Representing approximately 6% of all waivers granted to physicians holding J-1 visas, the 'hardship' waiver requires a persuasive showing that either an American citizen/permanent resident spouse or child will suffer exceptional hardship should the J-1 visa holder be required to return home to fulfill the two-year home residency requirement. To be successful in this type of application, the following must be demonstrated:
- the American citizen/permanent resident spouse or child will suffer exceptional hardship if the spouse and/or child(ren) remain in the United States while the J-1 physician returns home for two years; AND
- the American citizen/permanent resident spouse or child will also suffer exceptional hardship if the spouse and/or child(ren) travel home with the exchange visitor for the two year period.
Main Advantage: The main advantage of the hardship waiver is that it does not carry with it any work requirement. Hence, the physician is not limited to working in underserved areas.
Main Disadvantage: Hardship waiver applications are discretionary and often require 6-10 months for adjudication (which may be longer than other waiver routes). Moreover, it is generally not recommended to have more than one waiver application pending at any given time – hence, filing hardship waiver application may limit ability to file a different type of waiver application (without first withdrawing the hardship waiver).
Main Factors Used for Determining Exceptional Hardship:
- general country conditions affecting health, safety or general welfare of U.S. citizen/legal permanent resident spouse or child or children;
- chronic medical condition of U.S. citizen/lawful permanent resident spouse, child or children, and lack of adequate medical treatment in applicant's home country;
- presence of threat to safety of U.S. citizen/legal permanent resident spouse, child or children due to political or religious considerations in applicant's home country; and
- serious financial consequences affecting U.S. citizen / permanent resident spouse or child.
While the US Department of State and the US Immigration Service retain discretion in determining whether a case poses an exceptional hardship, our law firm has developed special strategies for handling these types of waiver applications.