Expansion of “Travel Ban” to Nigerians Shines New Light on Waiver Process

Citing reasons of national security, by Proclamation dated January 31, the U.S. President expanded the “Travel Ban” to nationals of six more countries – Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania.  The expansion takes effect on February 21, 2020.  Given that Nigerians account for 3 times as many immigrant visas as nationals from the five other countries combined, the expanded Travel Ban is likely to stir up the most confusion and controversy within the Nigerian immigrant community.

Notably, nationals of the six countries covered by the expanded Travel Ban will be subject to restrictions with regard to immigrant visa applications.  With respect to nationals of Sudan and Tanzania in particular, the restrictions apply only to diversity immigrant visa applicants.  Thus, the expanded Travel Ban does not apply to non-immigrant visa applications submitted by nationals of the new group of six countries.  Also, the Travel Ban does not adversely impact USCIS adjudications of immigrant petitions, such as for example I-130 family petitions and I-526 investor petitions, that must be approved by USCIS before the intending immigrant may apply for an immigrant visa.

Since September 2017, and after the U.S. Supreme Court in Trump v. Hawaii upheld the constitutionality of a sitting U.S. president to issue executive orders barring entry of foreign nationals in order to protect national security, the Travel Ban has been in effect to restrict issuance of certain classes of non-immigrant and immigrant visas to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  A series of executive orders is based on findings of insufficient information-sharing protocols with governments of these foreign countries.  However, the legality of the Travel Ban rests in large part on the existence of a waiver process.

Waivers to the Travel Ban are technically available to individuals with established ties to the United States or for other compelling reasons.  After well-documented experience suggested the Department of State had nothing more than a de facto policy of blanket denials of waiver applications, the Administration has been required to defend its practices in federal district court, particularly in the Emami and PARS cases now litigated in the Northern District of California. See L. Stone, “The Travel Ban Waiver: A Real Adjudication or Mere Window Dressing?”

Waivers should be granted where an applicant demonstrates that:

• Denying entry would cause the foreign national undue hardship;
• The entry of the applicant would not pose a threat to national security; and
• The issuance of the visa is in the national interest.

According to the earlier proclamation, the government should be granting waivers “in the national interest” in the following circumstances:

• Applicant was previously admitted to the United States for a continuous period of long-term activity, is outside the United States on the effective date of the proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
• Applicant previously established significant contacts with the United States but is outside the United States on the effective date of the proclamation for work, study, or other lawful activity;
• Applicant seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
• Applicant desires to enter the United States to visit or reside with a close family member who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid non-immigrant visa, and the denial of entry would cause undue hardship.

 

In advocating for a waiver, if an applicant is able to satisfy the consular officer that the issuance of a visa is in the national interest, the next step would be to convince the officer that denying entry would cause undue hardship to the applicant.  The Department of State defines “undue hardship” as “an unusual situation that compels immediate travel by the applicant and that delaying visa issuance and the associated travel plans until after visa restrictions … are lifted would defeat the purpose of travel.”  See Internal Redacted DOS guidance, dated January 23, 2018, produced pursuant to a FOIA request.

If an applicant is able to satisfy the undue hardship requirement, the government then must be satisfied that the applicant would not pose a threat to national security.  There is nothing an applicant can do to affirmatively satisfy this requirement, as it is satisfied only through what is typically a relatively lengthy security check.

Just two weeks ago, the U.S. Department of Justice reported to the court in the Emami and PARS cases that 17 of the named plaintiffs had been granted Travel Ban waivers.  A closer review reveals that these waivers were granted in family-based cases.  A couple EB-5 investors have pending waiver applications, and were not denied as were many other family-based and tourist applicants.

The Travel Ban designation is reviewed periodically by the U.S. government for improvements that merit de-listing of the country.  Chad, for example, originally was a Travel Ban country but is no longer.  The U.S. government is using the following criteria to assess national security and public-safety threats:

• whether a foreign government engages in reliable identity-management practices and shares relevant information;
  • whether a country routinely issues electronic passports
  • whether the country timely reports lost or stolen passports to INTERPOL
• whether a foreign government routinely shares useful national security and public safety information; and
• whether a country otherwise poses a national security or public-safety risk.

Possibly, with ever-longer petition adjudication times at USCIS, a country such as Nigeria could be de-listed on the strength of enhanced security cooperation with the United States, before it is time for a Nigerian to apply for an immigrant visa.