver?
A. It is currently taking the State Department an estimated 3 - 4 months to process hardship waivers, but processing times vary greatly. For current processing times, go to http://travel.state.gov/visa/temp/info/info_1 295. html.

2. Q. What are the hardship waiver processing procedures?
A. 1. Send a check in the amount of $215.00, payable to the Department of State, along with the current version of the Data Sheet (DS 3035) to the U.S. Department of State, Waiver Review Division, P.O. Box 952137, St. Louis, MO 63195-2137. Once your fee is processed, you will receive a letter in the nature of a receipt with your name and waiver review case number, along with a standard form letter explaining the process. NOTE: This fee should be paid at the earliest possible time to avoid delays in filing a waiver application. By paying the fee, you are not obligated to file a J-1 waiver nor will such affect your J-1 status.

The Waiver Review Division (WRD) of the Department of State (DOS) will not review your case without the case number. It generally takes about three to four weeks to obtain the DOS case number. Make certain your Department of State waiver review case number is written or stamped on every single page of the filing. Your application may be rejected for failure to do so.

2. The application is filed on Form 1-612 and must be filed in duplicate, with the required filing fee of $265.00, with the USCIS Regional Service Center having jurisdiction over the applicant’s place of residence. On a discretionary basis, District USCIS Offices can accept jurisdiction. The form can be downloaded from the USCIS home page at: www.uscis.gov. The form is deceivingly simple. It should not be filed without consulting with one or two expert attorneys in the field of hardship waivers.

Prepare the most complete waiver application you can detailing “extreme”, “exceptional” and “unusual” hardships in the alternative. That is, you must prove the extreme hardship both if the exchange visitor returns to the home country for two years without his qualifying relatives if the qualifying relatives return home with the exchange visitor. A “qualifying relative” is an American citizen or lawful permanent resident spouse or child.

The standard reason for rejection is that the exchange visitor has failed to prove that the hardship attendant upon a family separation is no greater than that which would normally be experienced by involuntary separation, such as loneliness and anxiety.

3. The USCIS determines whether exceptional hardship to the qualifying relative(s) has been shown. If the requisite hardship has been shown, the case will be forwarded to the WRD of the Department of State with a favorable recommendation. The WRD balances the program and policy considerations of the exchange program in requiring the exchange visitor to return home for two years against the demonstrated exceptional hardship. Most experts in the field agree that the Department of State reviews the hardship claim do novo and often substitutes its judgment for the USCIS determination. This tendency has noticeably increased recently, meaning that in some instances the Department of State re-adjudicates the hardship finding previously made by USCIS.

4. If USCIS does not find “exceptional hardship”, the application is denied and not forwarded to the State Department. There is a right to appeal the denial by USCIS to the Administrative Appeals Office of USCIS, if the USCIS Service Center denies the initial application. Of course, an appeal can add many months on to the processing time, even if successful.

5. Once the WRD receives the application, it will take about 3 - 4 months to process.

Note that if medical or mental hardship is claimed as the basis for waiver, the WRD will send the application to the State Department Medical Office for their opinion as to whether the medical or mental condition can be treated in the home country.

Thus, it is important for the applicant to thoroughly document the unavailability of treatment in the home country in such cases.

The Medical Office review adds to the processing time.

6. If the WRD concurs with the USCIS waiver recommendation it will return a simple one page form, known as an “1-613” to USCIS with one of two boxes checked (granted or denied). The lives of countless Americans are impacted by which box is checked.

7. If the WRD does not recommend a grant of the waiver to USCIS, the application must be denied by the USCIS. There are no formal motions to reopen or reconsider.

8. If the case is ultimately denied by the WRD, the recourse is to file a new waiver application with USCIS. It is not a good idea to refile the application with the same evidence. New, material evidence should be submitted.

3. Q. May a J-1 physician obtain a work permit while awaiting the outcome of a hardship
waiver?
A. No, work permits are not available to applicants for hardship waivers, even if married to an American citizen. However, another non-immigrant status, such as 0-1, should be explored.

4. Q. Does marriage to an American citizen eliminate the two-year home residence requirement?
A. No. A J-1 physician who marries an American citizen is still subject to the two-year home residence requirement, and must either obtain a waiver or fulfill the requirement before he or she is eligible to obtain permanent resident status. If an interested government agency waiver is obtained ,
J-1 physician must still work in H-lB status for three years before applying for permanent residence.

5. Q. May I file an application for a hardship waiver based on the fact that I am pregnant with a child who will be an American citizen before the child is born?
A. If the only eligibility for a hardship waiver rests on the anticipated birth of an American child, you must wait until the child is born to become eligible to file the waiver. However, you may prepare all documentation and file the waiver as soon as the child is born and you have a certificate of birth.

