Appeal in J-1 Hardship Waiver Case
Posted Dec 15, 2000

As many MurthyBulletin readers are aware, certain persons in J1 visa status are required to return to the country of last residence for two years before they may obtain either H1B or permanent resident status. This two-year home country requirement under Section 212(e) of the Immigration and Nationality Act applies to some J1 holders but not to others. If there is government funding (from either the U.S. or foreign government); if the J1 is in a medical residency program; or if the country of residence has designated the person's type of expertise (on a document called the skills list) as being in shortage in the home country and therefore needed in that country, then generally the home country requirement applies. There are also some J-1 programs under which the requirement would apply even when the above factors are not present.

As an alternative to complying with the home country requirement, sometimes people seek a waiver of the 212(e) requirement. There are various basis for the waiver: (a) a showing that the home country does not object to the person remaining in the U.S., (b) recommendation by a U.S. government agency, (c) exceptional hardship to U.S. family members, or (d) fear of persecution in the home country. Please note that persons in graduate, medical training programs are not eligible to obtain the no-objection waiver listed as type (a) above.

Government agency, hardship, and persecution waivers are usually extremely difficult to obtain. We were therefore encouraged when we read in the legal literature about an appeal on a denial of a hardship waiver case. This was not a case represented by the Law Office of Sheela Murthy, but one that was publicly reported.

The applicant was a Colombian who had come to the U.S. for graduate medical training. Her field was on the skills list. She later married a U.S. citizen who had two children from a prior relationship, and the couple also had a baby together. All three children were U.S. citizens. After her waiver was denied, she appealed the case to the INS Administrative Appeals Office (AAO). In an opinion dated October 3, 2000, the AAO set forth the following requirements. The applicant must show that if she had to return to Colombia there would be exceptional hardship on her spouse and children. Such a hardship argument must be made both (a) assuming the whole family would go to Colombia together and (b) assuming just the applicant would return to Colombia and the rest of the family would remain here. The pain of separation is not in itself a basis for a waiver, as it is an element of every case. 

In this case, the U.S. citizen spouse did not speak Spanish and had serious heart problems; thus he would have had difficulty obtaining employment in Colombia. The possibility of the separation having an adverse effect on his health, as well as the danger posed by the unstable political situation in Colombia to U.S. citizens, were also cited as factors. The AAO indicated that a case involving both spouse and child/ren was more compelling than one involving a spouse alone; a greater number of relatives weighs in the applicant's favor. The AAO found that the applicant had met her burden of proving exceptional hardship, whether the family were to go together or whether she were to return alone to Colombia. 

Though the appeal was successful, the case was not over yet. The AAO sent the case back for the local INS to request a recommendation from the U.S. Department of State Waiver Review Division. Such a recommendation is required for approval of the waiver. If the State Department (DOS) recommends the waiver, the AAO directed that it be approved. If the DOS recommends against the waiver, then the application will be denied, and there will be no further administrative appeal.

Revised May 15, 2002