CASE: Adjustment of Status / J-1 Hardship Waiver
NATIONALITY: Kenyan
LOCATION: Maryland
Our client came from Kenya in February 1993 on a valid J-1 visa. He got his J-1 status as a research scholar and received government funding for his research. His J-1 status made him subject to the two-year foreign residency requirement. Once his J-1 program was completed, he remained in the United States. Later, he married his current U.S. citizen wife and became a father of two U.S. citizen children. Our client would like to file his adjustment of status application along with his wife’s I-130 petition; 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). As mentioned above, our client also received government funding for his research programs which made his case tougher 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 wife 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 December 17, 2015, 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 wife’s medical conditions. On December 18, 2015, 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 wife would experience exceptional hardship if our client needs to go back to Kenya for two years.
However, on May 11, 2016, the USCIS issued a Request for Evidence (RFE) for our client’s I-612 case. The USCIS asked our client to submit more evidence to demonstrate the extreme hardship to his U.S. citizen wife if he has to go back to Kenya for 2 years. On August 2, 2016, our office filed the Response to RFE to USCIS along with additional documents to support the claim of financial and medical hardship including income and expenses, plus more recent medical documents of his U.S. citizen wife evidencing the hardship. Eventually, the USCIS approved his I-612 waiver on October 26, 2016.
Once his J-1 waiver was approved, our client retained our office again for his green card application. Our firm prepared and filed I-130 petition and I-485 adjustment of status application on December 6, 2016. Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through the conference calls. On July 25, 2017, our client was interviewed at the Baltimore, MD USCIS office.
However, on August 4, 2017, the USCIS issued the Request for Evidence for our client after the interview. The USCIS requested our client to submit the certified court disposition of his previous criminal record. Our client submitted the record to the USCIS on October 19, 2017.
Eventually, on November 2, 2017, his green card application was approved.