Exemptions and Waivers Under President Trump’s Travel Ban

On June 26, 2018, in a 5-4 decision the U.S. Supreme Court upheld the travel ban that President Trump issued on September 24, 2017, named Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists and other Public Safety Threats,” imposing travel restrictions on nationals from seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. This was the third version of President Trump’s travel ban. Previous versions were issued on January 27, 2017 and March 6, 2017. The list of countries originally included Chad, but the travels restrictions placed on nationals of that country were removed on April 10, 2018. The following chart indicates the countries currently listed on the ban:

The effective date of Presidential Proclamation 9645 is either September 24, 2017 for those subject to the prior travel ban and who lacked a “bona fide relationship” with a person or entity in the United States, or October 18, 2017 for all others.

EXEMPTIONS

Some individuals are exempt from the travel restrictions of the Presidential Proclamation, despite being a national of one of these countries, specifically:

• Those in the United States on the applicable effective date, regardless of their immigration status;
• Those with a valid visa on the applicable effective date;
• Those who qualify for a visa under section 6(d) (those whose visas had been marked revoked or cancelled solely based on the original January 27, 2017 travel ban);
• Lawful permanent residents;
• Those who are admitted or paroled into the United States on or after the applicable effective date;
• Those who had a valid visa on the applicable effective date or were issued a valid visa on any date after that permits them to travel to the United States and seek entry or admission (e.g. advance parole);
• Dual nationals, when traveling on a passport issued by a non-designated country (e.g. a dual national of Syria and Canada traveling on a Canadian passport);
• Those traveling on a diplomatic or similar visa (except for certain Venezuelan government officials);
• Those who have been granted asylum, admitted to the United States as a refugee, or were granted withholding of removal, advance parole or protection under the Convention Against Torture.

WAIVERS

For those who do not fall under any of these exemptions, they may request and receive a waiver. Consular officers may grant waivers on a “case-by-case basis”. In order to grant a waiver, the consular officer must determine that (1) issuance of a visa is in the national interest of the United States, (2) the applicant poses no national security or public safety threat to the United States, and (3) denial of the visa would cause undue hardship. The Proclamation provides ten examples of when waivers may be granted. The examples include foreign nationals who were previously admitted to the United States, but outside the United States on the applicable effective date and foreign nationals who has previously established significant contacts with the United States. Other examples include foreign nationals who seek to enter the United States for significant business or professional obligations and foreign nationals who seek to visit or reside with a close family member (spouse, child or parent) who is a U.S. citizen, lawful permanent resident, or nonimmigrant visa holder. Another example provided is foreign nationals who are an infant or young child or are in need of urgent medical care.

Although some waivers have been granted since then, the process for requesting a waiver can be confusing and vary depending on the consulate reviewing the case. Based on numbers obtained, not all waiver requests are being granted. Therefore, it is important that if you or a family member is a national of one of these countries that you seek the assistance of a qualified immigration attorney to assist in the preparation and submission of a waiver application. This may increase the likelihood of you or your family member being granted a waiver and, ultimately, a visa.

Please contact our immigration attorneys if you or your family members need assistance in applying for a waiver.