Exceptional Hardship or No Objection Statement? Which one is better?

[June 29 0]

Hey Visajourney fellows!

I just realized that I have to apply for a waiver of the Exchange Visitor 2 Year Home-Country Physical Presence Requirement.

My problem is that my husband is doing a seasonal job right now. So, we are only staying in this town for the summer and we are going to move in 5 months. I was hoping to apply for both I-130 and I-485 this week and get my green card before we move. Now that I found out about having to apply for a waiver I need your insight on which one of the two: Exceptional Hardship or No Objection Statement is faster and better? And what exactly qualifies as exceptional hardship? I have a 5 months old daughter. Can the fact that I am breastfeeding be considered as a hardship for her? As for No Objection Statement, I am not sure my government will be very happy to give me that. I haven't contacted my embassy yet, but I am going to first thing in the morning.

Any help will be greatly appreciated!

[Little_My 464]

I don't have personal experience with extreme hardship waivers, but according to my understanding you not only have to prove why you having to go back home would cause extreme hardship to your USC spouse and child, but also show why it is impossible for them to move to your home country with you. There is also a stress on the word "Extreme" - you have to be able to prove how, in your particular case, the hardship caused to your USC spouse and child would be extreme and worse than hardship caused to another family under similar circumstances. If your home country is particularly unstable, that might be one reason - but if I am not mistaken, Turkmenistan is not. If you could show that your child's normal everyday life, development, health and/or education would be disrupted by his/her relocation to your home country, that could also be a way to prove extreme hardship - but your child is an infant baby, so this won't really work in your case either. Your baby's routines and life would not be interrupted or negatively affected by a move. If you could somehow prove that she couldn't have access to quality health care, day care etc. in your home country, that might be a part of your Extreme Hardship, but I doubt it would be enough by itself. Also, since Turkmenistan is classified as a lower middle income country, you can't really argue that your life there would be deprived of necessary services and benefits, though the overall quality and availability of those services might be lower or more scarce than in the US.

What also makes it challenging for you is that in your case, we are talking about 2 years in your home country (or less, if you have already spent time there since your J1), which is not a very long time in the eyes of USCIS.

Here is an interesting and very detailed article regarding J1 hardship waivers that could be useful to you: http://www.ilw.com/articles/2007,0906-hake.shtm

Personally, I would explore the No Objection Statement first - if that doesn't seem to be possible, then look into the Extreme Hardship Waiver.

Edited May 21, 2012 by Little_My

[June 29 0]

I don't have personal experience with extreme hardship waivers, but according to my understanding you not only have to prove why you having to go back home would cause extreme hardship to your USC spouse and child, but also show why it is impossible for them to move to your home country with you. There is also a stress on the word "Extreme" - you have to be able to prove how, in your particular case, the hardship caused to your USC spouse and child would be extreme and worse than hardship caused to another family under similar circumstances. If your home country is particularly unstable, that might be one reason - but if I am not mistaken, Turkmenistan is not. If you could show that your child's normal everyday life, development, health and/or education would be disrupted by his/her relocation to your home country, that could also be a way to prove extreme hardship - but your child is an infant baby, so this won't really work in your case either. Your baby's routines and life would not be interrupted or negatively affected by a move. If you could somehow prove that she couldn't have access to quality health care, day care etc. in your home country, that might be a part of your Extreme Hardship, but I doubt it would be enough by itself. Also, since Turkmenistan is classified as a lower middle income country, you can't really argue that your life there would be deprived of necessary services and benefits, though the overall quality and availability of those services might be lower or more scarce than in the US.

What also makes it challenging for you is that in your case, we are talking about 2 years in your home country (or less, if you have already spent time there since your J1), which is not a very long time in the eyes of USCIS.

Here is an interesting and very detailed article regarding J1 hardship waivers that could be useful to you: http://www.ilw.com/articles/2007,0906-hake.shtm

Personally, I would explore the No Objection Statement first - if that doesn't seem to be possible, then look into the Extreme Hardship Waiver.

I was just reading that article before I saw your post. It looks like a waiver based on Exceptional Hardship is very hard to obtain. OMG, I can't believe I might have to go back home. And, if I do, then I will banned from the US for several years! It looks like I need a lawyer in case the No Objection Statement doesn't work out... Wow

[NataliaChicago 0]

I was just reading that article before I saw your post. It looks like a waiver based on Exceptional Hardship is very hard to obtain. OMG, I can't believe I might have to go back home. And, if I do, then I will banned from the US for several years! It looks like I need a lawyer in case the No Objection Statement doesn't work out... Wow

I think I just replied to your other post regarding 2HRR.

Exceptional Hardship is indeed very difficult to prove. I personally know of people who spent tons of money on lawyers, had children and still got denied. So I would look into the No Objection waiver. Again, you need to figure out who should issue it in this case. Another thing to keep in mind that waivers processing time take a while, so maybe it would be easier for you to go back and finish your 2HRR. I know it sucks! Good luck!

[grrrrreat 109]

Hey Visajourney fellows!

