Bloggings on Immigration Law
Jan 24, 2012
Our offices specializes in complex J1 waivers, the following Blog post will describe a recent success case we feel will benefit our readers. This article is presented by Attorney Ekaterina Powell from our office.
A lot of J-1 Exchange Visitors coming to the United States are subject to a so-called “two-year rule” which means that J-1 holders are required to return to their home countries for two years after completion of the exchange program. This rule creates a lot of obstacles for foreigners who get married to U.S. citizens but are unable to adjust status because of the two-year rule.
So, what can these couples do in a situation like this?
There are four types of waivers of the two-year home residency requirement that are provided for in the Immigration and Nationality Act section 212(e):
1) No Objection waivers that are based on a no objection statement from the exchange visitor’s home country
2) Interested Government Agency (IGA) waivers
3) Exceptional Hardship waivers that are based on hardships to U.S. citizen or Lawful Permanent Resident (LPR) qualifying relatives (spouse or child(ren))
4) Persecution waivers that are based on exchange visitor’s risk of persecution on account of race, religion, or political opinion.
Often times, the easiest way to obtain a waiver is through a no objection statement received from an exchange visitor’s foreign government. However, in some situations, such statement is difficult or impossible to obtain if the J-1 program was financed, in whole or in part, by the foreign government.
For an exceptional hardship waiver, one needs to prove that an exchange visitor’s compliance with the two-year rule will cause exceptional hardship to his/her qualifying relatives. This article will describe an example of a successful J-1 waiver case based on exceptional hardship to a U.S. citizen spouse and child handled by our office.
Example of a_J-1 Exceptional Hardship Waiver case
In September, 2009, Jen came to the U.S. from China as a visiting scholar under J-1 visa. Jen was awarded a scholarship by the Chinese government to participate in a J-1 program and conduct research at a university in California. Jen became subject to a two-year home residency requirement because the Chinese government partially funded the J-1 program.
Jen and Chao met in 2009. They got married in 2010, and on January 29, 2011, their son Li was born. At the time of I-612 submission, which is the form used for exceptional hardship waivers, Li was less than 1 year old.
It has been held that hardship should be determined in the aggregate. See Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994). In the waiver application, we explained how Chao and Li would experience exceptional hardship in all possible travel scenarios if Jen complied with the two-year requirement, including serious financial hardship, Chao’s career disruption, health-related hardship associated with dangerous ecological environment in China, sociocultural hardship associated with inability to freely practice religion in China, and other considerations. All these factors, considered together, take this case outside of the realm of normal hardships. The only possible way to minimize the hardships to the qualifying relatives is for Jen to stay in the U.S.
Chao is a naturalized citizen of the United States. He was born in China and relocated to the United States in 1999. For the last several years, Chao has pursued career in the legal field. Chao is now a successful California-licensed patent attorney at a big and prestigious law firm.
Economic recession has caused many lawyers to lose their lucrative jobs and search for other careers. In this highly competitive legal job market, any career interruptions have a very negative impact on seeking employment.
With the waiver application, we submitted numerous newspaper and magazine articles describing the impact of the ongoing economic recession on the legal market. In addition, we provided affidavits from Chao’s co-workers, partners at his law firm, other friends in the legal field attesting to the fact that if Chao had a two-year career interruption, his position would be filled and it would be next to impossible for him to find comparable employment.
Chao has invested a lot of time, effort, and expenses into his legal education and obtaining a license to practice law in California. Legal practice in China is not an option for Chao as he would have to first graduate from a Chinese law school and obtain a license to practice law there, which is an impossible task to complete in two years. This means that Chao’s legal career would be disrupted for at least two years until he returns to the United States. With the waiver application, we submitted arguments supported by documentation showing that Chao’s career would be disrupted in all travel scenarios if he went to China or if he stayed in the U.S. with or without Li.
In addition to career disruption, Chao would suffer financial hardships if Jen complied with the two-year rule.
First of all, if Chao and Li had to go to China with Jen, Chao would lose his job, the family would lose their home due to inability to make mortgage payments, and Chao would get into even more debt because he would not be able to keep up with student loan payments. Pursuit of a law degree has left Chao with thousands of dollars in unpaid student loans, which he would be unable to pay off if he lost his well-paid job.
As a second travel alternative, Chao and Li could stay in the U.S. while Jen is in China. However, Chao and Li would also experience substantial financial hardship in this travel scenario. Without Jen and with Chao’s full-time job and very busy work schedule that requires him to work 60-80 hours per week, Chao will be unable to take care of Li by himself. In absence of any help from family members, Chao would have to pay for daycare, which runs more than $1,000 a month. With thousands of dollars in student loans and mortgage, Chao spends most of his monthly salary paying off his debts. Considering Chao’s tight financial situation at this time, it would be impossible for him to pay for daycare, the student loans, and the mortgage for the family’s home.
If Jen takes Li with her to China and Chao stays in the U.S., the family will also experience exceptional financial hardship. If Jen acts in compliance with the two-year foreign residence requirement, she would have to teach courses at a university in China on a full-time basis. Jen will not be able to take care of Li by herself. Jen’s parents both work full-time jobs and live thousands of miles away from her home town.
