\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 45 Waiver of Section 212(e) Foreign Residence Requirement. \ 45.3 Waiver Based on Exceptional Hardship to USC or LPR Spouse or Child.
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45.3 Waiver Based on Exceptional Hardship to USC or LPR Spouse or Child.
Disposition of Improperly Filed Applications.
Unless an I-612 has been submitted to support a waiver application based upon exceptional hardship or persecution claims, it should be rejected with appropriate instructions to the applicant. If an I-612 application does not indicate that the applicant has a United States citizen or lawful permanent resident spouse or child, and does not allege that return to the country of nationality of last foreign residence would subject the applicant to persecution on account of race, religion, or political opinion, yo
u should return the application and give the applicant an opportunity to resubmit it with the appropriate information requested. If the application is returned without the above information indicated, deny for failure to establish the relationship or persecution necessary to be considered for the specific waiver. Requests by exchange visitors or interested parties for a waiver based on a "no objection" statement or on the sponsorship of a U.S. Government agency should be rejected with instructions to submit
such requests directly to:
General Counsel of the Waiver Review Division,
Department of State
2401 E St., N.W., Room 603,
Washington, D.C. 20547
for that agency's recommendation.
Referral to Waiver Review Division
If the evidence establishes a prima facie case of hardship, you must send the case to the Waiver Review Division for their recommendation. A file must be created to house the application if a Central Index check does not indicate one exists. If the application or documentation is deficient, it should be returned to the applicant with concise instructions concerning what is needed. Unless otherwise instructed or a change of law occurs, the applicant should be given the opportunity to furnish the information
requested before final action is taken on the case.
Review of Application
In reviewing the I-612 application, the adjudicating officer should pay particular attention to the following items:
(“I believe I am subject to the foreign residence requirements because:”) should be reviewed to verify whether the applicant is in fact subject to the foreign residence requirement on the grounds alleged and to ascertain whether additional grounds apply to the applicant's case. For example, an applicant whose exchange visitor program was financed by the government of his or her country may also have participated in graduate medical education or training. All exchange visitor aliens defined in section 101(a
)(15)(J) and 212(e) of the Immigration and Nationality Act who entered the United States as J-1 or changed to such status to pursue graduate medical education or training after January 10, 1977 are subject to the two year foreign residence requirement. (See 8 CFR 212.7(c)(3)) Depending on the basis for the waiver application, existence of multiple grounds for the foreign residence obligation should be included in your evaluation (and that of the Waiver Review Division) as to whether the application should b
(“I am applying for waiver of the foreign residence requirement on the ground that:”) If neither block A nor block B has been checked, the application must be returned with proper instructions. If both blocks are checked, the applicant must provide documentation for both claims.
(“List all program numbers and names of
programs sponsors”) The applicant must provide all program numbers and sponsors to determine whether he or she is actually subject to the residence requirement and to assist the Waiver Review Division in its evaluation of the case for recommendation purposes. The Waiver Review Division may regard program sponsorship by a Federal government agency as an important factor in deciding whether to recommend that the waiver be granted. This information may also indicate whether the purpose of the applicant's prog
ram participation was to acquire knowledge or training in this country or to impart knowledge of skills acquired abroad.
(“Major field of activity”) and
(“Occupation”) aid in determining whether the applicant's program is on the Skills List of the country of nationality or last foreign residence. In the event that the I-612 cannot be approved, these items may also suggest federal government agencies from which the alien may seek sponsorship for an alternative waiver application based upon their interest in the alien's program activities.
(“Date and port of last arrival in the United States...”) requires the submission of the applicant's I-94. The I-94, and other travel documents (IAP-66, etc.), not only reflect the applicant's entry but normally contain the information necessary for the purpose of verifying the applicant's identity and admission as an exchange visitor (if claimed), and tracking of the original Bureau file.
(“If you are now abroad, give date of departure from U.S.”) is twofold in purpose: first, to facilitate verification of the applicant's claimed departure; second, to provide a basis for computation of the time spent abroad in fulfillment of the foreign residence obligation (the applicant will be exempt from the waiver requirement if he or she has resided in the country of nationality or last foreign residence for at least two years following termination of exchange visitor status). Unless the applicant can
furnish conclusive evidence of an alleged fulfillment of the requirement, the information should be verified from Bureau records.
(concerning the applicant’s prior marriages) is important in a hardship case dependent on a relationship to a United States citizen or lawful permanent resident spouse, because documentation of the legal termination of the prior marriage(s) will be needed to establish the applicant's eligibility for the waiver. In the case of a previously married female applicant, it may also suggest use of prior names.
Items 13 through 16
(information on the applicant’s spouse and children) concern the relationship to the United States citizen or lawful permanent resident spouse or child. If the application is based upon allegations of exceptional hardship to the applicant's spouse or child, then information regarding the name, date, and place of birth, and the citizenship or lawful permanent resident status of the relative must be documented. However, lawful permanent resident status or citizenship (acquired through naturalization or deriv
ation) may be verified from Bureau records and noted on the application. The applicant cannot claim hardship to himself because this would disqualify him. The exceptional hardship must relate to the applicant’s spouse or child. The applicant must establish the hardship to the spouse or child while remaining in the U.S. without the applicant
if the applicant's spouse or child went abroad for two years. In other words, exceptional hardship must be demonstrated if the spouse or child stayed in the U.S. or went abroad.
