MATTER OF M-S-M-A-

Non-Precedent Decision of the · Administrative Appeals Office

DATE: DEC.31,2018

APPEAL OF CALIFORNIA SERVICE CENTER DECISION

APPLICATION: FORM- 1-612, APPLICATION FOR WAIVER OF THE FOREIGN RESIDENCE REQUIREMENT (UNDER SECTION 2 l 2(E) OF THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED) '

The Applicant, a native and citizen of Egypt and J- I nonimmigrant exchange visitor, seeks a waiver of the two-year foreign residence requirement. Immigration and Nationality Act (the Act) section 212(e), 8U.S.C.§1182(e). Certain J-1 or J-2 exchange visitors may receive a waiver from the requirement to reside and be physically present in the country of their citizenship or nationality or last foreign residence for at least two years following departure from the United States before applying for an immigrant visa, lawful permanent resident status, or H or L nonimmigrant status. The waiver is available if departure would result in exceptional hardship to an exchange visitor's U.S. citizen or lawful permanent resident spouse or children or if an exchange visitor cannot return to the country of nationality or last residence because he or she would be subject to persecution on account of race, religion, or political opinion.

The Director of the California Service Center denied the application, concluding that the record did not establish, as required, that the Applicant's compliance with the two-year foreign· residence requirement wo1;1ld result in exceptional hardship to a qualifying relative.

On appeal, the Applicant submits additional evidence and asserts that his U.S. citizen children would experience exceptional hardship if his waiver application is denied.

Upon de nova review, we will withdraw the Director's decision and remand the matter to the Director to request a section 2 l 2(e) waiver recommendation from the Director, U.S. Department of State (DOS), Waiver Review [?ivision (WRD).

I. LAW

No foreign national admitted under section 10l(a)(15)(J) of'the· Act, 8 U.S.C. § I t0l(a)(IS)(J), who came to the United States or acquired such status in order to receive graduate medical education or training shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101 (a)(I S)(H) or section 101(a)(l 5)(L) of the Act until_ it is established that the foreign national has resided and been physically present in the country of ~is or

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her nationality or last residence for an aggregate of at least two years following departure from the United States. Section 212(e) of the Act, 8 U.S.C. § 1182(e). 1

The statute provides for waiver of this requirement, however, in the public interest upon the favorable recommendation of U.S. Citizenship and .Immigration Services (USCIS), atler USCIS has · determined that departure from the United States would impose exceptional hardship upon· the foreign national's ~.J.S. citizen or lawful permanent resident (LPR) spouse or child, or that the foreign national cannot return to the country of his nationality or last residence because he would be subject to persecution on· account of race, religion, or political opinion. Id.

In determining the merits of an application for a waiver of the two-year foreign residence requirement based on exceptional hardship, "it. must first be determined whether or not such hardship would occur as the consequence of ... accompanying the [foreign national] abroad, which would be the normal course of action to avoid separation." Malter of Mansour, I I I&N Dec. 306, 307 (BIA 1965). In addition, "even though it is established that the requisite hardship would occur abroad, it must also be shown that the spouse would suffer as the result of having to remain in the United States ... [because] [t]emporary separation, even though abnormal, is a problem many families face in life and, in and of itself, does not represent exceptional hardship as contemplated by section 212( e ) .... " Id.

In general, we do not apply leniency "in the adjudic~tion of waivers including cases where marriage occurring in the United States, or the birth of a child or children, is used to support the contention .that the exchange alien's departure from his. country would cause personal hardship." Keh Tong Chen v. Allorney General <~{the United States. 546 F. Supp. 1060, 1064 (D.D.C. 1982) (quotations and citations omitted). Further, we "[effectuate] Congressional intent by declining to find

· exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a two-year sojourn abroad." Id.

II. ANALYSIS

The record establishes that the Applicant is subject to the two-year foreign residence requirement under section 212(e) of the Act because he acquired his J-1 status in order to received graduate medical education or training. As stated above, the Applicant is seeking a waiver of the two-year foreign residence requirement based on the claim that his U.S. citizen ~hildren would suffer exceptional hardship if they moved to Egypt temporarily with the Applicant and, in the alternative, if they remained in the United States while the Applicant fulfilled the two-year foreign- residence requirement in Egypt.

With his appeal, the Applicant submits letters from physicians in the United States and Egypt, a letter and salary documentation from an associate in Egypt, and information about private schools in Egypt. The record also includes passports, birth certificates, and other identity documents; medical records; articles about conditions in Egypt; photographs; tax, employment, and financial records; statements from the Applicant, his relatives, and his friends;· and immigration applications, forms, and related correspondence.