It is also not feasible for Chao and Jen to go to China and leave Li in the U.S. Li is only 9 months old and there is no one who could take care of him in absence of his parents.
In addition to serious financial hardships, it would not only affect Chao and Jen to be separated from their baby Li, but it would also impact Li’s upbringing and his physical and mental health. Since Li is a minor, his hardships are intertwined with the hardships of his parents.
If Jen leaves Li with Chao in the U.S., Li will not receive his mother’s love and attention for two years. Chao will not be able to care for the baby while maintaining a full-time job and will not be able to afford the daycare because most of Chao’s salary goes towards mortgage payments and student loan payments. If Chao sells his house and obtains the money for daycare, Li will be brought up by a nanny and will spend his next two years away from his parents.
If, on the other hand, Jen takes Li with her, Li will have no one to care for him. With the full-time teaching position that Jen is required to perform, Jen will need to place baby Li in daycare as she has no family or friends who could assist in childcare.
In addition, moving to China will pose serious health risks to the baby. With the waiver application, we submitted numerous articles substantiating health risks for newly born children in China, including severe allergic reactions, etc.
Waiver of the Two-Year Residence Requirement is in the Public Interest
In addition to proving exceptional hardship to a qualifying relative, one must also show that waiver of the two-year residence requirement is in the public interest. In our case, public interest would better be served if Jen did not have to comply with the J-1 requirement.
Chao is actively involved in community services. He is a volunteer for a number of nonprofit organizations that provide pro bono legal services to indigent members of the community. Chao contributes hundreds of hours in volunteer legal services to ensure that everyone, including victims of human and civil rights violations, receives legal representation. With the waiver application, we provided documentation establishing that if Chao went to China for two years or if he had to stay in the U.S. without Jen, he would not be able to continue his volunteer services, which would be a great detriment for the community.
The public interest would be better served if Jen stayed in the U.S. with her husband and child and continued her research at the university in California.
The hardships that Chao and Li will experience are unusual and significant, and, thus, go beyond the regular hardships associated with separation from family members.
In cases where compliance with the J-1 requirement leads to separation from both, a U.S. citizen spouse and child, USCIS shall assert serious adverse reasons for denying the waiver. However, even in cases with a citizen-spouse and citizen-child, USCIS does not automatically approve such waiver applications and makes its determination on a case-by-case basis considering the circumstances of each particular case.
The court in Ken Tong Chen v. Attorney General, 546 F. Supp. 1060, 1065 (D.D.C. 1982) stated that “where the applicant alleges that denial of a waiver will result in separation from both a citizen-spouse and a citizen-child, a finding of “no exceptional hardship” should not be affirmed unless the reasons for this finding are made clear.”
The court points out that the INS [now USCIS] acknowledged that “in cases where both spouse and child (children) are U.S. citizens or lawfully resident aliens, exceptional hardship will generally exist due to the difficulty experienced by a family with children in parting from their relatives, friends and familiar surroundings, and attempting to readjust to life in a foreign country where they are not familiar with the language, mores or culture,” citing Matter of Nassiri, 12 I.&N. Dec. 756, 757 (1968).
The public interest is served, consistent with the Congressional policy, only if there are serious adverse reasons for denial of waivers in cases involving both a citizen-spouse and a citizen-child. Since in our case both the citizen-spouse, Chao, and the citizen-child, Li, will experience significant hardships, the waiver of the two-year home residence requirement is warranted.
Two months after submission of I-612 Waiver Application, the above-referenced case was approved by USCIS and Department of State. Chao and Jen do not longer have the fear of a lengthy separation and are now in the process of filing their marriage petition with USCIS.
The case described in this article is an example of a successful J-1 waiver case based on exceptional hardship to a citizen-spouse and citizen-child. However, please be aware that the circumstances of each case are different. Even if the facts of your case are similar to the ones described in this article, it does not mean that USCIS will automatically approve the application. Therefore, you need to consult an attorney for a careful analysis of your case if you consider a waiver application.
Jacob Sabochnick is the managing attorney of The Law Offices of Jacob J. Sapochnick and is an active member of the American Immigration Lawyers Association; he has been invited to lecture on immigration law topics at various conferences in the United States and abroad. He has also published several articles on issues related to the field. Mr. Sapochnick, Esq. provides immigration law support to US Immigration clients worldwide. This includes assisting individuals and companies applying for Visas to work and live in the United States, Canada and Mexico. Mr. Sapochnick graduated from Manchester Metropolitan University, School of Law with a Bachelor of Law (Hons.) Degree. He also attended California Western School of Law in San Diego, CA and obtained his LL.M (Masters) degree in international and comparative law. Thereafter, he pursued his career, focusing on US business immigration law. Mr. Sapochnick assists foreign workers to live and work in the United States by understanding their situation, goals and objectives he obtains the appropriate work and investment visas. His clients range from multi-national companies to mid-sized and small companies, as well as individuals undergoing the U.S. immigration process.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.