I just realized that I have to apply for a waiver of the Exchange Visitor 2 Year Home-Country Physical Presence Requirement.

My problem is that my husband is doing a seasonal job right now. So, we are only staying in this town for the summer and we are going to move in 5 months. I was hoping to apply for both I-130 and I-485 this week and get my green card before we move. Now that I found out about having to apply for a waiver I need your insight on which one of the two: Exceptional Hardship or No Objection Statement is faster and better? And what exactly qualifies as exceptional hardship? I have a 5 months old daughter. Can the fact that I am breastfeeding be considered as a hardship for her? As for No Objection Statement, I am not sure my government will be very happy to give me that. I haven't contacted my embassy yet, but I am going to first thing in the morning.

Any help will be greatly appreciated!

If you can get one, a No Objection Statement is as close to an automatic waiver as you're going to get. Exceptional Hardship is a fact-based investigation within the discretion of the adjudicating officer, and with limited rights of review or reconsideration. Start with trying to get the Statement.

You are not going to be able to file I-130 and I-485 until you get the waiver.

Edited May 22, 2012 by grrrrreat

[NancyNguyen 1,657]

If your J1 was on your own, not your government then no objection waiver is not gonna be issued by them. Sorry but there is no way to go around HHR until you finish it.

[grrrrreat 109]

I don't have personal experience with extreme hardship waivers, but according to my understanding you not only have to prove why you having to go back home would cause extreme hardship to your USC spouse and child, but also show why it is impossible for them to move to your home country with you. There is also a stress on the word "Extreme" - you have to be able to prove how, in your particular case, the hardship caused to your USC spouse and child would be extreme and worse than hardship caused to another family under similar circumstances. If your home country is particularly unstable, that might be one reason - but if I am not mistaken, Turkmenistan is not. If you could show that your child's normal everyday life, development, health and/or education would be disrupted by his/her relocation to your home country, that could also be a way to prove extreme hardship - but your child is an infant baby, so this won't really work in your case either. Your baby's routines and life would not be interrupted or negatively affected by a move. If you could somehow prove that she couldn't have access to quality health care, day care etc. in your home country, that might be a part of your Extreme Hardship, but I doubt it would be enough by itself. Also, since Turkmenistan is classified as a lower middle income country, you can't really argue that your life there would be deprived of necessary services and benefits, though the overall quality and availability of those services might be lower or more scarce than in the US.

What also makes it challenging for you is that in your case, we are talking about 2 years in your home country (or less, if you have already spent time there since your J1), which is not a very long time in the eyes of USCIS.

Here is an interesting and very detailed article regarding J1 hardship waivers that could be useful to you: http://www.ilw.com/articles/2007,0906-hake.shtm

Personally, I would explore the No Objection Statement first - if that doesn't seem to be possible, then look into the Extreme Hardship Waiver.

This is a small quibble, but in the J-1 context the waiver is called Exceptional Hardship, not Extreme Hardship. This is important because it's distinguished from other waivers requiring you to prove Extreme Hardship, such as waiver of overstay bans. It's still a high standard, as you point out, but perhaps not as high as those other waivers.

[Sgt. McGee 27]

If your J1 was on your own, not your government then no objection waiver is not gonna be issued by them. Sorry but there is no way to go around HHR until you finish it.

I'm not sure about this...

Based on the research I was doing (when we weren't even sure if my wife would be subject to the HRR, since she didn't have her original passport anymore), the HRR mostly applies to people who are in government-sponsored programs, or whose skills are listed on the skills list for their home country (listed here: http://travel.state.gov/visa/temp/types/types_4514.html). I don't see Turkmenistan listed on the skills list, which is a good sign. If, as you say, the OP's visa/original program to come to the US was paid for by non-government means, it is probably a positive sign.

I'd say that the No Objection statement is not a lost cause, and there may be a good chance of not having to fulfill the 2-year HRR, but then again, I'm not a lawyer, etc.

Edited May 22, 2012 by Sgt. McGee

[grrrrreat 109]

I'm not sure about this...

Based on the research I was doing (when we weren't even sure if my wife would be subject to the HRR, since she didn't have her original passport anymore), the HRR mostly applies to people who are in government-sponsored programs, or whose skills are listed on the skills list for their home country (listed here: http://travel.state.gov/visa/temp/types/types_4514.html). I don't see Turkmenistan listed on the skills list, which is a good sign. If, as you say, the OP's visa/original program to come to the US was paid for by non-government means, it is probably a positive sign.

I'd say that the No Objection statement is not a lost cause, and there may be a good chance of not having to fulfill the 2-year HRR, but then again, I'm not a lawyer, etc.

You're right--first step is to determine if you are subject to the HRR, which should not be hard because it is shown on the face of your visa documents. Second step is to determine what program you used to qualify for the J-1 in the first place, which can help you determine which part of your home government should be issuing the No Objection Statement.

I am always very surprised when people (1) somehow don't realize they are subject to the HRR, and (2) can't explain under which program they qualified for the J-1.