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Matter of M-S-M-A-

After reviewing the entire. record, we find that the additional documents establish that the Applicant's child would experience exception~! hardship if he complies with the two-year foreign residence requirement.

. . In adjudicating the Applicant's request for a hardship waiver, we first look to see if the Applicant has established that his U.S. citizen children would experience exceptional hardship if they resided in Egypt for two years with the Applicant. The Applicant states that his children would face medical, physical, and educational hardships due to the poor conditions in Egypt. He reiterates, as he stated to the Director, that his youngest daughter-born in 20 I 7-has asthma and a nevus, or mole, that require treatment and monitoring by specialists that are not available in Egypt. The letters from the doctors, including the daughter's treating physicians, agree that travel to Egypt is inadvisable for her due to 'the likely exacerbation of her asthma and respiratory sensitivities by the polluted Egyptian air _and frequent sandstorms.

In addition to the medical records previously submitted, the Applicant now provides letters from physicians in the United States and in Egypt who explain the risks to the Applicant's daughter due to the significant shortage of asthma medications in Egypt. The letter from the U.S.-based physician states that Egypt has very few specialists who can monitor the daughter's nevus, and that the nevus will eventually require a high-risk surgical procedure for which no specialized surgeons are available. The Egyptian physician corroborates these statements, explaining that nebulizers, steroids, and inhalers are often unavailable, leading to the worsening of his patients' conditions. He also affirms that the daughter's nevus will most likely require surgery and pathological analysis, but the precise surgery is not available in Egypt, and if a surgeon in Egypt attempted the procedure, the complications could result in infection or even amputation. He adds that the location of the nevus (on the child's knee) and her young age pose further challenges for both the surgery and her recovery, and physical rehabilitation services are significantly below U.S . standards.

These new letters specifically corroborate the Applicant's claim that his daughter's medical needs would go unmet in Egypt and that the conditions and shm1age of medications and specialists places her at risk of significant adverse, and potentially debilitating, physical difficulties. Accordingly, the new evidence overcomes the Director's ·finding that the Applicant had not established the claimed hardship to his daughter's health.

The Director also found that 'the evidence did not establish the claimed financial hardship, in part due to the lack of evidence regarding the spouse's employment prospects. On appeal, the Applicant submits a letter from a former colleague of his spouse, who is now a senior quality assurance engineer. She. describes her professional experience and salary (approximately $333 a month) and states that the Applicant's spouse would face difficulty finding employment in her field in Egypt after a five-year gap in her employment. She also states that, if the spouse did find work as a junior quality assurance engineer, her salary would not exceed $ I 38 monthly. The colleague describes enrolling her own two children in private school due to the dangerous conditions at public schools in Egypt, and she states that the school's tuition is $2222 per year (approximately $ 185 per month),

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while the day care tuition is $166 per month. The colleague explains that her family can afford these tuition costs because of her spouse's income as a business owner. The Applicant also submits information from private schools in Egypt reflecting substantially higher tuition rates. With the previously submitted evidence of poor and even dangerous conditions in Egyptian schools and low salaries for physicians at Egyptian public hospitals, the evidence now reflects the probability that the Applicant's daughters will face significantly reduced standards ofliving and education opportunities.

Thus, the record establishes that the Applicant's U.S. citizen daughter would face substantial medical hardship in Egypt.. Viewed cumulatively with the other financial and educational hardships, as well as the increased risk of crime or terrorism reported by the U.S. Department of State, the record establishes that the Applicant's child would experience exceptional hardship if she relocated to Egypt with the Applicant for a two-year period.

We now turn to the question of whether the Applicant has established that his children would experience exceptional hardship if they remained in the United States during the two-year period that the Applicant resides in Egypt. Both the Applicant and his spouse are nonimmigrant exchange visitors; accordingly, both would have to return to Egypt to fulfili the two-year foreign residence requirement. The Applicant's oldest child is five years old, and the youngest child is less than two years old. Thus, we agree with the Director that remaining in the United States, at their young age, without a parent would constitute exceptional hardship.

Ill. CONCLUSION

The Applicant has established that his qualifying relatives would experience exceptional hardship, were the)'. to relocate to Egypt or remain in the United States without the Applicant, for the requisite two-year term. ·

ORDER: The matter is remanded to the Director of the California Service Center· to request a section 212(e) waiver recommendation from the Director of the U.S. Department of State, Waiver Review Division.

c;ite as Matter ofM-S-M-A-, ID# 1775466 (AAO Dec. 31, 2018)

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