Interim Decision *1959 

MATTER or Alum 

In Section 212 (e) Proceedings 

A-13871376 

Decided by Regional Commissioner April 11, 19139 

An exchange visitor's application for waiver of the foreign residence requirement of section 212(e) of the Immigration and Nationality Act, as 

amended, based primarily on the claim of exceptional hardship that would 

result to his two U.S. citizen children because of impair' ment of the mother's ability to care for them due to a skin infection, is denied since it has 

not been established that the mother's condition in .the past has impaired 

her ability to properly care for her children to the extent that it has 

caused or may be expected to cause them exceptional hardship: further, 

should there be a recurrence of the infection, medical treatment is available in the country to which she must depart. 

ON BEHALF or APPLICAI4121 Howard L. Kushner, Esquire 

730 Main Street 

Niagara Falls, New York 14301 

This matter is before the Regional Commissioner on appeal 

from the denial of the application for waiver of the two-year foreign residence requirement of section 212 (e) of the Immigration 

and Nationality Act, as amended, on the ground that exceptional 

hardship has not been established. 

The appellant, a married 31-year-old physician, is a native and 

citizen of India. He was admitted to the United States on August 

12, 1962 as an exchange visitor to participate in an exchange program at Francis Hospital, Poughkeepsie, New York, where he 

served a one-year rotating internship. He subsequently engaged 

in residency training in psychiatry at the Husdon River State 

Hospital, Poughkeepsie, New York from July 1963 until June 

1967. On July 27, 1967, the Department of State advised that 

there is no basis under the Exchange Visitor Program for grantbig the alien any additional extensions of stay. He is the beneficiary of an approved third preference visa petition filed on August 

17, 1967. 

The record further reflects that the appellant's wife was admit209 
Interim Decision #1959 

ted to the United States in 3-2 status on May 6, 1963. They 

had been married in India on June 18, 1962 and have two children, ages five and one-and-one-half, both born in the United 

States. The instant waiver request was filed December 26, 1967 

under the provisions of section 212 (e) of the Act which states, in 

pertinent part, as follows : 

• .. upon the favorable recommendation of the Secretary of State, pursuant 

to the request of an interested United States Government agency, or of the 

Commissioner of Immigration and Naturalization after he has determined 

that departure from the United States would impose exceptional hardship 

upon the alien's spouse or child (if such spouse or child is a citizen of the 

United States or a lawfully resident alien), the Attorney General may waive 

the requirement of such two-year foreign residence abroad in the case of any 

alien whose admission to the United States is found by the Attorney General 

to be in the public interest ... 

In the matter at hand, it has been alleged that compliance with 

the two-year foreign residence requirement would impose exceptional hardship on the applicant's two United States citizen children. It has been claimed that the appellant would be unable to 

obtain a position as a psychiatrist in India which would provide a 

salary sufficient to properly support his family; that the children 

would be subjected there to infectious diseases, poor nutrition, inadequate health facilities, and a generally lower standard of living; that the applicant's wife is afflicted with eczematized tinea 

which affects her ability to perform household duties and care for 

the children; that treatment for this condition is not readily 

available in India. 

In support of the instant application, evidence has been presented that the Government of India has no objection to the applicant's admission for permanent residence; that the children's 

health would be detrimentally affected by residence in India; that 

the wife's eczematized tinea of the hands—which is indigenous to 

India—is resistant to treatment, including superficial radiotherapy, and here return to that country would aggravate her case. At 

the request of this Service, a more detailed medical report was 

submitted relative to the wife's condition. Upon review of the 

medical evidence, the United States Publie Health Service advised 

that her superficial fungus infection should not contraindicate her 

return to India; that adequate treatment for this disease should 

be available in that country. The District Director denied the 

waiver application November 26, 1968 on the following grounds: 

The statute provides that a waiver on hardship grounds may be granted 

only if the exchange visitor has a United States citizen or lawful permanent 

resident spouse or child and compliance with the foreign residence requirement would impose exceptional hardship upon such spouse or child. Adjust210 
Interim Decision #1959 

went factors will usually be present if the spouse or child proceeds abroad 

to a country where the customs, language, and mode of living are strange. 

Similarly, in most cases an exchange alien newly returning abroad to 

comply with the foreign residence requirement will require a considerable 

length of time to reestablish himself there and begin earning an income which 

would enable him to adequately support himself and the members of his 

family. These factors must then. be considered the usual hardships which 

might be anticipated by the spouse and children of an exchange visitor who 

is required to comply with the foreign residence requirement. 

