What examples has the Department of State (DOS) provided of program and policy considerations other than program funding that might lead to an unfavorable J-1 waiver recommendation, despite a favorable recommendation from USCIS?
The exceptional hardship waiver is a three-step process. The applicant must first submit an I-612, Application for Waiver of the Foreign Residence Requirement, directly to USCIS. If USCIS determines that there is a possibility that the applicant’s U.S. citizen or legal permanent resident spouse or child may experience hardship if the applicant returns to the home country to fulfill the two-year home residence requirement, USCIS forwards the application to the State Department for a waiver recommendation. In accordance with guidance in 22 CFR 41.63(b)(3)(ii), the Department’s role is to review the program, policy, and foreign relations considerations in the case and make a recommendation to USCIS, which has the final waiver authority in 212(e) cases.
Each waiver application is reviewed on a case-by-case basis and weighed on its individual merits. All relevant factors in the case are considered in the review process. The State Department policies or standards followed in reviewing a waiver application are to weigh the program, policy, and foreign relations considerations in the case. These factors apply across the board in waiver cases. The Department does not comment on the program, policy, and foreign relations considerations relevant to specific waiver cases. The courts have consistently supported DOS’s position on disclosure of analysis in these cases.