BY: Kenneth M. Ventresca, Esq., Lisa M. Ventresca, Esq. and Michael Cassidy, Esq.
Foreign Medical Graduates (FMGs) who reside and are employed in the United States on a J-1 Visa generally are required to return to their home country for a period of two (2) years as a prerequisite for applying for permanent residency or an H1B Visa. This requirement is known as the foreign residency requirement and constrains the immigration options for FMGs on J-1 Visas. The only way to get around the foreign residency requirement is to obtain a waiver.
The law provides that the two-year foreign residency requirement may be waived under the following circumstances:
1. Persecution Based Waivers: If the FMG can demonstrate that he or she cannot return to the country of his or her nationality or last residence because he or she would be subject to persecution on account of race, religion, or political opinion;
2. Hardship Waivers: If the FMG can prove that returning to his or her country would result in exceptional hardship to members of his or her immediate family who are US citizens or permanent residents; or
3. Interested Government Agency Waivers: If the FMG is sponsored by an “interested government agency”.
This article will review the Persecution Based Waivers and Hardship Waivers.
Persecution Based Waivers
The exchange visitor may request a waiver of the foreign residence requirement on the ground that he or she would be subject to persecution on account of race, religion or political opinion. In practice, however, it is preferable to file an asylum application rather than file a persecution waiver because:
? A lower standard of proof is applicable to asylum claims. In particular, persecution waivers require a showing that the alien “would be” subject to persecution while the asylum statute requires a showing of a reasonable likelihood of persecution.
? The asylum statute is broader in scope. Specifically, it protects the alien from persecution on the basis of five grounds (i.e., race, religion, political opinion, membership in a particular social group, or nationality).
? In persecution waivers, the Department of State may issue an unfavorable determination on foreign policy or program considerations even if the exchange visitor has established that he or she would be persecuted.
? A grant of asylum has the same effect as a grant of a persecution waiver. The alien will not be required to return to his or her home country if he or she is granted asylum and he or she can adjust to permanent residence through special adjustment procedures applicable to asylees.
Based on the foregoing reasons, FMGs generally have only two meaningful waiver options: an Interested Government Agency Waiver (IGA Waiver) or an exceptional hardship waiver.
The Exceptional Hardship Waiver
A Waiver of the foreign residence requirement may be obtained if the exchange visitor’s departure from the United States would impose exceptional hardship on the alien’s U.S. citizen or permanent resident spouse or child. Note that waiver applications based on hardship to a U.S. citizen or permanent resident spouse are among the most complex and demanding immigration-related applications.
All hardship cases involve two considerations:
1. The hardships if family members accompany the alien to the home country;
2. The hardships if family members do not accompany the exchange visitor to the home country.
As a result, all hardship applications must be argued in the alternative, addressing both considerations. A waiver applicant must establish that exceptional hardship would be imposed on a U.S. citizen or lawful permanent resident spouse or child by enforcement of the foreign residence requirement in both circumstances. Applications are often denied or delayed because one of these considerations is not addressed or documented.
The exceptional hardship must be far in excess of the normal hardship associated with either the separation of family members or the move to a foreign country in satisfaction of the two-year foreign residency requirement. Moreover, exceptional hardship has not been specifically defined. Substantial heartache is expected, and alone is never enough to establish the requisite exceptional hardship.
Prior to its dissolution in 1999, the USIA (United States Information Agency) had provided the following possible factors for consideration of an exceptional hardship waiver; the Agency has emphasized that these factors have no particular weight or order:
? Medical hardships including severe and life-threatening illnesses and conditions, or illnesses and conditions requiring regular care and/or medications not available in the physician’s home country.
? Country conditions for physicians from war-ravaged countries would have a stronger case in demonstrating extreme hardship to U.S. citizen children.
? Social, Cultural and Education related hardships which would result from the physician’s spouse and/or child relocating to a foreign country whose language they do not speak and whose culture is unknown to them.
? Psychological hardships including the exacerbation of an existing disorder or the precipitation of the onset of a disorder, such as post traumatic stress disorder, or severe depression.
? Economic hardship to the physician’s spouse and/or child if the foreign residence requirement is enforced such as maintenance of two households, or severe decrease is salary due to economic conditions for such a profession in the home country.
? Career Interruption or Destruction to the physician’s spouse.
? Political and religious hardship, including fear of violence and oppression based on political views, race, ethnicity, or gender or sexual preference.
Despite the USIAs claim that there is no ordered preference for exceptional hardship grounds, informal analysis of successful exceptional hardship waiver cases has led one practitioner to establish a scale of weighted factors: (1) U.S. citizen spouse and/or child; (2) LPR spouse or child; (3) Third persons facing very serious hardships; (4) Significant public interest factors; (5) Medical hardships to spouse or child; (6) Psychological hardships to spouse or child; (7) Career or educational disruptions to the spouse; (8) Very serious financial hardships; (9) Sociocultural hardships upon relocation to the home country; (10) Significant risk of physical harm due to political violence.
Generally, medical hardships which are well-documented, are often given the most weight by the USCIS and the DOS. In addition, the applicant should include in his or her waiver request as many hardships that may be documented since, taken together, they may establish the requisite exceptional hardship even if individually they are insufficient to warrant a waiver grant.
Under the statute, the only victims who are recognized for purposes of the hardship waiver are U.S. citizen and permanent resident spouses and children. As a result, a hardship waiver cannot be filed unless the exchange visitor has the requisite relationship to a U.S. citizen or permanent