J-1 Waiver Based on Hardship
In order to qualify for a favorable recommendation from the U.S. Citizenship & Immigration Services (USCIS) based on exceptional hardship to your U.S. spouse or child, you must demonstrate that:
- Your departure from the U.S. will impose exceptional hardship on a U.S. citizen or permanent resident spouse or child; and
- Hardship will occur if spouse/child will accompany you abroad
and if spouse/child will remain in the U.S. while you fulfill the two-year requirement.
To meet this legal standard, your application must include a detailed description of your personal background, as well as evidence confirming how your U.S. relative will be affected if you have to fulfill the two-year requirement. The following factors are considered in reviewing a hardship waiver application:
- Physical, emotional, or economic hardship to U.S. relative;
- Loss of employment, educational, or health opportunities for U.S. relative;
- Poor country conditions or political instability in your home country;
- The loss of benefits to the U.S. caused by your departure or your spouse’s departure;
- Hardship to non-qualifying relatives (e.g., U.S. spouse’s family).
The hardship waiver application is initially filed with USCIS, which is the most critical step to obtaining a waiver of the two-year home residence requirement. If USCIS makes a finding of hardship, it will issue a positive waiver recommendation and transfer your file to the U.S. Department of State (DOS). The DOS is then likely to also issue a positive waiver recommendation and transfer your file back to the USCIS for a final decision. Please note that, if you have received U.S. government funding such as a Fulbright or USAID scholarship, the DOS may issue a negative recommendation in light of this funding.