2018 AILA –DC Chapter Fall Conference NON IMMIGRANT VISA WAIVERS AT CONSULAR POSTS AND THE TRAVEL BAN Panelists: JAN PEDERSON Discussion Leader:

© 2018 AILA D.C. Chapter Fall Conference INTRODUCTION NON IMMIGRANT WAIVERS Legal References 212(d)(3)(A) and 212(d)(3)(B) of the INA 9 FAM Notes 305.4 (processing waivers) and 9 FAM 302 (grounds of inadmissibility) AILA, “The Waivers Book—Advanced Issues in Immigration Law Practice”. © 2018 AILA D.C. Chapter Fall Conference

NON IMMIGRANT VISA WAIVERS Who is eligible? Everyone eligible unless ground cannot be waived No need for qualifying relative No need for passage of time since inadmissibility ground arose. © 2018 AILA D.C. Chapter Fall Conference

WHAT GROUNDS CANNOT BE WAIVED Espionage, sabotage or export law violations – 212(a)(3)(A)(i) Unlawful Activity Related to Security – 212(d)(3)(A)(ii) Attempts to overthrow US Government – 212(d)(3)(A)(iii) Contrary to foreign policy interests – 212(a)(3)(C) © 2018 AILA D.C. Chapter Fall Conference

WHAT GROUNDS CANNOT BE WAIVED Nazi Party Membership and Genocide - 212(a)(3)(E)(i) and (ii) Individual whose presence is contrary to USG interests—212(f)—Travel Ban Cases Applicants who are or have been determined to be Class A for drug abuse or addiction for those substances listed in Schedule I through V of Section 202 of the Controlled Substance Act are not eligible for a waiver and must complete the time period for sustained, full remission before reapplying for a visa—general one year of full remission © 2018 AILA D.C. Chapter Fall Conference

WHAT GROUNDS CANNOT BE WAIVED All grounds not noted in prior slide. Of note: Persons involved in money laundering or drug trafficking. Terrorist (sparingly used). E.G. Nelson Mandela © 2018 AILA D.C. Chapter Fall Conference

© 2016 AILA D.C. Chapter Fall Conference NIV WAIVER PROCESS No Application Required No fee required Documentation in Support of Waiver Submitted to Consular Officer Consular Officer must make favorable recommendation to the Admissibility Review Office (ARO) of CBP in Washington Thus, consular officer is the front line officer to whom case must be made © 2016 AILA D.C. Chapter Fall Conference

FACTORS CONSIDERED BY CONSULAR OFFICERS Recency and seriousness of activity or condition causing applicant’s inadmissibility Reasons for proposed travel to U.S. Any legitimate purpose such as family visits, medical treatment (whether or not available abroad, business conferences, tourist, etc. Crimes—5 year rule. Prism of violence Misrepresentation © 2016 AILA D.C. Chapter Fall Conference

FACTORS CONSIDERED BY CONSULAR OFFICERS Unlawful Presence Reason for and culpability in unlawful presence Length of time outside the United States since unlawful presence Incompetent legal representation Substance abuse DUIs DOS/CDC policy One alcohol related arrest or conviction within last five years or two more alcohol related arrests or convictions with last ten years or other evidence to suggest an alcohol problem invokes mandatory referral to panel physician and often psychologist to consider abuse and associated harmful behavior—past, present or future. Beware of new DOS policy to revoke visas with only an arrest for DUI. © 2016 AILA D.C. Chapter Fall Conference

FACTORS CONSIDERED BY CONSULAR OFFICERS Drug Use Helpful Evidence to Submit to Prove Rehabilitation/Remission Google Test. Google your client and know the government will also. If issuance of a visa may cause political or national security ramifications, consular officers will often consult with the Visa Office before submitted to ARO. © 2016 AILA D.C. Chapter Fall Conference

WHERE TO GO WHEN THE CONSULAR OFFICER SAYS NO Attorney has right to appeal refusal of consular officer to recommend waiver to the Advisory Opinion Division of the Visa Office and request de novo review Rarely successful unless previous waiver granted and no changed circumstance to justify refusal of subsequent waiver If VO agrees waiver should have been recommended they can recommend a waiver to ARO Note: Consular officer has opportunity to submit arguments to VO opposing the waiver © 2016 AILA D.C. Chapter Fall Conference

PROCESSING TIMES AND PROCEDURESIN PROCESSING NIV WAIVERS Consular Post Process Electronic Process How to Ensure Attorney Material Submitted to ARO Processing Times at Posts Today ARO Process Attorney Communication with ARO Processing Times by Category Processing Steps © 2016 AILA D.C. Chapter Fall Conference

