Success on J-1 Hardship Waiver Case
Posted Nov 18, 2005
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The MurthyBulletin has previously reported on waivers of the two-year home residency requirement that applies to some people who hold or have held J-1 status. See our June 6, 2003 article, Overview, J-1 Visa Waivers (Part 3), available on MurthyDotCom. One of the avenues toward a potential waiver is known as the hardship waiver. This waiver is based on a showing of exceptional hardship to the foreign national's U.S. citizen or lawful permanent resident spouse and/or child/ren. These cases are not easy, but, as illustrated below, they are possible in the right circumstances. They require some creative effort in the attorney's ability to identify the issues and properly articulate and document the hardships that might not be immediately evident.
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Our example comes from a particularly memorable client who hired The Law Office of Sheela Murthy only after an emergency consultation, made en route to the airport for the start of his two-year home residency requirement. We virtually plucked this client from the airplane, pursued his hardship waiver case and, thereafter, saw the case through to approval of permanent resident status.
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Background of Case
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This case began with our client, a physician on a J-1 visa, with a naturalized U.S. citizen spouse and one young child. The U.S. citizen spouse, also a physician, is in the process of completing a highly demanding, prestigious fellowship program. We argued that enforcing the two-year home residency requirement would create hardships on the U.S. citizen spouse and child, including interruption and compromise of the spouse's career, separation of a parent and a young child, serious economic consequences, and risk of physical harm due to current country conditions. Since hardship waivers often involve a number of intertwined hardships, it is difficult to determine which hardship/s was found to be sufficiently extreme. It is necessary to demonstrate that the hardship/s exists under any possible scenario regarding the relative remaining in the U.S. or accompanying the foreign national abroad.
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Career Interruption / Compromise
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The U.S. citizen spouse's fellowship was highly demanding. We documented work requirements of a minimum 90-hour week, plus short-notice, on-call requirements for the U.S. citizen spouse. We argued that employment of this type would not work with single parenthood. In addition to the demands of the program, it was not workable for economic reasons and for the welfare of the child. We argued that there would be a severe compromise to a very promising career for the spouse and the family, if the demands of this program could not be met.
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Financial Hardships
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Our firm also demonstrated that a fellowship salary was not sufficient to cover the expenses of housing, childcare, and day-to-day life expenses. The required long and unpredictable hours would necessitate a live-in nanny. Additionally, the on-call duties limited housing choices to high-cost options in an expensive city. The situation, therefore, was not financially viable. The foreign national spouse would not be able to earn enough money in the home country to contribute to the family's support. Additionally, The Law Office of Sheela Murthy demonstrated that, as residents of one of the highest cost-of-living areas in the U.S., the couple had not been able to accumulate significant savings upon which to rely. Moreover, as immigrants, they did not have family living in the U.S. to help them through this difficult time.
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Majority of Time in Daycare
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Our firm also argued that, with one parent abroad and the other in a fellowship, the U.S. citizen child would suffer. While many working parents in the U.S. use daycare, this child would have had virtually no contact with either parent. Moreover, as stated, there were no extended family members in the U.S. to fill this void. We obtained the opinion of a psychologist as to the negative impact of such a parental separation at a young age. While separation alone is not hardship, we argued that the situation went beyond normal separation hardship levels.
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Risk of Physical Harm
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We demonstrated that the child could not accompany the foreign national parent abroad due to the place where they would have to live. The particular location was undergoing a period of unrest and there was danger to U.S. citizens. The city at issue was among those declared the world's worst for foreign residents. Because the parents were from different countries, with different physical attributes, the child also would not blend in with the rest of the population, and thus would be subject to increased risk.
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Conclusion
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We at The Law Office of Sheela Murthy are very pleased with the result in this case, as is our client, for whom it seemed miraculous. The foreign national physician ultimately was able to obtain permanent residence via a family petition filed by the spouse. We believe this case demonstrates that an important part of hardship cases involves delving into the details of people's lives. When children are involved, it helps to have an understanding of the demands that are placed upon parents. It is also important to understand job demands and the conditions in the area to which the foreign national would have to return. We at The Law Office of Sheela Murthy were pleased to have gained another approval to help keep a family together.