Pittsburgh Exceptional Hardship Waiver Lawyers

The two year home residency requirement may be waived if the exchange visitor can demonstrate that departing the United States would result in exceptional hardship to a U.S. citizen or lawful permanent resident spouse or child. Hardship may result either because the relative(s) would require the visitor's help in the United States or because the relative(s) would be forced to accompany the J Visa holder to his or her home country, where conditions may be starkly different.

Hardship determinations are based on the "totality of the circumstances," so different factors may influence the decision. U.S. Citizenship and Immigration Services (USCIS) officers reviewing these waiver applications consider many factors in determining the existence of exceptional hardship. Some of these factors are:

  • Relatives' medical conditions which would be insufficiently treated in the home country
  • Physical or mental conditions that would worsen
  • Likely discrimination
  • War
  • Natural disaster
  • Serious financial consequences to the family; dependent care; severing of family relationships
  • Interruption of spouse's established career

In all cases, the hardship must be to the citizen or permanent resident spouse or child, not the applicant.

Some hardships are considered not exceptional and therefore insufficient for a waiver. These include:

  • Mere separation
  • Better job opportunities in the United States
  • Forced military service in the home country
  • Birth of a child

Although fear of persecution may not be considered an exceptional hardship, it may be a separate ground for a waiver. (Click "Persecution Waivers" for a more detailed explanation.)

In order to file for a waiver due to exceptional hardship, the following steps must be taken. First, the J Visa holder must receive a case number from the U.S. State Department. Next, the hardship waiver applications, which include the required forms and supporting documents, are made directly to USCIS. USCIS makes the initial determination that sufficient hardship has been demonstrated to justify review by the U.S. State Department. If USCIS determines that the evidence is insufficient, it must grant the applicant an additional 120 days to submit more evidence before it can make a final denial.

The U.S. State Department may still recommend against the waiver once it receives the application from USCIS. If it does so, USCIS will deny the application, and such a denial may only be overturned within the U.S. State Department. If the U.S. State Department recommends granting the waiver, USCIS will carry out the final approval.

Unlike the no objection waiver, the exceptional hardship waiver may be used by anyone subject to the home residency requirement, regardless of the source of the requirement.