Waiver Process or Window Dressing: The Ongoing Controversy of the Travel Ban

According to its text, the Trump Administration’s travel ban is not absolute. It currently prohibits entry into the United States by all immigrants and certain nonimmigrants from Iran, Libya, North Korea, Somalia, Syria, and Yemen, and also excludes specific individuals from Venezuela.[1] Anyone barred, however, may receive a waiver to enter the country provided three criteria are met.[2] These waivers comprise the center of litigation in Emami v. Nielsen. The plaintiffs in the case contend that the government is not properly granting waivers, arguing the program instead conceals an underlying policy of near-universal denials.[3] They base a component of their argument in the Accardi doctrine, which holds that “[w]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”[4]

This case is ongoing, and the presiding court, the United States District Court for the Northern District of California, recently allowed the claim to survive a motion to dismiss.[5] In the corresponding opinion, Judge James Donato noted that the Supreme Court expected the waiver process would function in a similar manner to the humanitarian exceptions implemented by the Carter Administration during the Iran hostage crisis.[6] When comparing the two policies, however, the Trump Administration’s waiver process has resulted in significantly fewer approvals due, in part, to its more stringent standards and heightened scrutiny.

As a result of the Iran hostage crisis, President Carter began to institute hardline policies against Iranian immigrants in 1979, and in the following year, he refused to issue any new visas to Iranian nationals unless there existed “compelling and proven humanitarian reasons or where the national security of our country requires.”[7] He stated, “This directive will be interpreted very strictly.”[8] Consequently, within the years 1978 and 1981, the number of Iranians who received immigrant visas to enter the United States decreased from 2,122 to 1,806 respectively.[9]

Despite the restrictions, some officials suggested an underlying component of the Carter Administration’s policy was to assist religious minorities fleeing turmoil and violence in Iran.[10] The Carter Administration specifically created the humanitarian exceptions to grant Iranians visas if they had immediate relatives in the United States, claims of political asylum, or other medical or humanitarian reasons.[11] One official said that “if they were visiting a sick aunt, it would fit the humanitarian exception.”[12]

By comparison, the Trump Administration has implemented a waiver policy that has resulted in far less access to the United States. Although the current travel ban targets six additional countries, fewer waivers are issued.[13] Across fiscal year 2018, a mere 923 individuals received waivers for immigrant visas,[14] and over the same period, the administration denied over 94 percent of waiver applications.[15] A former State Department official, discussing the policy in a sworn affidavit, said that “there really is no waiver [process],” referring to the program as “merely window dressing.”[16]

The Trump Administration’s travel ban states that anyone excluded may receive a waiver if the following three criteria are all met: (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 United States;” and (3) “entry would be in the national interest.”[17]

Beyond listing these three requirements, however, the text of the ban does not significantly elaborate on the details of the waiver process. Therefore, the Trump Administration directed the Secretary of State and the Secretary of Homeland Security to “coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.”[18] Senator Van Hollen (MD) secured letters from the State Department identifying the specific guidance adopted.[19] Based on his analysis, he believed these internal procedures followed a strict interpretation of the three stated requirements, producing results he deemed “deeply disturbing.”[20]

The State Department’s guidance establishes that the applicant must first show undue hardship, meaning “an unusual situation compels immediate travel by the applicant.”[21] If delaying travel would defeat its purpose, then the visa will be denied.[22] To meet the second requirement, the applicant must establish their travel is in the national interest by showing “a U.S. person or entity would suffer hardship if the applicant could not travel until after visa restrictions imposed with respect to nationals of that country are lifted.”[23] And finally, the applicant must show the travel would not threaten U.S. national security or public safety.[24] A reviewing official must, accordingly, consider “the information-sharing and identity management protocols and practices of the government of the applicant’s country of nationality as they relate to the applicant.”[25]

In addition to clarifying the three requirements, the letters also describe further internal procedures concerning the waiver process. Reviewing officials must consider each application according to its own merits and may not categorically grant waivers.[26] Even derivative applicants, the spouse or children of a principal applicant, must be individually assessed.[27] Moreover, reviewing officers are not required to accept an applicant’s supporting documentation.[28]

In some instances, the State Department actively discourages applicants from submitting materials in support of a waiver according to Mahsa Khanbabai, a Massachusetts-based immigration attorney representing individuals navigating the waiver program.[29] Commenting on the process, she said that “even in cases where they do take [supporting materials], the extraordinary amount of time it takes to make a decision causes tremendous hardships for people.”[30]

Hardship as a result of the travel ban, and its waiver program, is ever-present for the plaintiffs in Emami v. Nielsen: some are separated from their aging parents while others have yet to meet a newborn child.[31] All have had waivers either denied or stalled despite applications that presumably meet the three criteria.[32] “The waiver process is the only hope for thousands of families seeking to be reunited,”[33] stated Sirine Shebaya, an attorney currently representing the plaintiffs. “Although the road has been long and hard, it’s not over yet.”[34]

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