Immigration Attorneys Who Are Distinguished

The Missing Waivers

In June of 2018, the United States Supreme Court ruled in favor of President Trump’s “Travel Ban 3.0,” which was implemented via presidential proclamation. The ban levied certain degrees of restriction on citizens of Chad, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. (Refer to https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html for a full list of restrictions).

The President’s previous two travel bans did not survive court challenges. Part of why this travel ban survived where the others failed, was because the administration claimed it is not a true ban since it includes a waiver process that allows for individuals to receive case-base-case review on whether to exclude them from the country. This process appears on the surface like it can provide relief for many.

For applicants to be eligible for the waiver, they must demonstrate that:

  1. Denial of 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.

Barring an extremely exclusive reading of “National Interest,” the criteria should not be difficult to meet for many applicants. However, the actual issuance of waivers in practice has painted a different picture. There has been little to no formal guidance as to the process of submitting a waiver request, and there appears to be much inconsistency in how the process is being implemented by U.S. Embassies and Consulates overseas. 

The Department of State (DOS) has stated that there is no separate application for a waiver. The process by which a waiver is sought is indirect and/or implied: affected foreign nationals are simply instructed to apply for the appropriate visa given their situations and disclose information sufficient to satisfy one of the criteria in the application, petition, or interview.

As straightforward as this may seem, in practice, there have been very few cases of this process leading to an approval, with over 98% of cases being rejected. Given the general nature of the grounds for a waiver, the percentage of applicants being approved appear to be much lower than they should be under a good-faith review. The PARS Equality Center, which works to empower the Persian American community, along with other groups, is suing the government to both further implement the waiver process and be transparent in its review of waiver requests. The challenge being faced by those seeking waivers is exacerbated by the lack of feedback or guidance from the government. This disempowers those seeking relief from the travel ban and throws their cases, and often entire lives or livelihoods, into chaos.

If you are affected by the travel ban and are experiencing hardship as a result, it is important that you obtain experienced legal support. Our firm has over 25 years of experience navigating difficult immigration circumstances such as this and will explore every possible avenue to reach ultimate approval. Contact us today to see how we can help you overcome legal obstacles to returning home or coming to the United States.

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