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Current Trends in J-1 Waivers Based on Exceptional Hardship to a U.S

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Current Trends in J-1 Waivers Based on Exceptional Hardship to a U.S Copyright © 2015, American Immigration Lawyers Association. Reprinted, with permission, from Immigration Practice Pointers (2015–16 Ed.), AILA Education and Resources, http://agora.aila.org. Current Trends in J-1 Waivers Based on Exceptional Hardship to a U.S. Citizen or Lawful Permanent Resident Spouse or Child by Dan Berger, Kimberley Best Robidoux and Sheila Starkey Hahn Dan Berger won the 1995 American Immigration Lawyers Association (AILA) annual writing competition for an article on INS policies toward international adoptions. Dan has also been editor for the AILA annual conference volume since 2000, and edited Immigration Options for Academics and Researcher (2005 and 2011 editions), the International Adoption Sourcebook, and the Diplomatic Visa Guide. He has written various articles on Outstanding Researcher cases, and AILA Monographs on temporary visa (D3) waivers, visas for Iraqi and Afghan translators, and DNA testing in immigration cases. Dan developed his interest in immigration in college, where he studied immigration history and taught English to adult refugees. Kimberley Best Robidoux is is a senior attorney with Maggio + Kattar PC in San Diego, California. A graduate of Albany Law School and Cornell University, she is licensed to practice in California, Maryland, and Washington, D.C. and has focused primarily on employment-based immigration law, including employment of foreign nationals and corporate compliance issues since 1996. She currently serves as Co-Chair (Business) of the AILA National Distance Learning Committee, Chair of the San Diego Chapter’s Creative Writing Essay Contest Committee, and is past chair of the AILA San Diego Chapter (2011–12). Sheila T. Starkey Hahn is a solo practitioner in Memphis, TN. She has served on the AILA DC Chapter’s Executive Committee and as the AILA DC Chapter’s Ambassador to the American Immigration Council (AIC). Other AILA positions include the DC Chapter Pro Bono Liaison and Citizenship Day Chair. ********** INTRODUCTION This advisory reviews the procedure and standards for J-1 waivers based on exceptional hardship to a U.S. citizen (USC) or lawful permanent resident (LPR) spouse or child, and examines current trends in waiver decisions by the Administrative Appeals Office (AAO). Note that it is always best practice to be sure an Exchange Visitor is indeed subject to the two-year foreign residence rule – a notation on a visa stamp or a DS-2019 is not always accurate. The attorney can request a free Advisory Opinion from the U.S. Department of State (DOS) to confirm.1 If the Exchange Visitor is subject to the two year rule and requires a waiver, it is not the easiest process and initially preparing a strong case via strategy and documentation is essential. We have examined eighteen exceptional hardship cases decided by the AAO and published at the uscis.gov website between the beginning of 2012 and the end of 2014, summarizing each case and identifying common themes and practice pointers for attorneys preparing waiver requests based on exceptional hardship. 1 The DOS Advisory Opinion instructions are at http://travel.state.gov/content/visas/ english/general/advisory-opinions.html. For more general information on INA 212(e), the J-1 two year home residence requirement, see A. Chehrazi, “About INA 212e – A Surprisingly Complex Subject,” AILA Immigration Options for Academics and Researchers, Berger & Sostrin Eds. (2nd Ed, 2011) at 91–94. 829 Copyright © 2015, American Immigration Lawyers Association (AILA) 830 2015 AILA Immigration Practice Pointers PROCEDURE FOR APPLYING FOR A J-1 WAIVER (EXCEPTIONAL HARDSHIP) Exceptional hardship waivers require the initial filing of Form I-612 with U.S. Citizenship and Immigration Services (USCIS).2 If USCIS denies an I-612 waiver before seeking a DOS Advisory Opinion, the denial may be appealed. However, if USCIS denies an I-612 waiver based on an unfavorable DOS recommendation, there is no right of administrative or judicial appeal. Nonetheless, a judicial appeal may sometimes be a sound strategy if the negative decision came from USCIS.3 When the AAO overturns an I-612 waiver application denial, it remands the matter to USCIS to complete a transmittal form to DOS recommending approval, and to forward the application to DOS for its advisory review for “program and policy” considerations.4 A waiver under §212(e) of the Immigration and Nationality Act (INA)5 may not be approved without the favorable recommendation of the DOS.6 If the DOS recommends that the application be approved, then the U.S. Department of Homeland Security (DHS) may waive the two-year foreign residence requirement if admission of the applicant to the United States is found to be in the public interest. However, if DOS recommends that the application not be approved, the application will be re-denied with no right to appeal. The Law Relating to J-1 Waivers based on Exceptional Hardship Section 212(e) of the Immigration and Nationality Act (INA) sets out the two-year home residence requirement. In Matter of Mansour, 11 I&N Dec. 306 (BIA 1965), the Board of Immigration Appeals (BIA) sets out a two-part test to evaluate hardship if the J-1 individual spends two years abroad, or if the J-1 and U.S. or LPR relative go abroad together for two years.7 2 8 CFR §212.7(c)(5). 