Some individuals who enter the United States using J-1 visas are subject to the two-year home residence requirement. If the home residence requirement applies, an individual must return home for two years upon the completion of their J-1 program or receive a waiver of the requirement. If the individual neither complies nor receives a waiver, then the individual may not receive an H category visa, an L category visa or a green card until they do so. Congress created multiple categories of J-1 waivers. The hardship waiver is one such category.
A hardship waiver may be available to an individual who can show that their compliance with the home residence requirement would cause exceptional hardship to a U.S. citizen or Lawful Permanent Resident spouse or child. The hardship must exist if the qualifying relative returns to the J-1’s home country for two years or if they are separated for two years. Types of hardship that might qualify, include but are not limited to, medical hardships, financial hardship (including career disruption), educational hardship, language/communication hardships, psychological hardship and hardships caused by political instability or other difficult conditions in the J-1’s home country.
A hardship waiver requires the filing of initial applications with both the US Department of State and USCIS. If USCIS finds that hardship exists, it will forward the application to the US Department of State for further consideration. If the Department of State agrees, it will recommend approval of the waiver and send it back to USCIS for final approval. Upon approval of a hardship waiver, an individual becomes immediately eligible to apply for a green card and/or for H-1B or L-1 status.
Additional Resources:
The Physician Immigration Handbook, 5th Ed. (2020).
