Friday, December 23, 2016

J-1 Visa: Foreign Residency Requirement, No Objection Statement (China) and Exceptional Hardship Waiver

We recently worked on a J-1 Visa case where the young lady came here from China on a J-1 Visa, married a U.S. Citizen, and is now seeking a waiver for her foreign residency requirement. The wonderful thing is that J-1 Visas are a good substitute for the overused H-1B, as long as the employer hires through a sponsoring organization. This topic is beyond the scope of this blog, but please contact us if you are interested in finding out how you can do this.

There were several issues with the Foreign Residency Requirement...
First, the DS-2019 had checked the box specifying that she was "Not subject to the foreign residence requirement." However, the advisory opinion that the prior attorney received stated that she WAS subject to the requirement, because her "field of specialization is included on the Exchange Visitor Skills List for the exchange visitor's country." Here, the moral of the story is that you can't go by the DS-2019, you should request an advisory opinion, which would help clarify the situation. However, as with all issues in law, this takes time, about 4-6 weeks at the very least.

Why was there a prior attorney? 
The backstory to why the client came to us is that the prior attorney took too long to get back to them regarding this issue. With the fee increase happening on December 23, the client was getting anxious and began searching for an alternative immigration attorney. In this case, we were able to take care of it at a much lower cost and we got the petition in before the fee increase that took place on December 23rd. The fee increase would have raised the filing fee for Form I-612 (Exceptional Hardship Waiver) from $585 to $930!

Understanding the time-sensitivity of the situation, when this particular client contacted us, we got to work right away for her. We found out that we could file the No Objection Statement AND the Exceptional Hardship Waiver at the same time, to double her chances of getting her foreign residency requirement waived. To start the process, you have to fill out the DS-3035 Form from the Department of State and in the Statement of Reason, mention both reasons.

No Objection Statement 
We would recommend that you request a No Objection Statement from your home country's embassy in any case, unless you are a foreign medical physician and do not qualify.

To request a No Objection Statement from China is rather complicated as you do not request it directly from the Chinese Embassy, but from a non-profit organization affiliated with the Chinese Ministry of Education, the New York Service Center for Chinese Study Fellows, Inc. For more information on how to request, after completing the DS-3035, see J-1签证豁免. This is also where you would send the Third-Party Barcode page provided with the DS-3035, along with all their requested documents. 

Exceptional Hardship Waiver
Next, we had to address how the U.S. Citizen spouse could suffer exceptional hardship in the event that the J-1 spouse is forced to complete her foreign residency requirement. You have to address (1) how the U.S. Citizen spouse will suffer exceptional hardship if he leaves the country with the J-1 spouse, and (2) how the U.S. Citizen spouse will suffer exceptional hardship if the J-1 spouse leaves without him. And of course, corroborate everything you say with evidence to avoid further Requests for Evidence from USCIS!

In this case, we had a lengthy conversation talking about how the U.S. Citizen spouse's career would be disrupted, how he would be forced to leave his grandmother who suffers from Alzheimer's, how he himself suffers from a stress-caused illness that must be monitored carefully.

If all this information overwhelms you, that is why we are here, contact us at 617-871-0788 for help!


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