[Sgt. McGee 27]

I am always very surprised when people (1) somehow don't realize they are subject to the HRR, and (2) can't explain under which program they qualified for the J-1.

Not to hijack, but in our case, since my wife had been here for so long (and had replaced an expired passport with a new one, which didn't have her visa in it, since that had long since expired as well), we had to prove definitively that she was not subject to the HRR. That's a little different than not knowing that you're subject. She knew she wasn't subject, but couldn't find paperwork to prove it, and the IAP-66 didn't have either box checked thanks to the carbon copy not being properly aligned (the check was floating between the box for "is subject" and "is not subject" - not very helpful!).

So, knowing of other ways to determine whether the requirement applies can be helpful!

[grrrrreat 109]

Not to hijack, but in our case, since my wife had been here for so long (and had replaced an expired passport with a new one, which didn't have her visa in it, since that had long since expired as well), we had to prove definitively that she was not subject to the HRR. That's a little different than not knowing that you're subject. She knew she wasn't subject, but couldn't find paperwork to prove it, and the IAP-66 didn't have either box checked thanks to the carbon copy not being properly aligned (the check was floating between the box for "is subject" and "is not subject" - not very helpful!).

So, knowing of other ways to determine whether the requirement applies can be helpful!

Fair enough, I agree not having the right records makes things more difficult. How did you prove she was not subject to the HRR?

[Sgt. McGee 27]

Fair enough, I agree not having the right records makes things more difficult. How did you prove she was not subject to the HRR?

I wrote a brief explanation of our understanding of the situation (why we didn't have the original visa/passport), including the fact that the sponsoring agency (some outfit based in Utah, I don't have the info handy) did not have any of her paperwork. I also got a written statement from the au pair agency that stated that au pairs in their program were entirely sponsored by the host family (and not by the au pair's home government), as this is a key element in the HRR. Just to be safe, I also included a reference to the skills list and the fact that her home country (Czech Republic) was not on the skills list at all.

Between those factors (no government sponsorship, not on the skills list), and the barely-legible copy of the IAP-66 which didn't clearly show either way that she was subject to the HRR, there were no issues. It didn't even come up in the interview...

[June 29 0]

My update:

I am seeking No Objection Statement from the embassy of Turkmenistan. The counsel seems very nice and he told me to send my autobiography (with dates of my travels) and copies of all the pages of my passport and DS-3035.

The problem is I find some questions on DS-3035 very confusing! Plz, if you could help me with this I would really appreciate it! These are the questions:

1. Question 13: Is there any period of time in the US that is not covered by your form DS 2019/formerly IAP-66?

I have no idea what this question is asking me?

2. What is a port of entry?

3. When I send my packet to the Department of State, can I send the fee later? When I know that my government has sent the No Objection Statement? How does it work?

[grrrrreat 109]

My update:

I am seeking No Objection Statement from the embassy of Turkmenistan. The counsel seems very nice and he told me to send my autobiography (with dates of my travels) and copies of all the pages of my passport and DS-3035.

The problem is I find some questions on DS-3035 very confusing! Plz, if you could help me with this I would really appreciate it! These are the questions:

1. Question 13: Is there any period of time in the US that is not covered by your form DS 2019/formerly IAP-66?

I have no idea what this question is asking me?

2. What is a port of entry?

3. When I send my packet to the Department of State, can I send the fee later? When I know that my government has sent the No Objection Statement? How does it work?

1. DS-2019 is a certificate you get before you apply for the J-1 visa. It's a certificate saying that you are eligible to apply for a J-1. It is issued by your program or sponsor. The question is asking you whether you've spent any time in the U.S. other than in your J-1 status.

2. Port of entry is the location where you entered the U.S. If you flew in, it's the name of the airport where you landed (the first U.S. airport if you had a connecting flight).

3. No, I don't think you can send the fee separately from the packet. Most likely they will return the packet to you without processing. I think the process is that you submit DS-3035 with the fee and are assigned a case. Then you submit the supporting documentation (such as the No Objection Statement) after you have the case number. I realize they do it online now so I am not exactly sure how it works. I think most people obtain approval of the No Objection statement from their home country before they submit the form and pay the fee.

[June 29 0]

1. DS-2019 is a certificate you get before you apply for the J-1 visa. It's a certificate saying that you are eligible to apply for a J-1. It is issued by your program or sponsor. The question is asking you whether you've spent any time in the U.S. other than in your J-1 status.

2. Port of entry is the location where you entered the U.S. If you flew in, it's the name of the airport where you landed (the first U.S. airport if you had a connecting flight).

3. No, I don't think you can send the fee separately from the packet. Most likely they will return the packet to you without processing. I think the process is that you submit DS-3035 with the fee and are assigned a case. Then you submit the supporting documentation (such as the No Objection Statement) after you have the case number. I realize they do it online now so I am not exactly sure how it works. I think most people obtain approval of the No Objection statement from their home country before they submit the form and pay the fee.

Thank you! If I was in the USA with work and travel, and a visitors visa is that what I put for question 13?