Travel Ban Waiver Criterion Receive Scrutiny After Supreme Court Upholds Visa Ban

By Ameer Shaikh

On September 24, 2017, President Trump announced Presidential Proclamation 9645, commonly known as the third version of the “Muslim Ban” or “Travel Ban.” In it, nationals from Chad, Iran, Libya, North Korea, Venezuela, Yemen, and Somalia were restricted from traveling to or entering the United States (with some exemptions for legal permanent residents and dual nations). The proclamation provided three criterion for granting a waiver: 1) undue hardship if entry is denied; 2) entry would be in the national interest; and 3) entry would not pose a threat to national security or public safety.

This version of the travel ban was upheld by the Supreme Court in a 5-4 decision on national security grounds. The dissenting opinion, issued by Justice Breyer, argued that the Travel Ban could, in theory, be constitutional, but since the Department of State was essentially failing to grant any waivers it essentially became a Muslim Ban. Justice Sotomayor offered a second dissent, arguing that the ban was not a neutral security related ban, but was specifically designed to exclude Muslim based on the language the administration had used in the past.

The travel ban will have an impact across many visa types, especially for those visa applicants applying on the basis of an approved I-130 petition for a relative of a US citizen or lawful permanent resident. These will potentially include spouses, children, or parents. As such, the travel ban will definitively sever and impact families. Other visa types that will be significantly impacted include B-2 visas for tourism, K-1 Fiancé visas, and visas for individuals that win the diversity lottery.

While the Travel Ban does contain a mechanism for seeking a waiver, some former consular officers have indicated that the waiver process is a sham. Nevertheless, if a waiver is going to be sought, it would have to fulfill the above mentioned three criteria.

If you would like to evaluate whether your visa application can fit into one of the travel ban waiver categories please speak to a licensed professional.



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