CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Extreme Hardship

NATIONALITY:  Nepalese

LOCATION: South Dakota

Our Nepalese client came to the U.S. as a J-1 scholar with a Fulbright scholarship in 2014.  His J-1 status made him subject to the two-year foreign resident requirement. Our client would like to file his adjustment of status application along with his I-140 NIW application; however, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under No Objection Statement or Interest Government Agency (IGA). Our client also received government funding (Fulbright scholarship) for his research programs which made his case pretty much impossible for the No Objection Statement or IGA waiver route. Our client, though, would like to pursue his J-1 waiver based on exceptional hardship standard. In fact, our client’s U.S. citizen son is experiencing exceptional medical hardships.

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.”

Some of the factors in analyzing extreme hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

After he retained our firm, we prepared and filed a waiver request through an exceptional hardship basis. On October 3, 2017, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared affidavit of our client, extensive brief in support for our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen son’s medical conditions.  On October 20, 2017, our office filed I-612 application to the USCIS and asked for them to issue and recommends this waiver based on the fact that our client’s son would experience exceptional hardship if our client needs to go back to Nepal for two years.

However, the USCIS issued Request for Evidence on July 25, 2018 and requested more hardship evidence from our client. Our office filed Response to RFE on August 29, 2018.

Eventually, the USCIS approved his I-612 waiver on March 13, 2019. Now that our client’s two-year foreign residency requirement is waived, he can file his adjustment of status application along with his NIW I-140 self-petition in the United States.  

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