6. Q. The law governing waivers confers eligibility to file a hardship waiver if the J-l has a lawful permanent resident or American citizen spouse and/or child. Do the USCIS and the WRD of the Department of State give the same weight to having a permanent resident relative as it does to having an American citizen relative?
A. While the statute governing hardship waivers, §212(e) of the INA, accords the respective statuses equal weight; in practice, it appears that LPR relatives are given less weight than United States citizen relatives. However, this is not a rigid rule and certainly the facts underlying the case can result in the hardship to an LPR relative being given the same weight as hardship to an American citizen relative.

7. Q. If I am married to an American citizen or lawful permanent resident, when should the immediate relative immigrant visa petition (1-130) be filed?
A. Generally, it should be filed and approved before the hardship waiver is filed. However, there are many other considerations which factor into this decision and before doing so, you should consult with an expert attorney. For example, if the J-1 is going to need to obtain a J-1 visa from a consular post after the relative immigrant visa petition is filed, a consular officer could legitimately deny the J-1 a new visa on the ground that the filing of the visa petition is evidence of an intent to immigrate, and
thus the applicant is ineligible for a J-I visa under §214(b) of the INA as an intending immigrant.

8. Q. What are the advantages and disadvantages of pursuing a hardship waiver
instead of an IGA waiver?
A. The advantages of pursuing a hardship waiver are that, if approved, the physician may immediately apply for permanent residence (if there is a qualifying family relationship or an employer willing to sponsor the physician) rather than spending three years in H-I B status before filing for permanent residence. In addition, the physician is not limited to working in medically underserved areas, but may accept employment anywhere.

The main disadvantage is that the outcome and processing time of a hardship waiver
are more difficult to predict than with an IGA waiver.

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9. Q. How do I contact the WRD?
A. The WRD is under the jurisdiction of the State Department Bureau of Consular Affairs. The website is: http://travel.state.gov. The mailing address is:

Department of State
Waiver Review Division
Visa Office
SA-1, Room L603
2401 E Street, N.W.
Washington, D.C. 20522-0106

10. Q. What are my chances of success?
A. The prosecution of a hardship waiver application is complex, and both the USCIS and the WRD apply strict and rather high standards in determining whether the departure of an exchange alien (J-I) would cause extreme hardship to a United States citizen or permanent resident spouse and/or child.

Note that exceptional hardship must be proven in the alternative; that is, it must be demonstrated that the American citizen or permanent resident spouse or child(ren) will suffer exceptional hardship if the spouse and/or child(ren) remain in the United States while the J-1 physician returns home for two years and will also suffer exceptional hardship if the spouse and/or child(ren) go home with the exchange visitor for two years. You must cover both situations in detail. Proving exceptional hardship under one alternative is only half the case.

Factors which the USCIS and the WRD consider in their determinations include:

1. Medical hardships including severe and life-threatening illnesses and conditions, or illnesses and conditions requiring regular care and/or medications not available in the physician’s home country, such as asthma, cancer, Downs Syndrome, or diabetes. Note that the WRD will send waiver applications claiming medical hardship to the Department of State Medical Office for review as to whether the conditions in the home country constitute medical hardship.

2. Psychological hardships including the exacerbation of an existing mental illness or disorder or the precipitation of the onset of a disorder, such as post traumatic stress disorder, or severe depression, if the foreign residence requirement is enforced. Note that the WRD may request updated evidence of psychiatric treatment if the hardship claim is based on a mental disorder or illness and the qualifying relative is in therapy when the application is filed. Treating mental health professionals are often reluctant to provide comprehensive mental health forensic status reports as they believe that, if the patient reviews the report, it will compromise therapy. Thus, it is a good idea to obtain a report from an independent forensic psychologist or psychiatrist, in addition to or in lieu of a comprehensive report from a treating therapist.

3. Country conditions. Country conditions are an extremely important factor in a hardship waiver case. It would be unseemly for the United States government to effectively force American children to live in countries it has labeled state sponsors of terrorism or states infested with terrorists or undergoing anti-American upheavals. For example, J-1 physicians from Iran, Iraq, Libya, Syria, Sudan, Pakistan and war- ravaged countries would have a strong case in demonstrating extreme hardship to U.S. citizen children. In the wake of the war in Lebanon, hardship waivers for Lebanese with United States citizen relatives should be approved. However, the situation in Lebanon will be judged when the WRD of the Department of State reviews the case.

4. September 11th Cases. If the home country is on the State 6 list of countries sponsoring terrorism compiled by President Bush or if the home country has become dangerous for American citizens because of local reaction to America’s war on terror, a strong case for hardship to qualifying American relatives can be made. It would be difficult to justify sending Americans or the J-1 relative to a country targeted by the United States in the war on terrorism.

