Who determines eligibility under the travel ban prongs?
There is a three-step analysis conducted by a consular post to determine visa eligibility for nationals of countries subject to the travel ban. The consular post determines if the applicant is 1) eligible for the visa category; and 2) in a category of person exempt from the travel ban; or 3) eligible for a waiver pursuant to section 3(c) of the Presidential Proclamation.
For those applicants who are not exempt from the ban, a waiver must be sought at the time of making the visa application. There is no form or fee required and consular officers are instructed to make a determination of eligibility for the ban for each applicant. Determining eligibility for a waiver requires evaluating each of the three criteria outlined in the Proclamation. These are: 1) undue hardship to the applicant if entry to the U.S. is denied; 2) entry would be in the U.S. national interest; and 3) entry would not be a threat to national security. The first two criteria are decided at the consulate. The consular post generally adjudicates the first two criteria on its own. However, the post may request guidance from the Visa Office (VO) if it seeks to clarify eligibility under the first two criteria.
The post must seek guidance from the VO, however, if the second criterion (national interest) involves a fact pattern outside those listed in the Proclamation at section 3(c)(iv). After the post determines that the first two criteria are satisfied by an applicant, the application is then referred to the VO for a national security review. If the first two prongs are not met initially, then the waiver is denied. If the applicant overcomes the first two prongs, then the consulate will consult with the VO regarding national security.
A visa applicant who is subject to the travel ban is likely to receive one of two refusal letters from the consular post. The first indicates that the applicant is inadmissible and not eligible for a waiver – this is a final determination. The second letter indicates that the application is undergoing the waiver review process.
How does the waiver process interact with any potential administrative processing?
Administrative processing and the waiver process may occur at the same time. If there is a reason for administrative processing unrelated to the travel ban, then the administrative processing may take even longer. Unfortunately, there is no way to estimate likely processing times for additional review conducted for visa applications. For additional information on visa applications which are undergoing administrative processing, as well as suggested steps for following up with the Department of State on applications pending administrative processing, please see AILA’ DOS Liaison Committee’s practice pointer on administrative processing.
Source: AILA Doc. No. 18072002.
