On December 4, 2017, the Supreme Court allowed the third version of the Trump administration’s travel ban to go into effect while letting other legal challenges against it to continue. The Supreme Court had dismissed challenges over the second version after the third version was introduced by the government. In its order, the Supreme Court allowed the government to fully enforce the travel ban.
In light of the recent Supreme Court order, people from Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea are barred from entering the United States, along with some from Venezuela. However, the restrictions vary in their details. For example, Iranian citizens are still able to apply for F, M, and J nonimmigrant visas that would allow them to come to the United States and pursue higher education or as a part of student exchange programs. But even for these applicants, enhanced screening measures will significantly increase their waiting time.
The Supreme Court’s order closed the narrow window that was still open for people who have a credible claim of a bona fide relationship with a person or entity in the United States. This means that the Executive Order’s prohibition on entry into the United States is even applied to individuals who have bona fide connections to the United States.
The Supreme Court’s order was not a determination on the merits of the cases or the constitutionality of the Executive Order. It just authorized the full enforcement of the order while lower courts hear the merits of the constitutional challenges. The Ninth Circuit Court of Appeals heard oral arguments on December 6, 2017 and the Fourth Circuit held a hearing on December 8, 2017. On December 22, 2017 the Ninth Circuit held that visa applicants with bona fide relationships with American individuals and entities should be exempted from the travel ban. A decision is expected by the Fourth Circuit within the next few weeks. However, the government did not wait for the Fourth Circuit's decision to elevate the fight to the Supreme Court for a final determination of the travel ban’s constitutionality. On January 19, 2018, the Supreme Court granted the government's motion for writ of certiorari. Therefore, the Supreme Court will have the last word on the travel ban. The Court is expected to hear the oral arguments in April with a decision expected in June.
People with a valid visa that has already been issued will be permitted to enter the United States. However, if an applicant’s visa application has been approved but a visa has not been printed in their passports, the consular posts will not print it absent the granting of a waiver.
People from the banned countries who are dual nationals of a non-banned country are not subject to the third travel ban as long as they travel with the passport issued by the non-banned country. The travel ban does not apply to LPRs, foreign nationals admitted or paroled into the United States on or after the ban’s effective date, foreign nationals with travel documents – such as a transportation letter, boarding document, or advanced parole – valid on or after the ban’s effective date, or foreign nationals on diplomatic or diplomatic-type visas.
Individuals who have already been granted asylum or refugee status and been admitted into the United States are also exempt. Asylee derivatives following-to-join principals are not impacted by the ban.
The travel ban authorizes U.S. consular officers to grant a waiver on a case-by-case basis when an applicant demonstrates that:
- Denying entry would cause undue hardship
- Entry of the applicant would not pose a threat to national security, and
- Issuance of the visa is in the national interest.
The Executive Order states that a waiver may be appropriate in the following circumstances if the applicant:
- Has previously been admitted to the United States for a continuous period of long-term activity, is outside the United States on the effective date of the proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity
- Has previously established significant contacts with the United States but is outside the United States on the effective date of the ban for work, study, or other lawful activity
- Seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations
- Seeks to enter the United States to visit or reside with a close family member who is a United States citizen, lawful permanent resident (LPR), or alien lawfully admitted on a valid non-immigrant visa, and the denial of entry would cause undue hardship
- Is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case
- Has been employed by, or on behalf of, the United States government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States government, or
- Is traveling as a United States government-sponsored exchange visitor.
Obtaining a waiver seems to be extremely difficult, if not impossible. CLINIC has been tracking the cases for applicants from the banned countries who have had interviews after December 8, 2017, the date the Department of State officially started enforcing the Executive Order. CLINIC has provided legal assistance to more than 50 applicants requesting waivers and has been tracking the results of these applications, as well as several others. Only two waiver applications have been granted so far.
The first waiver that was granted was for the husband of an LPR. Two gynecologists had certified that the LPR wife’s ovarian reserve (egg supply) was barely enough to secure pregnancy during the next 12 months and that she may soon lose her opportunity of motherhood. The second waiver was granted to a father who had applied for a tourist visa. He was seeking to visit his 18-year-old son who had been in the United States for the last four years and was attending Montgomery College in Maryland.
Developments in the travel ban have been fast and harsh. We can barely guarantee that our advice to clients will remain accurate for 48 hours. Not only has the government and the courts been introducing new rules and orders, but the embassies have also been applying different and inconsistent standards in processing the visa applications in accordance with the new law. Part of this inconsistency is attributable to uncertainty among the embassy staff. We also suspect that the Department of State has issued instructions to the consular sections of the embassies that they are not sharing with the public. Lack of any official guidelines is one the most important reasons for the ambiguity and confusion among visa applicants, as well as among immigration practitioners.
Without being able to find any meaningful and helpful guidelines, we have no source of updated information except the anecdotal facts we have gathered from the people who have attended the interviews. We frequently ask them to contact us after their interviews and share their experience with us. However, it has been difficult to analyze this data. First, most of the visa applicants are not familiar with immigration law and are not aware of the many technicalities that are involved. Under the pressure and stress of the interview, they lose their ability to pay attention to details; in many cases they can barely remember what they heard or saw. Therefore, we need to obtain several stories to find a common pattern. For example, we just heard from two clients that the consular officers in Abu Dhabi and Ankara refused to accept the waiver packages from the applicant. The officers asked them to tell their friends “not to bring waiver requests to the interview.” We are now trying to verify this information and see if there has been a change in the policy of the consulates accepting the waiver packages from the applicant after the Supreme Court’s grant of a writ of certiorari on January 19, 2018. If so, we would then need to advise our clients accordingly.
Despite the low chance of receiving a visa, we advise the applicants to show up to their interviews with a well-prepared waiver application. If the application is rejected based on the Executive Order, they may be at an advantage to receiving a visa should the ban be lifted in the future. We have heard that some consular officers have informed the rejected applicants that if the ban is lifted, they can come back and get a new interview without waiting for a new appointment.