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Applying for a Travel Ban Waiver: Strategies

As of December 2017, Trump President Trump’s Travel Ban has been in effect. This ban has either limited or shut down travel to the United States by foreign nationals from Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

Over spring of 2018, the ban was challenged as unconstitutional. Nonetheless, it was allowed to remain enforced until it was ultimately upheld by the Supreme Court in July 2018. One of the key challenges posed against the rule was its ban of certain nationalities without regard to case status. The administration’s answer to this challenge was what it purported to be a “robust waiver process.” The assumed claim is that if there is a robust waiver process, then the proclamation is not a true ban and is only "additional vetting and scrutiny" for foreign nationals from the countries specified.

Initially, there were serious criticisms of the travel ban because of the extreme difficulty being reported by those seeking waivers. Upon first report, less than three percent of those who were applying for waivers had their cases approved. In the months since we published last about this, we and our partners have been able to obtain data from successful and unsuccessful applicants to create guidance for future cases.

Who needs waivers?

Iran

No immigrant visas and no nonimmigrant visas EXCEPT for F, M and J education visas.

Libya

No immigrant visas and no temporary business or tourist B1/B2 visas.

North Korea

No visas.

Somalia

No immigrant visas.

“Enhanced screening on nonimmigrants.”

Syria

No visas.

Venezuela

Select government officials and family members may not enter on tourist or business visas.

Yemen

No immigrant visas and no temporary business or tourist B1/B2 visas.

The above list contained restrictions against the republic of Chad as well, but these restrictions were lifted in April of 2018. The ban also has some built in exceptions. Most notably, it doesn’t apply to lawful permanent residents or those admitted or paroled into the United States after the effective date of September 24, 2017. It also does not apply to otherwise affected nationals if they are dual-citizens and are travelling on a passport of a non-affected country.

For a link to the proclamation, please click here.

Applying for a waiver:

The proclamation provides for simple criteria to be met in order to qualify for a waiver. Affected foreign nationals are eligible for waivers against the travel ban if they can demonstrate

  1. A denial of their entrance would cause them undue hardship;
  2. Their entry would be in the National Interest; and
  3. Their entry would not be a threat to the national security or public safety of the United States.

There is no formal process to apply for a waiver. Those seeking waivers must apply for a visa normally and indicate during a consular interview that there is sufficient evidence warranting a waiver and prepared to submit this evidence.

Strategies for Approval:

We have received some clarification on the meaning of these points. In regard to the “undue hardship” criterion. U.S. Senator Chris Van Hollen, the Department of State (DOS) said, “the applicant must demonstrate to the satisfaction of the consular officer that an unusual situation exists that compels immediate travel by the applicant and that delaying visa issuance and the associated travel plans would defeat the purpose of the travel.” It was later further clarified that severe conditions alone are not sufficient. There must be a specific and compelling reason the applicant must be admitted into the U.S. in a timely manner. Potential evidence could consist of proof of:

  1. Poor conditions at home, in particular DOS travel warnings;
  2. imminent travel booked and plans already in place;
  3. Immediate medical needs; or
  4. Impending economic hardship or violence.

For the “National Interest” criterion to be upheld, DOS has stated that “the applicant’s travel may be considered in the national interest if the applicant demonstrates to the consular officer’s satisfaction that a U.S. person or entity would suffer hardship if the applicant could not travel until after visa restrictions imposed with respect to nationals of that country are lifted.” Again, relying on an assumption that the travel ban is not permanent, DOS says that the standard for qualification on this criterion is that a U.S. entity or person cannot wait for the ban to be lifted for the foreign national to enter, or else the U.S. person or entity will face repercussions. It will thus be crucial to demonstrate time-sensitivity of the presence of the foreign national. Potential evidence could consist of proof of:

  1. Family unity with U.S. citizens or permanent residents.
  2. Academic achievement of the foreign national; or
  3. Economic dependence of U.S. persons or entities on the foreign national. This could be documents showing money transfers of crucial business dealings.

Lastly, in order to demonstrate the national security requirement, the foreign national must demonstrate the “information-sharing and identity-management protocols and practices of the government of the applicant’s country of nationality as they relate to the applicant,” indicate that the applicant is not a threat. Potential evidence could consist of proof of:

  1. Academic records of good standing;
  2. Continuous and progressive employment;
  3. Visas issued from other countries;
  4. Cooperation with U.S. intelligence-gathering or strategic interests; or
  5. Clearance by local police departments.

These above strategies have been shown to be supportive for foreign nationals affected by the ban. However, it is critical to obtain qualified legal representation to ensure the odds of approval are maximized. Contact us for a review of your case.

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