Philippine Safety and Environment Concerns Cited in J-1 Waiver

The J-1 Visa allows certain individuals to come to the U.S. to work or study on a temporary basis under an approved Exchange Visitor Program.

Most international medical graduates are allowed to come to the U.S. under an approved J-1 internship program to work as medical interns.

When the J-1 visa expires, the foreign physicians are required to return to their home county and reside there for at least two (2) years before they apply for U.S. permanent residence. They also cannot extend or change their status in the U.S. to other visa categories other than A or G.

But the foreign residence requirement may be waived if it is requested by an interested U.S. government agency or recommended by a state health department. It may also be waived if the physician proves that he/she would be subject to persecution or that his/her U.S. citizen or permanent resident spouse or children would suffer exceptional hardship upon returning home.

Many have sought waivers on the basis of exceptional hardship but most of them failed to obtain it because of strict requirements. The courts have held that the hardship must be more than just the anxiety, loneliness and changed financial circumstances ordinarily experienced from a two-year stay in one’s home country.

In a recent case, a Filipina was able to prove the degree of hardship required by citing the environmental concerns and the dangers of living in the Philippines.

The Filipina physician entered the U.S. in August 1991 under a J-1 visa to undergo graduate medical training. In connection with her application for permanent resident status, she sought a waiver of the foreign residence requirement. She claimed that her U.S. citizen spouse and three children born in 1993, 1996 and 1999 would suffer exceptional hardship if they relocated with her to the Philippines or remained in the U.S. while she went back home for two years.

The United States Citizenship and Immigration Services (USCIS) District Director denied her waiver application for failure to prove exceptional hardship. She then appealed to the Administrative Appeals Office (AAO).

The AAO agreed with the applicant that indeed her children would suffer exceptional hardship if she were to fulfill the two-year residence requirement.

In her appeal, she claimed that her eldest child suffered from bronchial asthma that would worsen if he lived with her in the Philippines on account of the severe air pollution there. She also claimed that her children would be dislocated from their established way of life in the U.S. and would be alienated since they did not speak or understand the native language.

She also raised safety and security concerns since there were news accounts and travel advisories about terrorism and kidnapping of U.S. citizens. She provided numerous documentary proofs and articles about these conditions and environmental issues to substantiate her claim.

On the other hand, if they were to remain in the U.S. while she temporarily stayed in the Philippines, her children would suffer exceptional hardship because her spouse would be unable to attend to his work and at the same time take care of their children by himself. Because she was the primary caregiver of her children, their well-being would be jeopardized if they were forced to be separated from their mother, especially since her eldest had a medical condition that required close care and her youngest was only five years old.

The AAO decided that based on the totality of circumstances as presented by the applicant, the children would encounter exceptional hardship if she were to go back to the Philippines to fulfill the residence requirement.