Irrespective of the statutory basis on which you are applying for the waiver, make sure to read the common waiver application procedures first.
If you are subject to a two-year home residence requirement, and if complying with it would impose exceptional hardship to your U.S. citizen or permanent resident spouse or child, you may apply for an exceptional hardship waiver.
Mere separation from family is not considered to be sufficient to establish exceptional hardship. Also, the hardship caused to you (J visa holder) is not taken into consideration. Hardship associated with readjustment to the home country is not sufficient either.
However, if your spouse or child have any mental or physical conditions that require treatment that can’t be provided in your home country, that may be sufficient to prove exceptional hardship. Other factors, such as a U.S. spouse’s career, home-country conditions, income contribution of each spouse (especially that of the J visa holder), discrimination, and educational opportunities may be considered. You must document each factor well in order for it to increase the chance of getting this waiver, as it is generally difficult to get this waiver approved.
In addition to the regular waiver application with the U.S. Department of State, you must submit Form I-612, Application for Waiver of the Foreign Residence Requirement, directly to USCIS.
USCIS will forward its decision directly to the Waiver Review Division of the U.S. Department of State. Only if USCIS makes a finding of exceptional hardship, the Waiver Review Division will proceed with the waiver recommendation under this basis.
The waiver application with U.S. Department of State (DOS) can be submitted either before you submit Form I-612 to USCIS or after USCIS has made the favorable decision. However, if you submit the waiver application to USDOS before you submit Form I-612 to USCIS, and USCIS does not make an exceptional hardship finding, you will not get any fee refund from USDOS.
You cannot apply for a waiver based on persecution and exceptional hardship simultaneously. You may apply under only one of these two bases.
Through USCIS Case Status Check online.
If your Form I-612 request was denied by USCIS, a request to reconsider must be made to USCIS.
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