© 2016 AILA D.C. Chapter Fall Conference TRAVEL BAN AND WAIVERS Consular Post Process Electronic Process How to Ensure Attorney Material Submitted to ARO Processing Times at Posts Today ARO Process Attorney Communication with ARO Processing Times by Category Processing Steps © 2016 AILA D.C. Chapter Fall Conference

© 2016 AILA D.C. Chapter Fall Conference TRAVEL BAN AND WAIVERS Yemen and Somalia. Exemptions from Travel Ban. Lawful Permanent Residents Dual nationals traveling on a passport of a non-designated country. For nationals who are not subject to an exemption but otherwise covered by the ban, the Proclamation sets forth a waiver scheme for affected nationals to demonstrate eligibility for a waiver based on three criterion: 1) undue hardship if entry is denied; 2) entry would be in the national interest; 3) entry would not pose a threat to national security or public safety. © 2016 AILA D.C. Chapter Fall Conference

© 2016 AILA D.C. Chapter Fall Conference TRAVEL BAN AND WAIVERS Not all visas are prohibited to all nationalities. For example, Iranians are eligible for F, J, and M visas. Only some Venezuelans are barred. The Chart listing the Travel Ban nationalities and the types of visas exempt from the ban can be found at __________. © 2016 AILA D.C. Chapter Fall Conference

FACTS WHICH MAY SUPPORT A WAIVER The Presidential Proclamation lists examples of cases where a waiver might be appropriate. A) The applicant has previously been in the U.S. for a continuous period of work, study, or other long-term activity and seeks to re-enter to engage in that activity and denial of the visa would impair that activity; (B) the applicant has previously established significant contacts with the United States © 2016 AILA D.C. Chapter Fall Conference

FACTS WHICH MAY SUPPORT A WAIVER but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity; (C) The applicant seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations; © 2016 AILA D.C. Chapter Fall Conference

FACTS WHICH MAY SUPPORT A WAIVER (D) The applicant seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship; or (E) The applicant is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances case; © 2016 AILA D.C. Chapter Fall Conference

FACTS WHICH MAY SUPPORT A WAIVER F) The applicant has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government; (G) The applicant is traveling for purposes related to an international organization traveling for purposes of conducting meetings or business with the United States Government, © 2016 AILA D.C. Chapter Fall Conference

FACTS WHICH MAY SUPPORT A WAIVER or traveling to conduct business on behalf of an resident who applies for a visa at a location within Canada; (I) The applicant is traveling as a United States Government sponsored exchange visitor; or (J) The applican is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes. © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS No application or fee is required. Since Travel Ban went into effect on 12/8/17, about 2% have been granted. Consular posts continue scheduling and interviewing applicants from Travel Ban countries. Attorneys email the waiver “package” to the consular post and send a copy to the interview with the Client. © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS Clients often report that the consular officer refuses to accept waiver package from Client. Thus, emailing the package to the consular post is recommended. Waiver package should address all three prongs of the requirements for a waiver. All waivers are considered on a case-by-case basis. Waiver package should include DS-5535 © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS Undue Hardship. Lower burden than exceptional or extreme hardship used in other immigration statutes. In practice, use the death standard—either the applicant or a related party will die if the waiver is not granted. Immediate relatives—including spouses are not given much weight it appears. © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS Fiancés appear to be given little weight. Not clear that rushing to the altar to get married will make a difference. Invitation by an U.S. organization to exchange ideas appears to be given more weight that medical, psychological, economic, or professional hardships, but include those items as well. © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS National Interest. Little guidance. The Senator Van Hollen letters to DOS and the replies are about as substantive as available. DOS advised that ‘the applicant’s travel may be considered in the national interest if the applicant demonstrates to the consular officer’s satisfaction that 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.” © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS National Security / Public Safety Criterion Consular officers refers the case to the Visa Office for consideration. If the Visa Office concurs, and the other criterion are met, a visa may be issued. © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS Status after visa interview. Denied/Refused. Administrative Processing. Waiver Review Pending. Waiver Approval. © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN AND WAIVERS – THE PROCESS Post-Approval Visa Issuance Continue communications with post, via email, via Congressional correspondence and sheer grit. © 2016 AILA D.C. Chapter Fall Conference

TRAVEL BAN TIPS AND TACTICS Manage Client Expectations. It will take a very long time. Apply at smaller, less busy consular posts for NIVs. Make sure the waiver application documents are tailored specifically to the client’s situation. © 2016 AILA D.C. Chapter Fall Conference

Q & A