CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Extreme Hardship
NATIONALITY: Filipina
LOCATION: Hobbs, NM
Our client came from the Philippines on a J-1 visa to work as a teacher. She was subject to the two-year foreign residency requirement. Our client would like to file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.
Unlike our other J-1 clients, our client could not pursue her waiver under the No Objection Statement or Interest Government Agency (IGA). She was married in the Philippines and even though she got her divorce in the United States, the Philippines do not recognize divorces, only annulments, and annulments take five years in the Philippines. An option though to get a waiver without needing a No Objection Statement is through a showing of Exceptional Hardship. That’s what our client pursued as her husband had several 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 she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On April 11, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State. Thereafter, our office prepared an affidavit for our client, an extensive brief in support of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for her U.S. citizen husband’s medical conditions. On April 12, 2019, our office filed the I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to the Philippines for two years.
On November 14, 2019, the USCIS issued a Request for Evidence (RFE) and requested our client to submit more hardship evidence. Our office prepared the response and filed an extensive Response to RFE to the USCIS on February 3, 2020.
Eventually, the USCIS approved her I-612 waiver on August 31, 2020. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her husband’s I-130 petition in the United States.