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Travel Ban Waiver - Everything You Need to Know

The travel ban is in full effect. What does this mean for you and your family if you are from one of the banned countries such as Iran? What happens if you have a pending case? An upcoming embassy interview? What if you are in administrative processing? We will address this frequently asked questions that we receive every single day from many clients and their families.
What is Visa Waiver Letter (Presidential Proclamation Waiver)? How Do I Qualify for a Waiver?  

The travel ban/Presidential Proclamation states that visa applicants from Iran, Somalia, Yemen, Libya, Chad, North Korea, or Venezuela cannot be given visas and they are not allowed to enter the United States. At the same time, the Presidential Proclamation also provides for a waiver where a visa applicant can show why they should be allowed to enter the United States despite the travel ban restrictions.

There is no application or formal procedure for qualifying for a waiver. The person is evaluated for a waiver at the time of the interview. The travel ban/Presidential Proclamation has provided three factors of how a person can qualify for a waiver: The applicant must show (1) that a denial would cause undue hardship, (2) that he or she does not pose a national security threat, and (3) that a visa approval would be in the “national interest.”
 
We recommend that you be proactive about a waiver. Even though there is no formal procedure, it is best to have a waiver letter from an immigration attorney with you at the interview. A waiver letter is a letter by an attorney that specifically states how and why you should be provided a waiver to the travel ban. Otherwise, you can allow the officer to decide based on the evidence you provided in your original application and questions asked at the interview. It is always a lot better to provide the evidence yourself and specifically provide the interviewing officer the reasons why you are an exception. You have the duty to show why you are an exception to the travel ban.

An applicant must show that they can fulfill all three factors. Through a waiver letter, a person can provide the exact evidence that the interviewing officer is looking for. We have submitted many waiver letters on behalf of clients. Like anything everything else in immigration, submitting a waiver evidence is not a complete guarantee that you will be given a waiver. It depends on your individual circumstances and the strength of your evidence. However, it is always best to provide the most evidence possible.

I am from Iran and I Have an Upcoming Interview with U.S. Embassy, What Do I Do? 

If you are from one of the banned countries such as Iran and you have an upcoming interview, it depends on your case and your individual circumstances whether it is a good idea to attend the interview or delay. It comes down to what type visa you applied for, the amount of time that you have waited for the interview, and the risk of being rejected because of the travel ban and having to start the process over again.

Generally-speaking, if you are Iranian citizen and an immediate relative of a U.S. Citizen or legal permanent resident, this a preferred category which immigration looks more positively on versus a temporary visa like a tourist visa. If you have an upcoming interview, it is best to attend the interview and take a waiver letter from your immigration lawyer with you. You want to show the interviewing officer how and why you should be given a visa regardless of the travel ban restrictions. 

On the other hand, if you are a brother or sister of a U.S. Citizen, for example, and you have waited over 10 years to receive your interview, it might be best to postpone the interview. If you get rejected because of the travel ban, then you will be required to start the process all over again which includes waiting another 10 plus years. Therefore, it is best to delay the interview a little longer to hopefully bypass the travel ban. We do not know whether the travel ban/Presidential Proclamation will be stopped. We are waiting for the Supreme Court to set a date to evaluate the law and determine whether it is an illegal law. Until that time, if you can wait a little longer for your interview, ImmigraTrust’s recommendation is that you should, particularly if you have been waiting for so long for your visa category to become current and to receive an interview date. You do not want to have to worry about the travel ban if you can.

My Case is in Administrative Processing, I Received An Email That My Case Will be Rejected Because of the Presidential Proclamation, How Can I Qualify for a Waiver? 

Administrative processing is a background check process that the embassy does on the applicant after the interview. This process can sometimes take two years or more. During this time, the embassy is requesting information on the applicant from various agencies regarding the person’s travels, social media history, associations, work history, etc. Unfortunately, being placed in administrative processing is very normal especially for Iranian applicants from Iran, Syria, Somalia, Yemen, and Libya.

If you are in administrative processing and you recently followed up on your case, you may have received an email or a pink/red letter from the embassy stating that your case will be rejected based on the Presidential Proclamation and that they will evaluate your case for waiver eligibility. In this situation, you should submit a waiver letter to show why your case should be granted a waiver to the travel ban/Presidential Proclamation (see the question above regarding how to qualify for a waiver and information regarding waiver letters).

If you are have been in administrative processing for more than a year and a half, please contact us. While it is normal to be place in administrative processing, the embassy is not supposed to make the process an impossible and no-end process. They have to provide answers. Therefore, if you have been following up constantly without any response, there are ways to get answers on your case. For example, there is a type of lawsuit that visa applicants can file against the government for unjustly delaying their case. It is called “mandamus.” This is a powerful tool that can be very beneficial especially for families that have tried every other option to get answer for their applications.

The Embassy Told Me My Case Has been Rejected Because of the Presidential Proclamation, What Do I Do? 

If after the interview, the officer told you that you are have been rejected due to the travel ban, or after following up via email regarding your case, you received a rejection based on the Presidential Proclamation and were told that you do not qualify for a waiver, you have options. Based on the travel ban, the embassy must give you an opportunity to present evidence of why you qualify for a waiver. Many times, the rejection letters state that the rejection decision is not appealable. However, the embassy is required to properly evaluate the applicant for a waiver, and if you had a waiver letter that the embassy did not review or ask you questions regarding your waiver eligibility, it can be beneficial to have an attorney to follow-up with the embassy regarding your qualifications for a waiver. You have invested time and money to submit your visa application and while asking to be evaluated for a waiver is not a complete guarantee of visa approval, it is a process that means that you can at least try your options to save your visa application and not have to start the process all over.

If you have any questions regarding the travel ban/Presidential Proclamation, waiver eligibility and other immigration questions, we are here for you. We look forward to speaking with you soon! We have successfully helped many clients from Iran and other countries affected by the travel ban by providing strong waiver letters to overcome Trump’s travel ban so that they can reunite with their families, work and invest in the United States.
There are many questions that our clients ask us every day such as: How immigration officers will decide and analyze the waivers? Will there be a form? What is “undue hardship?” What is “national security?” Does an individual have to make a direct request for waiver? What type of evidence is required to be submitted for the waiver? How long will applicants have to wait before a decision is made on a waiver application? Since every case is different, there is no single answer to these questions. We highly recommend consulting with an immigration attorney regarding preparing evidence and your waiver letter to ensure success.

For more information on the Muslim travel ban and other immigration topics, please visit our articles page (https://www.immigratrust.com/blog). 

For additional questions, please contact us at www.ImmigraTrust.com or by calling (949) 424-2045. Please subscribe to our Facebook page (https://www.facebook.com/ImmigraTrust) for updates! 

--Najmeh Mahmoudjafari, J.D. 
Najmeh is the Founder and Lead Immigration Attorney at ImmigraTrust Law, an immigration law practice in Orange County, California, representing individual and corporate clients in all 50 U.S. States and internationally. Najmeh can be reached at Najmeh@ImmigraTrust.com


 
DISCLAIMER: This article is for general information purposes only. It is not intended and does not constitute legal advice. This article does not create an attorney/client relationship and does not provide an attorney/client privilege. For legal advice about your specific case, please contact an attorney. 

About the Author
Najmeh Mahmoudjafari
Posted - 03/08/2018 | California