J Visa Waiver of the Two-Year Home Residence Requirement

January 28, 2010
Filed under: J-1 Waiver 

The statute declares that exchange visitors subject to the two-year home country residence requirement may seek a waiver of that requirement in four situations:
(1) upon request of an interested government agency;
(2) upon a showing of undue and unanticipated hardship to the exchange visitor’s family in the United States
(3) when the exchange visitor faces persecution in his or her home country; or
(4) when the exchange visitor’s home country declares that it does not object to the waiver. This is the so-called “no objection” statement.

The waiver may be filed using more than one of the situations above.

I. Request by a Government Agency
i. A US government agency must submit documentary evidence showing that the exchange visitor’s departure would be clearly detrimental to a program or activity of official interest to an agency of the US government.

ii. Broad and remote connection to the agency could qualify.
For example, if a J-1 exchange visitor is working at a research institute that receives National Science Foundation (NSF) money, the NSF should be considered.
If the J-1 exchange visitor is acting a consultant on a contract to expand trade to his or her homeland, the Dpt. of Commerce should be considered.

II. Exceptional Hardship
i. The elements to be considered:
1. Physical or mental conditions of the spouse or child that would be adversely affected by residence abroad
2. Need for the spouse to remain in the United States to continue employment essential to family maintenance or to care for a dependent relative
3. Applicant’s inability to support his or her family abroad or to support them in a separate household in the United States
4. Interruption of spouse (US citizen)’s established career
5. Serious economic consequences
6. Severance of close family relationship
7. Erroneous advice of a US consul or immigration officials, before marriage, that foreign residence requirement did not apply
8. A regime in the home country that is unfriendly to the United States
ii. These are not exclusive considerations, and each case is decided on its own merits.
iii. The assessment of hardship must be based on “a totality of the circumstances”.

III. Persecution in Home Country
i. The applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
ii. The persecutor is already aware, or could easily become aware, that the applicant possesses this belief or characteristic;
iii. The persecutor has the capability of punishing the individual; and
iv. The persecutor has the inclination to punish the applicant.

IV. No Objection Statement
i. The statement must be transmitted to the Dpt. of State through official channels; Statements not addressed to the Dpt. of State and statements transmitted by the exchange visitor or by his attorney or other private individuals or organizations will not be acceptable.
ii. In many instances, the country’s consular officers are given authority by their governments to issue such statements; in such cases, they must transmit the statement to the Dpt. of State, either through the US diplomatic mission in their country or through the country’s mission in Washington.
iii. In no objection cases as in other waiver requests, the Dpt. of State reviews the “program, policy, and foreign relations” of the case in deciding whether to recommend a waiver to the CIS.

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Cancellation of Removal Deportation Defense by Fresno Immigration Attorney Phillip Kim

January 11, 2010
Filed under: Cancellation Of Removal 

Cancellation of Removal by Immigration Attorney in Fresno

I. Aliens Eligible for Cancellation of Removal
You may be eligible to have your removal cancelled under
section 240A(b) of the Immigration and Nationality Act (INA). To qualify for this benefit, you must establish
in a hearing before an Immigration Judge that:

A. 1. Prior to the service of the Notice to Appear, you have maintained continuous physical presence in the United States for ten (10) years or more, and you have been a person of good moral character as defined in section 101(f) of the INA during such period;

2. You have not been convicted of an offense covered under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the INA; and

3. Your removal would result in exceptional and extremely unusual hardship to your United States citizen or lawful permanent resident spouse, parent, or child, and you are deserving of a favorable exercise of discretion on your application.
OR

B. 1. You have been battered or subjected to extreme cruelty in the United States by your United States
citizen or lawful permanent resident spouse or parent, or you are the parent of a child of a United
States citizen or lawful permanent resident and the child has been battered or subjected to extreme
cruelty in the United States by such citizen or lawful permanent resident parent;

2. Prior to the service of the Notice to Appear, you have maintained continuous physical presence
in the United States for three (3) years or more and you have been a person of good moral character
as defined in section 101(f) of the INA during such period;

3. You are not inadmissible under sections 212(a)(2) or 212(a)(3) of the INA, you are not deportable
under section 237(a)(1)(G) or sections 237(a)(2)-(4) of the INA, and you have not been convicted of
an aggravated felony as defined under the INA;

4. a. Your removal would result in extreme hardship to you or your child who is the child of a United
States citizen or lawful permanent resident; or

b. You are a child whose removal would result in extreme hardship to you or your parent; and

5. You are deserving of a favorable exercise of discretion on your application.

Note: If you have served on active duty in the Armed Forces of the United States for at least 24 months,
you do not have to meet the requirements of continuous physical presence in the United States.
You must, however, have been in the United States when you entered the Armed Forces. If you
are no longer in the Armed Forces, you must have been separated under honorable conditions.

II. Aliens NOT Eligible for Cancellation of Removal: You are not eligible for cancellation of removal under
section 240A(b)(1) of the INA if you:

A. Entered the United States as a crewman after June 30, 1964;
Form EOIR-42B
Revised October 2008
U.S. Department of Justice
Executive Office for Immigration Review
OMB#ll25-0001
Application for Cancellation of Removal and Adjustment
of Status for Certain Nonpermanent Residents

B. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in
section 101(a)(15)(J) of the INA in order to receive graduate medical education or training, regardless
of whether you are subject to or have fulfilled the 2-year foreign residence requirement of section
212(e) of the INA;

C. Were admitted to the United States as, or later became, a nonimmigrant exchange alien as defined in
section 101(a)(15)(J) of the INA, other than to receive graduate medical education or training, and are
subject to the 2-year foreign residence requirement of section 212(e) of the INA, but have neither fulfilled
nor obtained a waiver of that requirement;

D. Are an alien who is either inadmissible under section 212(a)(3) of the INA or deportable under
section 237(a)(4) of the INA;

E. Are an alien who ordered, incited, assisted, or otherwise participated in the persecution of an individual
because of the individual’s race, religion, nationality, membership in a particular social group, or
political opinion; or

F. Are an alien who was previously granted relief under section 212(c) of the INA, or section 244(a) of
the INA as such sections were in effect prior to the enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, whose removal has previously been cancelled under section
240A of the INA.

For more information, please contact Attorney Phillip Kim at (559) 761-9742

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