If you are a J-1 visa holder who cannot apply for a U.S. green card or other visa until you have satisfied the two-year home residency requirement (I.N.A. § 212(e)), there's no need to give up yet. One possible way of getting around this requirement is to apply for a waiver. And among the waiver possibilities is one in which you demonstrate that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child.
Here, we'll discuss how to apply for that hardship waiver in order to allow you to proceed with your visa or green card application.
If you think you might qualify for this waiver, you'll need to get approval from both U.S. Citizenship and Immigration Services (USCIS) and the Waiver Review Division (WRD) of the U.S. Department of State's Bureau of Consular Affairs before going forward with your green card or visa application.
Your first step is to file an application with the WRD. Begin by going to the J Visa Waiver Online website. Click the link to create an online application. You'll enter information on a series of pages, and this will create the application form that the WRD needs. The State Department provides detailed instructions for filling out this form.
At the end, you'll get a case number that you can use to check the progress of your case.
Unfortunately, you can't complete the whole application process online. You will need to send the WRD a paper copy of your completed application form, a printout of the page with the bar code on it that was generated when you filled out the online form (black and white, not in color), a check or money order for the application processing fee ($120 as of 2023), and other documents in support of your application. (The website will tell you what to send and where to send it all.)
One of the documents that the WRD will need before it makes a decision on your application is a favorable recommendation of the exceptional hardship waiver from USCIS. USCIS will forward that recommendation directly to the WRD, but first you need to ask USCIS for it. Do that by applying on USCIS Form I-612. Wait to file your I-612 until you've applied with the WRD first—otherwise, the WRD won't know what to do if USCIS sends its recommendation.
You'll have to print this Form I-612 out after you complete it, and mail it to the address on the website, along with the USCIS filing fee, ($930 as of 2023).
It's at this point in the process that you present your case for exceptional hardship. You must prove to USCIS, by your written statement and any documents you have that support what you're saying, that your spouse or child is a U.S. citizen or lawful permanent resident ("green card" holder) who would suffer "exceptional hardship" if you had to go back to your home country for two years or if they left the U.S. in order to stay there with you. Your best bet is to explain the likely hardships associated with both scenarios.
Being apart from you or having to leave their life in the U.S. would be a hardship on your qualifying relatives, sure, but that's not enough. Their hardship must be "exceptional."
Medical problems are often seen as creating exceptional hardship, whether it's because you wouldn't be in the U.S. to assist in the person's care or in working to help pay or provide insurance for that care, or because treatment for the condition wouldn't be adequate in your home country.
Hardships can also be psychological, social, cultural, economic, educational, career-related, political, religious, or due to compulsory military service. For example, there might be a family business in the United States that would fail if you are not in the United States, or your dependent family members might not be able to pursue their profession or obtain special-needs education if they were to follow you home.
Show as many different types of hardship as you can. Even if one type of hardship is not exceptional, a combination of smaller hardships could amount to something exceptional.
If you successfully convince USCIS that your family is likely to experience exceptional hardship, it will send a Form I-613 recommendation notice to the WRD. That's not the end of the story, however. You still need to get the WRD's approval of the waiver.
Particularly if you were subject to the two-year home residency requirement because of your receipt of government funding, the WRD could still deny your waiver. If the WRD recommends approval, it will send the I-613 back to USCIS indicating its approval. USCIS will then issue you an approval notice on Form I-797.
With that notice, you can proceed to file the adjustment of status or change of status application you need in order to stay in the United States and get a green card or a different type of nonimmigrant (temporary) status.
In any type of case that involves proving hardship, creating a convincing argument before U.S. immigration authorities can require much more than just filling out forms. An experienced immigration attorney can help evaluate your situation, prepare arguments in the form of a cover letter or legal brief, accompanied by supporting evidence, and monitor your case to completion.