For cases involving hardship to a spouse or child, the applicant must also submit documentary evidence of qualifying relationship(s).
Written Statement of the Applicant
The applicant's signed statement is an integral part of the I-612 application. In cases based upon exceptional hardship claims, the statement must specify how the applicant's compliance with the foreign residence would impose exceptional hardship on the United States citizen or lawful permanent resident spouse or child. Where relevant to the allegations of hardship, you may require supporting evidence, such as a physician's diagnosis and prognosis, or affidavits from the spouse's dependent parents.
An application based upon a claim that return to the country of nationality or last foreign residence would subject the
to persecution on account of race, religion, or political opinion must include a detailed statement of the basis for the applicant's belief that he or she would be persecuted. Where appropriate, affidavits by persons with direct knowledge of the alleged facts should be requested. If after reviewing the evidence, you still have reason to question the validity of the persecution claim, you may request an advisory opinion from the Waiver Review Division. Additional information about the state of human rights
(as well as some economic conditions) in the applicant's country can be obtained from the current edition of the
Country Reports on Human Rights Practices
, published annually by the Department of State.
You may request additional documentation which you think necessary for a proper evaluation of a hardship or persecution claim; but in no case can such evidence be accepted as a substitute for the applicant's own signed statement. If that statement is lacking, the application must be returned to the applicant. If the applicant does not comply with the request by submitting a signed statement, the application must be rejected as deficient.
Consultation with the United States Public Health Service
When a medical officer of the USPHS has been consulted (telephonically or in writing) in connection with an "exceptional hardship" case, you should record the advice or opinion in memorandum for the file, unless the advice has been received in writing.
The USPHS has advised that it is unable to provide expert advice concerning the availability of facilities for medical treatment abroad. Therefore, in cases where it is alleged that a serious physical or mental condition, such as a malignancy requiring extensive surgery, requires the continuing treatment of the applicant's spouse or child in the United States, you should make a determination without consulting USPHS solely for that issue. However, USPHS may be consulted about other matters, such as whether
specified dangerous diseases are endemic in a certain country (see, e.g.,
Matter of Ambe
, 13 I&N Dec. 3 (District Director 1968)).
Processing of the I-613
When you send the case to the Waiver Review Division for their recommendation, you must complete an I-613 and instruct the clerical section to make copies of the I-612 and supporting documentation to be sent with the I-613. Where you are persuaded that the evidence supports a finding of exceptional hardship or persecution, you should summarize the pertinent information on Form I-613 (Request for Waiver Review Division Recommendation). After its endorsement by the Director, forward the first four pages (with
out removing the carbons) together with the I- 612 to the Waiver Review Division. The last carbon copy should be retained with supporting documents in the file until the original has been returned by the Waiver Review Division. At that time, the endorsed original I-613 should replace the carbon copy in the file, and the returned "Public Information" copies should be distributed to the public reading room.
The spouse of a principal applicant will be included in the I-613 request for Waiver Review Division recommendation if he or she: (1) has been in J-2 status during a time when the principal applicant was subject to the foreign resident requirement; and (2) has not been in a separate J-1 program subject to the foreign residence requirement. Examination of a copy of the front and back of the spouse's I-94 will aid you in making that determination. If J-2 children are also involved, you will endorse the approp
riate block of the I-613 to designate USCIS as the "interested agency" recommending their inclusion in the waiver request.
If the applicant cannot establish a prima facie case of hardship or persecution through the documentary evidence submitted, you should deny the application. This is done on an I-292 since the applicant has appeal rights in this case.
If the Waiver Review Division recommends approval, the application can be approved. Use standard approval letters for I-612. You cannot approve an I-612 without a favorable recommendation from the Waiver Review Division. The applicant gets only a letter. The application stays in the file.
If the Waiver Review Division does not recommend approval, you should deny the application. There is no appeal right from this type of denial because the unfavorable recommendation came from Waiver Review Division, not from this agency.
Other Consultation with the Waiver Review Division
Apart from the I-613 context, you may also consult with the Waiver Review Division in cases where that agency has better access to information necessary for your adjudication, or where the Waiver Review Division has made a recommendation which appears to be based upon faulty information (for example, where an applicant has omitted to mention a previous J-1 program funded by the government). For such consultations you should use regular
stationery, rather than the I-613.
Adjudication of the 212(e) Waiver Application
Under the Act, approval or denial of section 212(e) waiver application filed by an eligible applicant is a matter of Service discretion. In the case of I-612 applications, the law specifically requires not only
eligibility but also a finding that the applicant's admission to the United States is "in the public interest." If the applicant cannot establish a prima facie case of hardship or persecution through the documentary evidence submitted, you should deny the application. You must prepare an I-292 since the applicant has appeal rights in this type of case. All cases generally rely on the recommendation of the Waiver Review Division and the interested federal government agency, as appropriate. If that recommend
ation appears to rely on faulty information, it is preferable to invite the Waiver Review Division to reconsider its recommendation, rather than deny the application for such reasons. You cannot approve an I-612 without a favorable recommendation from the Waiver Review Division.
