Chapter 8 Hardship and Persecution Waivers for the Home-Residency Requirement

• Jurisdiction: United States

To waive the home-residency requirement under Immigration and Nationality Act (INA) §212(e), most physicians seek interested government agency (IGA) waivers, and others choose to pursue one of two other waiver options mentioned in the statute: U.S. Citizenship and Immigration Services (USCIS) may waive the requirement if it determines that enforcing the home-residency requirement would “impose exceptional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of his nationality, race, religion, or political opinion.”

What are the steps in a J-1 hardship or persecution waiver?

The process of seeking a waiver for hardship and persecution differs from the process involved in seeking IGA cases.

Form DS-3035, J-1 Visa Waiver Recom-menda-tion Ap-plication, can be found at http://1.usa.gov/1WPGN3P.

All J-1 waiver cases start with the online filing of Form DS-3035, J-1 Visa Waiver Recommendation Application, and hardship waiver applicants would select either “hardship” or “persecution” as the basis of the waiver application and pay the $215 application fee by mail afterward.

In IGA cases, the applicant next files an application with the IGA, and the IGA forwards its recommendation to the Department of State. The Department issues a recommendation for the waiver to USCIS and USCIS issues an approval using Form I-612, Application for Waiver of the Foreign Residence Requirement.

In hardship and persecution cases, J-1 waiver applicants file a Form I-612 application with the USCIS service center handling such cases (currently the California Service Center). USCIS makes a determination of whether it believes the hardship or persecution case has been proven and then forwards the file to the Department of State Waiver Review Division for a recommendation.

If the Waiver Review Division recommends the waiver, USCIS routinely issues a final approval of the waiver application. If the Waiver Review Division declines to recommend a waiver, USCIS denies the waiver application.

What does “exceptional hardship” mean?

The INA does not define “exceptional hardship”; however, in general, the hardship must be unusual and significant. USCIS’s Adjudicator’s Field Manual instructs examiners to look to a series of cases over the last 50 years to make the determination. But, in general, the Manual instructs adjudicators to consider the following principles:

1. The claimed hardship must be considered for the qualifying spouse and for qualifying children, not for the J-1.

2. An exceptional hardship must be considered under the circumstances of both relocation abroad and separation on the qualifying spouse or children.

3. A variety of common factors may be considered in the aggregate to render a determination of...