5. Social, Cultural and Educational hardships which would result from the physician’s spouse and/or child relocating to a foreign country whose language they do not speak and whose culture is alien to them (e.g., an American Christian feminist, who does not speak Arabic, relocating to Saudi Arabia). If the qualifying relative is a child with a diagnosed learning disability, the lack of special education in the home country is accorded great weight.

6. Economic hardship to the physician’s spouse and/or child if the foreign residence requirement is enforced is given less weight and should be considered in connection with other hardship factors.

7. Career interruption or destruction to the physician’s spouse (e.g., an American citizen solo law-practitioner relocating with J-1 spouse).

8. Political and religious hardship, including fear of violence and oppression based on political views, race, ethnicity, gender, or sexual preference.

The strongest cases tend to involve educational, mental, and medical hardships. Taking the above factors into account, you should consult with more than one competent immigration attorney experienced in representation in hardship waiver cases to determine your chances of obtaining a hardship waiver. The totality of the circumstances test should be used.

11. Q. Can you provide examples of the types of cases which will have a high probability of success and cases which have a low probability of success?
A. It is very important to note that every case is different, just as the people filing the cases are different. The best example I can give you of how important it is to obtain multiple expert attorney opinions in this type of waiver, is a case our office handled a number of years ago. A French physician was married to an American citizen and had an infant American citizen child and felt there was compelling exceptional hardship. They had seen five immigration attorneys who told them their case did not pass the “laugh test”.

They appeared to be rational people and we interviewed them. Within a few moments, we earned that both the American husband and the J-1 physician wife were descendants of Holocaust survivors and their parents had been in concentration camps during World War II. Common sense suggested that descendants of Holocaust survivors are particularly susceptible and vulnerable to developing a number of mental disorders when faced with a governmentally enforced separation. They advised me they had not been able to articulate this and no prior lawyer had even asked. The attorneys seemed to stop their analysis upon earning the home country was France. The waiver was approved.

Other Successful Hardship Fact Patterns

• Venezuelan physician with American child.



• Pakistani physician with American child.



• Physicians with American children who are from designated “state sponsors of terrorism” countries.

Tips on Fact Patterns which do not appear to carry much weight with WRD

• Biological clocks ticking. The argument that it is necessary for the family to stay together in the United States so that a woman can have a child does not carry much weight.
  
  
• Single parent scenario. Arguing that the spouse will, be left alone in America for two years and will have to both work and care for a child does not usually make the cut.
  
  
• Having an American citizen child who is not sick. That alone, is generally insufficient unless the country conditions in the home country would endanger a child’s health or life. Applicants from countries engaged in civil wars and countries such as Iran, Iraq, and Libya have a possibility of success if both parents are required to leave for two years. If one parent is an American citizen, the argument will be more difficult.

12. Q. In which countries may the two-year foreign residence requirement be satisfied?
A. The two-year foreign residence requirement may only be satisfied in the country of nationality or last permanent residence as indicated on Form lAP- 66 or DS-2019. If the J-1 is a citizen of one country and a permanent resident of a second country, th home residence requirement must be satisfied in the country of last permanent residence, which must also be the country which issued the assurances for the J-1 sponsorship. These countries must be listed on the IAP-66 or DS-2019. If there is an error, WRD takes the position that the exchange program sponsor (e.g., ECFMG) must correct the error.

13. Q. The Department of State Data Sheet asks the waiver applicant to state the reasons
for not wishing to fulfill the two-year foreign residence requirement. How should this
question be answered?
A. The question should be answered truthfully. Normally, the response would be, in the case of a hardship waiver, that the applicant wishes to remain in the United States because of the extreme and unusual hardship his or her U.S. citizen or lawful permanent resident spouse and/or children would suffer if he/she were to leave, whether the spouse and/or children were to accompany the applicant or remain in the United States.

14. Q. If a J-1 visa holder subject to the two-year foreign residence requirement returns to the home country for two years to comply with the two-year home residence requirement, under what circumstances can he/she return to live in the United States?
A. Once the home residence requirement is satisfied, the former J-I visa holder may return to the United States in any status and immigrate through any status (e.g. relatives, employment, investment, the DV lottery, etc.).

It is advisable to obtain employment commitments and sponsorship commitments for
H-IB visas and permanent residence before departing from the United States, if possible,
so that you are relatively assured you can return to employment in the United States once
the two-year commitment is satisfied.

15. Q. Will time spent visiting the United States or other countries during the two-year home residence period count towards fulfilling the home country residence requirement?
A. No. The former J-I exchange visitor must be physically present in the designated home country for a total of 730 days in order to fulfill the home residence requirement.

