J-1 Visa: 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. Contact us to see how.
In Our Case - Foreign Residency Requirement ConfusionFirst, 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.
No Objection StatementWe 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????. 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 WaiverNext, 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.