After very careful consideration, it has been determined that the factors 

of adjustment and economic hardship which you have set forth constitute the 

usual hardships which may be anticipated rather than the exceptional hardship contemplated by the statute. Furthermore, the medical documentation 

which you submitted fails to substantiate your claim that your wife will be 

unable to care for your children in India, Accordingly, your application is 

denied. 

On December 17, 1968, counsel submitted a motion to reopen 

and reconsider this matter. In connection therewith, it has been 

contended that the applicant's wife suffers from a medical eondition which is more than the usual type of fungus infection inasmuch as it does not respond to the usual treatment; that she requires X-ray therapy in order to alleviate her condition, the 

prolonged use of which may result in serious complications; that 

the recurring nature of the infection necessitates that she avoid, 

as much as possible, the environment in which she would be subjected to the infection; that if she returns to India and her condition worsens, the prospect of dangerous complications from the 

resultant treatment is so great, the children would be deprived of 

their mother's constant care and attention; that it is the treament for the infection, not merely the availability of such treatment, which creates exceptional hardship. There has been presented in support of the motion another statement from the 

wife's physician which reiterates the resistance of her case to 

treatment with fungicidal drugs, the satisfactory resulti obtained 

by X-ray therapy, the danger of recurrence of the condition in a 

subtropical climate, and the complications which could result 

from repeated X-ray treatments. A statement has also been 

furnished by another doctor which advises against X-ray therapy 

more often that every two or three years and then only minimum 

dosage, provided all other treatment is ineffectual. 

The District Director dismissed the motion to reopen and reconsider on January 28, 1969, concluding that the medical evidence presented therewith is essentially the same as the information previously evaluated by the United States Public Health 

Service. Attention was further called to the fact that the statute 

provides a hardship waiver may be granted only if compliance . 

211 
Interim Decision *1959 

with the foreign residence requirement would impose exceptional 

hardship upon a United States citizen or lawful resident spouse 

or child; that consideration has been given to the condition of the 

applicant's wife only because it was alleged it might hinder her 

ability to adequately care for her United States citizen children; 

that no evidence has been submitted which would show that her 

condition in the past has hindered her performance of household 

work or that recurrence of the skin condition could not be prevented with proper management. The District Director found it 

has not been established that the welfare of the applicant's 

"jnited States citizen children would be jeopardized by two years 

residence in India if they accompanied their parents to that country. On appeal from the dismissal of the motion, counsel has contended the following : 

The decision of the District Director is unreasonable, and unfair, since 

evidence has been submitted which would indicate that the medical condition 

of Mrs. Amin could not only severely incapacitate her ability to perform 

household work, and that recurrences of skin condition could not be prevented 

with proper management, but also continuous treatment of the disease would 

result in disability of Mrs. Amin, or fatal illness. Therefore, exceptional 

hardship has been established to the children of Dr_ Amin, should he be 

required to comply with the foreign residence requirement. District Director 

failed to consider and follow the opinion of the Deputy Associate Commissioner for Travel Control in the matter of Drs. Jose and Virginia DePerio, 

file numbers Ala 981 355 and A13 982 621, dated August 1, 1968. 

We have'very carefully reviewed the entire record and considered the applicability of the Deputy Associate Commissioner's 

decision in the above-cited case. It was found therein that some 

degree of hardship would be imposed upon all the applicants' children if they were to accompany their parents to the Philippines. 

However, the finding of exceptional hardship was predicated 

upon the physical condition of the one United States citizen child 

with a history of heart disorders and the adverse effect such foreign residence would have upon him. In the instant matter, we 

are confronted with a different situation. The hardship claim 

rests essentially on the medical condition of the appellant's J-2 

spouse. We agree with the District Director's conclusion that the 

record fails to satisfactorily establish that her skin infection has 

impaired her ability to properly tare for her children to the extent that it has caused or may be expected to cause them exceptional hardship. Although the recommended therapy for her condition may differ from that of other types of fungus infections 

and the possibility of recurrence may be somewhat greater in 

subtropic climates, the fact remains that X-ray treatment is 

available in India. The hazards inherent in such therapy, assum212 
Interim Decision #1959 

ing that there is a recurrence of the disease, apparently can be 

controlled by regulating the frequency of treatment. Under the 

circumstances, we do not find it has been satisfactorily established that two years foreign residence would impose exceptional 

hardship on the United States citizen children within the meaning of the statute. Accordingly, the decision of the District Director will be affirmed. 

It is ordered that the denial of the application for waiver of 

the two-year foreign residence requirement of section 212 (e) of 

the Immigration and Nationality Act, as amended, be and same is 

hereby affirmed. 

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