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J-1 Physicians Part 1: The Hardship Waiver And Persecution Waiver

Posted by Ann Badmus | Aug 20, 2012 | 0 Comments

As discussed in one of our recent articles, Immigration For Medical Professionals: Attending Medical School In the U.S., foreign physicians who wish to practice medicine in the U.S. can enter under a J-1 visa. One of the main requirements of this visa is that you must return to your home country after two years after completing residency.

If you are a foreign physician with a J-1 visa and you want to begin practicing medicine in the U.S. immediately after completing your residency or fellowship, the two year foreign residency requirement imposed by the J-1 visa is obviously a significant drawback.  Fortunately, there are three methods of obtaining a waiver of this requirement.  In this article we will discuss the Hardship Waiver and the Persecution Waiver.

The Hardship Waiver

This waiver is granted when requiring a foreign physician to return to their home country would impose an “exceptional hardship” on their spouse and children who are U.S. citizens or permanent residents. If you are a J-1 physician, you must meet a two-part test to establish exceptional hardship:

  1. You must show that your family members would suffer exceptional hardship in your home country if they were required to return with you for the two-year period.
  2. You must show that your family would suffer exceptional hardship if they remained in the United States without you for two years.

As a practical matter, exceptional hardship is difficult to establish.  For instance, the fact that the family would have to be separated is not enough to establish exceptional hardship by itself.  It usually requires that the foreign residency requirement would force the family to live together in a war-torn or economically-ravaged country or be without necessary medical treatment or social services that are unavailable in the foreign national's home country.  It also requires that the family would suffer equally as much if the physician returned home and left the family in the United States.

IMPORTANT NOTE: The Hardship Waiver is only available if your spouse or children are American citizens (or at least, permanent residents of the U.S.).  Therefore, if you bring your existing family to the U.S., the hardship exemption is not available to you, regardless of the circumstances in your home country.

The Persecution Waiver

US Citizenship and Immigration Services (USCIS) and the Department of State (DOS) will waive the foreign residency requirement if it is determined that you are likely to face persecution in your home country based on your race, religion or political opinions. The persecution may be caused by the home country government or a group that the government is unwilling or unable to control.

In our next article we will discuss the Interested Government Agency Waiver.

About the Author

Ann Badmus

Principal and Managing Attorney


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