The Trump travel ban supposedly came with an opportunity to apply for a waiver, but how does one actually apply for it?
By Ilona Bray, J.D.
When Donald Trump signed the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States in 2017, banning foreign travel into the U.S. from various nations, it included a provision saying waivers would be granted on a case-by-case basis. Either a consular officer or or a Customs and Border Protection (CBP) official could, it said, make this discretionary decision. But how does one actually qualify or apply for it?
Who Qualifies for a Waiver of Travel Ban
To be eligible for a waiver, the applicants must demonstrate all of the following:
- Undue hardship to the applicant would be caused if U.S. entry is denied. In other words, some unusual situation other than difficulty in the home country compels immediate travel and delaying issuance of the visa would defeat the purpose of the applicant’s trip. Note that “undue hardship” is less than the “extreme and unusual hardship” required for some immigration waivers.
- The applicant’s entry to the U.S. would be in the U.S. national interest. This means that some U.S.-based person or entity would suffer hardship if the applicant could not travel until the travel ban is lifted.
- The applicant’s entry to the U.S. would not pose a threat to U.S. national security or public safety. The DOS will check the applicant’s name against FBI and related databases, as well as check sources within countries where the applicant has lived.
With regard to the undue hardship criterion, a DOS letter of February 22, 2018 summarized that the applicant must “demonstrate to the satisfaction of the consular officer that an unusual situation exists that compels immediate travel,” such that delaying issuance of the visa would defeat the very purpose of that travel.
The same letter explained that for the requirement regarding the U.S. national interest, the applicant will need to show that “a U.S. person or entity would suffer hardship if the applicant could not travel” to the U.S until the travel ban is lifted.
The public safety portion of the waiver requirement will depend more on what the U.S. government turns up in various crime databases.
The Executive Order also offered examples of who might qualify for a waiver, such as people with:
- previous U.S. admissions for continuous work or study
- significant ties to the U.S.
- significant business or professional obligations in the U.S.
- close U.S. family members (spouse, children under age 21, or parents) would suffer undue hardship if the applicant was denied entry
- emergency circumstances such as medical needs
- jobs with the U.S. government or an international organization
- landed Canadian immigrant status, applying for the visa from Canada, and
- government sponsorship for an exchange program.
Practitioners report, however, that very few people actually get “cleared” for these waivers by the Department of State (DOS), and even fewer receive an actual grant thereafter.
What Is the Application Process for a Travel Ban Waiver?
No waiver form has been created to apply for this travel-ban waiver. The only good news about that is that no fee has been set to review one’s waiver request (as would be all but guaranteed if there were a form for it).
Basically, you will be expected to apply for the visa as normal, pay all the application fees, and apply for the waiver at your visa interview at a U.S. consulate in your home country.
(Attorneys have tried submitting waiver requests earlier in the process, such as when submitting the initial petition to U.S. Citizenship and Immigration Services (USCIS) or interacting with the National Visa Center, which is an intermediary between USCIS and the overseas consulate, but have had limited success with this.)
The consular officer who conducts the visa interview is not even obligated to accept written materials requesting the waiver. Applicants are allowed to simply “disclose” during their visa interview the reasons they believe they are waiver-eligible. No matter what, be ready to sum up your reason for requesting the waiver when talking to the officer.
Preparing Written Evidence to Support Your Waiver Request
If at all possible, however, prepare written materials explaining the reasons you merit a waiver and accompany that with supporting evidence.
Start by filling DOS Form DS-5535. Although it’s not necessarily required, it asks various relevant questions, so immigration attorneys have begun to regularly use it in this context.
Also prepare sworn declarations from you and any U.S.-based family members explaining eligibility for the waiver, including your immediate need for the visa and the hardship that would be caused if you were denied.
If the urgent need is based on a U.S. employment or academic relationship, also have the employer or school write a letter of explanation. An employer, for example, might mention the cost of recruiting someone new to replace you, or the lost business that would result (accompanied by, for example, copies of important business contracts for projects you are involved in).
Look for supporting materials from authoritative, unbiased sources. For example, if you are claiming a waiver based on emergency medical needs, you would want to include a statement from your doctor.
If claiming a waiver based on hardship to family in the U.S., you would need to provide copies of birth and marriage certificates proving the family relationship (if they’re not already in the immigration file under which you’re applying) and evidence of the nature of that hardship.
If difficult conditions in the home country are a factor, cite sources such as the DOS’s travel warnings. Tough country conditions won’t be enough for a waiver grant by themselves, but can be woven into a more specific, personal account of potential hardship.
If you have already made travel arrangements, include copies of the tickets and itineraries in your waiver request packet.
Copies of visas you have received from other countries as well as local police certificates can also be useful, as proof that you have been vetted and cleared by other countries, and present no security risk.
Law Office of Bryan A. Chapman
Bryan A. Chapman, Esquire
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