J-1 Waiver Exceptional Hardship to USC or LPR Spouse or Child

J-1 waiver for exceptional hardship to a U.S. citizen spouse or child.? We have already discussed the option of the J-1 waiver of the two-year foreign residency requirement for persecution versus filing for asylum. In some situations, while it may be very dangerous to return to your home country, you may not be able to show that the harm you fear is on account of your political opinion, religion, or any of the other bases for either asylum or a J-1 persecution waiver. ?Even if you fear returning to your home country due to civil war or extreme violence by cartels or terrorists, it is not enough to show that you might get in the way of a bullet, or just happen to get blown up.? There must be a nexus to one of the protected grounds.? Also, there is a distinction in the law between discrimination and harassment, versus persecution, which is considered much more severe.

Thus, if your possible case for asylum or a persecution waiver may be weak, you may have the option of filing for a hardship waiver of the J-1 212(e) foreign residency requirement, if you have a U.S. citizen or permanent resident spouse or child who would suffer exceptional hardship should you have to return to your home country to fulfill the two-year foreign residency requirement.

For example, you may have a U.S. citizen spouse or child with severe health issues, and who would not be able to access adequate health care and treatments in the home country. It may be impossible for your spouse to pursue their career in the foreign country, or you and your spouse may be of an age where it would be next to impossible to find a new job, because the vast majority of the population is much, much younger. ?The salaries you and your spouse would earn abroad may be laughably low, and not enough to support you and your family.

Other factors, such as discrimination, may tie into racial or religious persecution, but you may be on a stronger footing with showing hardship, depending upon the particular family’s circumstances and country conditions. While interracial, and inter-religious couples in the U.S. can find communities where they are accepted, in many foreign countries mixed marriages, religiously or ethnically, actually may put your family in danger. Or, the idea of allowing your child to choose his or her religion may be abhorrent in the home country’s culture. ?The U.S.C. or permanent resident spouse or children may not speak the official or local languages, may be a different race or ethnicity, and the mere fact that they are American, and dress as Americans, may attract unwanted attention.

On the other side, you also have to show that your USC or LPR spouse and/or children would suffer exceptional hardship if they had to remain in the U.S. while you, the foreign national, remain abroad for two years. This must amount to more than the average hardships a family would suffer from being separated.

We will discuss procedures and other issues and obstacles to the J-1 hardship waiver in another post.? So, stay tuned!

This article is for informational purposes only and is not meant as legal advice.

Copyright 2025 ? Heidi J Meyers, all rights reserved.? ?