3 S. Yale-Loehr, et al., “Administrative Appeals Office Practice Pointers,” Immigration Practice Pointers (AILA 2010–11 Ed.) at 404. 4 When the AAO makes a favorable decision on an Appeal, they remand the matter to the Director to request a section 212(e) waiver recommendation from the Director, U.S. Department of State (DOS), Waiver Review Division (WRD) under 22 CFR §514. 5 Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101 et seq.). 6 22 CFR §41.63(b)(2)(ii) and (b)(2)(iii). Arguably, the only role for DOS is to review program and policy considerations, including consulting with the funding or sponsoring agency. However, as a practical matter, DOS will review the underlying hardship claim - at times with more scrutiny than USCIS. At least one case supports the proposition that failure to comply with its own internal guidelines is abuse of discretion by USCIS. Chong v. USIA, 821 F.2d 171 (1987). For example, if DOS did not share the evidence of hardship with the funding agency, but failed to recommend based on opposition by the funding agency, that might be subject to judicial challenge. 7 “[I]t must first be determined whether or not such hardship would occur as the consequence of her accompanying him abroad, which would be the normal course of action to avoid separation. The mere election by the spouse to remain in the United States, absent such determination, is not a governing factor since any inconvenience or hardship which might thereby occur would be self-imposed. Further, even though it is established that the requisite hardship would occur abroad, it must also be shown that the spouse would suffer as the result of having to remain in the United States. Temporary separation, even though abnormal, is a problem many families face in life and, in and of itself, does not represent exceptional hardship as contemplated by section 212(e), supra.” Copyright © 2015, American Immigration Lawyers Association (AILA) Current Trends in J-1 Waivers Based on Exceptional Hardship 831 The first step required to obtain an exceptional hardship waiver is to establish that the applicant’s USC/LPR spouse or child would experience exceptional hardship if he or she resided in the home country for two years with the applicant. The second step is to establish that the applicant’s USC/LPR spouse or child would suffer exceptional hardship if he or she remained in the United States during the period the applicant resides abroad. The AAO has confirmed in at least one decision that the standard for proof of exceptional hardship in I-612 waivers is a lesser standard than the “exceptional and extremely unusual” hardship standard in cancellation of removal cases.8 At least one AAO case has confirmed that INA §204(l) applies to I-612 hardship cases - so that the death of the U.S. citizen spouse is no longer fatal to the waiver case. (See case #8 below). It also is important to note that hardship waiver applications must include evidence of the relationship with the anchor relative - either a birth certificate or marriage certificate.9 The AAO routinely references the standard set forth in the following case in their deliberations: in Keh Tong Chen v. Attorney General of the United States, 546 F. Supp. 1060, 1064 (D.D.C. 1982), the U.S. District Court, District of Columbia stated that: Courts deciding [section] 212(e) cases have consistently emphasized the Congressional determination that it is detrimental to the purposes of the program and to the national interests of the countries concerned to apply a lenient policy in the adjudication of waivers including cases where marriage occurring in the United States, or the birth of a child or children, is used to support the contention that the exchange alien’s departure from his country would cause personal hardship. Courts have effectuated Congressional intent by declining to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a two-year sojourn abroad.” [Quotations and citations omitted.] The burden of proving eligibility for a waiver under section 212(e) of the Act rests with the applicant,10 who must prove by a preponderance of the evidence that the beneficiary is fully qualified for the benefit sought.11 A common thread in the AAO denials we encountered was a lack of supporting documentation.
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