If you are physician seeking a ‘change of stay’ or ‘adjustment of status’ to permanent resident status in the United States of America, you may be subject to Section 212(e) of the INA, the Two-year Foreign Residency Requirement. Section 212(e) of the INA applies to physicians who receive clinical medical residency training in the U.S. pursuant to a J-1 exchange visitor visa and thus are required to return to their home country for two years before they are eligible to apply for an H-1B visa or permanent residency.
J-1 visa physicians need not complete this two-year home requirement if they are approved for a waiver based on demonstrating exceptional hardship to a U.S. citizen spouse and/or child. The 'hardship' waiver requires a persuasive showing that the American citizen or permanent resident spouse or child(ren) will suffer exceptional hardship if the spouse and/or child(ren) remain in the United States while the J-1 physician returns home for two years and will also suffer exceptional hardship if the spouse and/or child(ren) go home with the exchange visitor for two years.
The USIA (United States Information Agency) has provided the following possible factors for consideration of an exceptional hardship waiver; the Agency has emphasized that these factors have no particular weight or order.
a. Medical hardships including severe and life-threatening illnesses and conditions, or illnesses and conditions requiring regular care and/or medications not available in the physician's home country.
b. Country conditions for physicians from war-ravaged countries would have a stronger case in demonstrating extreme hardship to U.S. citizen children.
c. Social, Cultural and Education related hardships which would result from the physician's spouse and/or child relocating to a foreign country whose language they do not speak and whose culture is unknown to them.
d. Psychological hardships including the exacerbation of an existing disorder or the precipitation of the onset of a disorder, such as post traumatic stress disorder, or severe depression.
e. Economic hardship to the physician's spouse and/or child if the foreign residence requirement is enforced such as maintenance of two households, or severe decrease is salary due to economic conditions for such a profession in the home country.
f. Career Interruption or Destruction to the physician's spouse.
g. Political and religious hardship, including fear of violence and oppression based on political views, race, ethnicity, or gender or sexual preference.
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If you are looking for an experienced immigration attorney, need H-1B visa information, Green Card information, or help with a permanent residence application, call us to discuss your case at 724-940-5901, or contact us online. We will respond as soon as possible.
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