16. Q. Is it possible to obtain the approval of an 0-1 petition while awaiting a decision on a
hardship waiver? If the 0-1 petition is denied, is it possible to extend the IAP-66 for a fellowship?
A. It is possible to obtain the approval of an 0-I petition while awaiting the approval of a hardship waiver. While you may not change status in the United States from J-I to 0-I, you may obtain an 0-I visa at an American consular post without a waiver and be admitted to the United States in 0-I status. However, the two-year foreign residence requirement does not “disappear” by obtaining 0-I status; it continues to exist.

Eligibility for J-I status is not affected by the filing or approval of an 0-I petition. If otherwise
eligible, the sponsorship may continue without interruption.

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17. Q. Is it permissible to change Status from J-1 to H-lB in the United States after a hardship waiver is granted?
A. No. You must depart the United States and apply for an H-lB visa at an American consular post. Applying at a post in Canada or Mexico for the visa should be the first option, if available.

18. Q. May a J-1 visa holder obtain further extensions of J-1 status in the United States if a relative, such as a spouse or parent, files an immigrant visa petition for a J-1 alien?
A. Yes. The filing and approval of an immigrant visa petition is not a bar to extending J-l status. However, the J-l alien cannot file an application for permanent residence until the two-year foreign residence requirement, if applicable, is satisfied.

Note however, that it may be difficult to obtain future J-1 visas from American consular
posts once a petition is filed as consular officers may deem the filing an immigrant petition
as evidence of an intention to immigrate and refuse future J1/J2 visas under Section 214(b)
of the INA (failure to overcome presumption of intending immigrant.)

19. Q. What guidelines do the USCIS and the WRD use in adjudicating hardship waivers?
A. The USCIS applies a well-established body of case law in making the initial determina- tion as to whether a claim of exceptional hardship to a qualifying relative has been demonstrated. If USCIS finds “exceptional hardship” they forward the case to the Department of State Waiver Review Division (“WRD”) for concurrence. The WRD has no published guidelines setting forth criteria for adjudication. This lack of known criteria leads to uncertainty regarding whether an application will be approved as there is no precedent on which applicants or their attorneys may safely rely. Anecdotal evidence suggests that both USCIS and the Department of State will accord weight to cases developed using the “Hake Hardship Scale,” which is posted on Bruce Hake's web site at www.hake.com/pc/scale.htm. Under the “Hake Hardship Scale,” a prospective client’s family must rate at least “11 points” of hardship to qualify for a waiver. The system claims to accurately assess all possible hardship combinations by assigning a weighted score in just 10 categories. The categories are as follows:

• 1. Three categories for persons involved in the cases —



• a. U.S. citizen spouse or child? Five points for each U.S. citizen spouse or U.S.
  citizen child. One point for each additional U.S. citizen child.
• b. LPR spouse or child? Four points for an LPR spouse. Three points for an LPR
  child. One point for each additional LPR child.
• c. Third persons facing very serious hardships, who depend on the family? Zero to five points.

• 2. One category for the public interest —



• a. Significant public interest factors? Zero to two points.
  
  
• 3. And just six categories for specific hardship ground —



• a. Medical hardships to spouse or child? Zero to six points (per person as appropriate).
• b. Psychological hardships to spouse or child? Zero to five points (per person as appropriate).
• c. Career or educational disruptions to spouse or child? Zero to two points.
• d. Very serious financial hardships? Zero to one point.
• e. Sociocultural hardships upon relocation to the home country? Zero to one point.
• f. Significant risk of physical harm due to political or sectarian violence? Zero to three points.

20. Q. What factors should be considered in selecting an attorney for representation in the hardship waiver process?
A. Here are some suggestions:

1. It is particularly important to choose an attorney in whom you have confidence and with whom you feel comfortable discussing intimate details of the lives of you and your family. As you will be working closely with the attorney for a long period of time, it is more important in this context to feel extremely confident and comfortable with your lawyer.

2. The opinions of others who have used the attorney is a most valuable barometer in making your choice

3. Experience with hardship waivers should be a primary factor in your choice, particularly in this area of law where there are few written rules.

21. Q. How soon after obtaining a hardship waiver may I apply for my green card?
A. You may apply for a green card immediately upon receiving the hardship waiver if you are otherwise eligible. Of course, you may begin the process of obtaining the approval of a family-based or employment-based immigrant visa petition at any time, even prior to filing the hardship waiver application. Often, in order to avoid employment gaps between the time the J-1 program terminates and USCIS issues a work permit in connection with the filing of a permanent residence application, it will be necessary to change to H-I B status in the interim as a bridging status until USCIS issues the employment authorization document. You may not apply for a green card by filing an I- 485 or consular processing until the waiver is approved by the Department of State. However, you need not wait for the final USCIS approval of the waiver to file the application for permanent residence (Form 1-485).

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