If you decide that this agency should concur in a Waiver Review Division recommendation that the waiver be granted, then a notice of approval must be prepared by selecting the appropriate approval screen in CLAIMS, and issued to the applicant and the applicant's legal representative. Send copies to the Waiver Review Division and to the interested government or government agency (if applicable).
Denial of the Waiver Application
If the application to be denied is subject to appeal, Form I-292 must be used for the notice of denial. For denial of applications based on hardship claims, it is important to clearly explain why the alleged hardship evidence does not meet the exceptional hardship standard of the statute. In section 212(e) waiver denials not subject to appeal (e.g., a denial based on lack of a favorable recommendation from the Waiver Review Division) the denial order does
require the I-292, but simply ordinary stationery.
If appropriate, the denial notice should refer to the options of seeking a waiver based upon a statement of "no objection" from the applicant's country of nationality or last foreign residence (except in the case of a foreign medical graduate described in section 212(e)(iii)), or the recommendation of an interested agency of the United States Government.
It is permissible to deny an I-612 application without consultation with the Waiver Review Division. However, if the Director of USCIS sustains an appeal from such a denial and remands the case to the local office or Service Center for compliance, you must then obtain a recommendation from the Waiver Review Division before adjudication can be completed. If the Waiver Review Division recommends that the application
be approved, then the application
must be denied again
Precedent Decisions Relating to Exceptional Hardship
The foreign residence requirement may be waived if it is determined that the exchange visitor’s departure would cause exceptional hardship to his or her U.S. citizen or lawful permanent resident spouse or child. The exchange visitor’s admission must also be found to be in the public interest. The Act does not define the term “exceptional hardship.” There is, however, an extensive history of case law pertaining to hardship in the context of immigration law from which general principles can be drawn. First, t
he claimed exceptional hardship must be considered for the qualifying spouse and for any qualifying children. Second, an exceptional hardship claim must be considered under the circumstances of both relocation abroad and separation on the qualifying spouse or children. Third, while a determination of exceptional hardship is not fixed or inflexible, a number of common factors may be considered in examining a claim of exceptional hardship. No single factor would normally be determinative, but all relevant fac
tors should be considered in the aggregate in order to render a determination of exceptional hardship. Exceptional hardship to the qualifying family members must be that which is beyond the normal hardship expected from a temporary relocation or separation.
Matter of Anderson
, 16 I&N Dec. 596 (BIA 1978). Factors which the BIA have found to be appropriate for consideration in the context of applications for suspension of deportation in which an alien must show
hardship include, but are not limited to: the subject’s age; family ties in the United States and abroad; length of residence in the United States; health condition; political and economic conditions in the home country; financial status; occupation and employment prospects; immigration history; and position in the community.
Matter of Ambe
, 13 I&N Dec. 3 (DD 1968). Exceptional hardship was found where the USC child was allergic to the smallpox vaccine, and smallpox was endemic to the home country. Waivers were accordingly granted under section 212(e).
Matter of Vicedo
, 13 I&N Dec. 33 (DD 1968). Hardship was found for purposes of a section 212(e) waiver where evidence showed that the two USC children would be deprived of the love and care of their parents, and the father could not pay transportation to the Philippines or maintain the family there.
Matter of Lai
, 13 I&N Dec. 188 (RC 1969). Application was denied where the minor USC child would suffer only the normal hardship of language difficulty, lesser educational opportunities, and hardship resulting from the parent's reduced earnings in Taiwan. Exceptional hardship was, therefore, not found for purposes of section 212(e).
Matter of Coffman
, 13 I&N Dec. 206 (Dep. Assoc Comm’r 1969). A liberal attitude was found permissible where the applicant's participation was to impart skills to American teachers, and where she had minimal time remaining in which to complete the two year foreign residence requirement.
Matter of Amin
, 13 I&N Dec. 209 (RC 1969). Exceptional hardship was not found where the mother's skin condition did not in the past impair her ability to care for her USC children, and treatment for the condition was available in her home country.
Matter of Savetamal
, 13 I&N Dec. 249 (RC 1969) . Hardship was found for purposes of a section 212(e) waiver where the LPR spouse would be forced to give up an established medical career, or maintain two households, causing the USC child to be deprived of the father's affection and guidance.
Matter of Ibarra
, 13 I&N Dec. 277 (RC 1968). Hardship was found where the pregnant USC spouse would suffer a disruption of her education and plans for a career, and where residence in the Philippines would be detrimental to her health.
Matter of Lejman
, 13 I&N Dec. 379 (RC 1969). Hardship to the USC was child found because a Jewish background would subject the child to social and economic persecution in Poland. A waiver under section 212(e) was accordingly granted.
Matter of Gupta
, 13 I&N Dec. 477 (Dep. Assoc. Comm’r 1970). Exceptional hardship was found where a prior visit of the USC child to India resulted in medical disorders due to climatic conditions and the unavailability of foods to which the child was accustomed.