She then applied for a waiver of the home residency requirement on the ground that forcing her to return to Colombia would cause exceptional hardship to her US citizen spouse and child. The Vermont Service Center denied the application. On appeal, Mr. Hake argued that the exceptional hardship required for a waiver was essentially the same as the extreme hardship previously required in applications under the former suspension of deportation rules. The AAO found this to be by and large the case, keeping in mind the difference that in waiver cases the hardship must be to the US citizens involved, while in suspension cases the hardship to the applicant may be considered. The AAO reiterated that temporary separation, however unpleasant, is not sufficient to be exceptional hardship.
Hardship is to be determined from two perspectives.
First, the hardship the US citizen would face if he or she accompanied the J-1 visa holder. And second, the hardship must also cover what the US citizen spouse would face in the US without the J-1 visaholder. The AAO found that the citizen spouse would face exceptional hardship if forced to abandon his career and go to Colombia, where both he and the US citizen child would face a substantial risk of being the victims of violence. Also, he would face psychological difficulties worrying about the safety of his wife if she returned to Colombia without him. Based on this evidence, the AAO ordered the Vermont Service Center to request approval of the request for the waiver from the State Department.