Practice Alert: DHS and DOS Implementation of Executive Order Imposing Travel and Refugee Ban – Immigration Attorney Los Angeles. Free Consultation with a Lawyer.

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On 3/8/18, AILA updated its practice alert after Reuters reported on a letter sent to DOS seeking clarity on the waiver process for individuals impacted by President Trump’s September 2017 Presidential Proclamation, as well as DOS’s response to the senators.

MARCH 8, 2018: On March 6, 2018, Reuters reported on a letter sent by Senators Chris Van
Hollen (D-MD) and Jeff Flake (R-AZ) to the Department of State (DOS) seeking clarity on the
waiver process for individuals impacted by President Trump’s September 24, 2017, Presidential
Proclamation, as well as DOS’s response to the senators.

By way of background, the entry restrictions of the Proclamation may be waived on a case-by-case
basis for individuals impacted by the Proclamation if a consular officer or Customs and
Border Protection (CBP) official determines, in their discretion, that the applicant meets each of
the following three criteria: (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 U.S.; and (3)
entry would be in the national interest. Despite this waiver scheme, very little definitive guidance
has been provided to the public regarding the waiver process and the standard for receiving a
waiver. As a result, Senator Van Hollen and Senator Flake sent a letter to the DOS and DHS on
January 31, 2018, demanding guidance on the waiver process, as well as information about the
number of applicants from the countries designated in the Proclamation who have applied for
visas and those who have received waivers.

In response, DOS sent a letter, dated February 22, 2018, to Senator Van Hollen, which provides
some additional information regarding how DOS is processing waivers, specifically how
consular officers are evaluating each of the three waiver criteria:

  • Undue Hardship Criterion: In order to satisfy the undue hardship criterion, the visa
    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 the
    issuance of the visa and the associated travel plans would defeat the purpose of the travel.
  • National Security / Public Safety Criterion: In establishing that the applicant does not
    constitute a threat to national security or public safety, the consular officer considers the
    information-sharing and identity-management protocols and practices of the government
    of the applicant’s country of nationality. If the consular officer determines, after
    consultation with the Visa Office, that an applicant does not pose a threat to national
    security or public safety and the other two requirements have been met, a visa may be
    issued with the concurrence of a consular manager.
  • National Interest Criterion: 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 to the U.S. until
    after restrictions imposed by the Proclamation with respect to nationals of that country
    are lifted.

The DOS letter also provides data regarding visa applications received and processed for nationals
subject to the Presidential Proclamation. Between December 8, 2017 and January 8, 2018, DOS
reports receiving 8,406 applications for nonimmigrant and immigrant visas from nationals subject
to the Presidential Proclamation. Of those, 6,282 visa applicants were determined to have failed to
meet the criteria for a waiver, 271 visa applicants were refused under the Proclamation, and just 2
applicants have had waivers approved (as of February 15, 2018). Since the letter, DOS has stated
to Reuters that more than 100 additional waivers have been granted.


Source: AILA Doc. No. 17012670.


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