Behind the “Waiver” Camouflage, A Closed Door Policy for Travel Ban Countries
On December 8, 2017, the preliminary injunction on Presidential Proclamation 9645 (commonly known as Travel Ban 3.0) was completely lifted and Travel Ban 3.0 took full effect. The only glimmer of hope for practitioners and clients alike from the affected countries was the description of a possible waiver remedy for certain banned visa applicants from Yemen, Iran, Libya, Chad, Somalia, Syria, North Korea and Venezuela enumerated in Section 3(c) of the Proclamation.
For the last three months, practitioners like myself, who work mainly with affected nationals from Muslim-majority countries, have tried to make sense of the section 3(c) waiver, and provide counsel to thousands of affected individuals and their families. Much effort and cost has gone into navigating the waiver request process for individuals and practitioners. At our offices, Pars Equality Center, a nonprofit organization serving Iranians and other Middle Eastern groups with social and immigration legal services, we have had hundreds of individuals contact us to find out when and how to file a waiver request for their family members at various stages of the process: some in administrative processing, some taken out of administrative processing and put into a “waiver review,” some found to be ineligible for a visa under INA section 212(f) after a visa interview, and some who were preparing for a visa interview or filing documents with the National Visa Center.
The waiver process is clear as mud – the Proclamation itself states that “the Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate.” However, guidance has not been issued, at least not publicly, and practitioners only had the three points listed in the Proclamation to work with. To be eligible for a waiver, one would need to show that: 1) denying entry would cause the foreign national undue hardship; 2) entry would not pose a threat to the national security or public safety of the United States; and 3) entry would be in the National Interest. Section 3(c)(iv) of the Proclamation states several examples where a grant of a waiver under 3(c) may be appropriate, which has given many practitioners (false) hope that a waiver grant in their particular cases is possible.
After months and a flurry of waiver submissions, on March 6, 2018, Reuters released data showing that waivers have rarely been granted. The data shows that from December 8, 2017 till March 6, 2018, only around 100 waivers have been granted under the proclamation, out of more than 8,400 visa applications. The number of waivers actually granted has not yet been confirmed by the Department of State (DOS), and we actually expect those numbers will be fewer than Reuters’ initial reported data.
At Pars Equality Center, we are collecting a myriad of reports on how the waiver process is being implemented by consular posts overseas. We have received reports of waiver requests being refused at visa interviews and of individuals being forced to state their requests orally, reports of no opportunities being given to submit waivers at any stage of the process, and in some cases, false assurances being made to some individuals that their cases were moving forward and would be processed soon which were later put into further “administrative processing.” All affected cases we have seen at Pars Equality Center were denied a clear and fair opportunity to submit a waiver request under the Proclamation. It was only through our proactive legal actions that we have been able to even advocate for our clients and their families and to create a record that we hope will serve them in the near future.
We have seen individuals who are at risk of losing their liberties and life in their home countries waiting to immigrate to the U.S. and live in freedom, families facing medical hardships, siblings of U.S. citizens who have waited over 14 years on the verge of a visa grant, and the simple but very noteworthy hardship of not being able to immigrate to the U.S. to be reunited with one’s spouse, child, and close family. It has been extremely discouraging knowing that this legal remedy has been useless for the many individuals who have attempted to access it and who within the Proclamation have a right to it. In a recent letter sent by DOS to Senator Van Hollen, DOS clearly states that the only guidance DOS currently has is drawn from the Proclamation itself, indicating that “The Department’s worldwide guidance to consular officers regarding waivers is drawn directly from the Proclamation.” The data released by Reuters clearly shows that the majority of individuals who may be eligible for a waiver have been denied one, and in fact, have not been able to properly submit a waiver request that is supposedly afforded to them pursuant to the very terms of the Proclamation.
This is unacceptable. Instead of making America safer, this policy is hurting our nation. We will not give up our efforts to obtain justice for our many affected clients and their families.
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AILA members seeking more information can access a practice pointer on the waiver provided by the AILA Middle Eastern Interest Group.