On September 24, 2017, President Trump issued an executive order extending and amending the travel restrictions he previously imposed in March. (See "Who Does the September, 2017 Travel Ban Executive Order Impact?" for details.) If you or a loved one cannot enter the United States due to the travel ban, a waiver may be available under certain conditions, allowing you to enter the United States despite the ban.
When Can I Apply for a Waiver of the Travel Ban Restrictions?
The September 2017 executive order has a two-phase rollout. The first phase extends the previous travel ban and its associated guidance through October 17, 2017 (except that the restrictions on Sudan ended on September 24, as the administration removed it from the travel restriction list).
Under this previous travel ban, a waiver is available for those who would experience undue hardship subject to certain conditions, and those who have a "bona fide" relationship with a person or entity in the United States.
On October 18, 2017, phase two of the September 2017 executive order begins. At this time, the previous waiver rules and the associated "bona fide" relationship exception expire. You will be able to apply for a waiver pursuant to the September 2017 executive order, as described in this article, as of October 18, 2017.
Who Can Grant a Waiver of the Travel Ban Restrictions?
The executive order does not set out precise instructions to apply for this waiver, but it does indicate that a consular officer or a designated officer of U.S. Customs and Border Protection (CBP) can issue the waiver. This means that you should be prepared to demonstrate how you qualify for a waiver at your visa interview at the U.S. consulate abroad, and at the time you enter the United States and speak to a CBP officer.
Who Qualifies for a Waiver of the Travel Ban?
The September 2017 executive order lays out specific conditions under which consular and CBP officers can grant a waiver. The waiver is discretionary, which means that no applicant is legally entitled to a waiver—it’s up to the opinion of the person deciding your case. A waiver can be granted to an applicant for a visa or entry into the United States only if:
- denying entry would cause the applicant undue hardship
- entry would not pose a threat to national security or public safety, and
- entry would be in the U.S. national interest.
Notice that the requirements are joined by "and," so you must demonstrate all three aspects to the officer in order to qualify.
The executive order goes on to list several examples of appropriate situations for a waiver to be issued for a visa or entry into the United States, including to an applicant who:
- was previously legally admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States when the executive order goes into effect, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity
- has previously established significant contacts with the United States but is outside the United States for work, study, or other lawful activity when the executive order goes into effect
- seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations
- seeks to enter the United States to visit or reside with a close family member (such as a spouse, child, or parent) who is a U.S. citizen, lawful permanent resident, or alien lawfully admitted on a valid temporary visa, and the denial of entry would cause the applicant undue hardship
- is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by special circumstances
- has been employed by, or on behalf of, the U.S. government (or is an eligible dependent of such an employee), and has provided faithful and valuable service to the U.S. government
- is traveling for purposes related to a designated international organization traveling for purposes of conducting meetings or business with the U.S. government, or traveling to conduct business on behalf of an international organization
- is a citizen of an affected country and is also a Canadian permanent resident who applies for a visa at a location within Canada
- is traveling as a United States Government-sponsored exchange visitor, or
- is traveling to the United States at the request of a U.S. government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
Note that this waiver addresses only situations where someone is ineligible for a visa or to enter the U.S. based on the travel restrictions set forth in the executive order. All other standard requirements for visa issuance and admission still apply to your application, and you may require a separate waiver if you do not meet those requirements.
Waivers are issued on a case-by-case basis, and the executive order prohibits consular and CBP officers from issuing waivers to groups or categories of applicants.
How Do I Apply for a Waiver?
In order to apply for a waiver of inadmissibility due to the September 2017 executive order, you should apply for a visa at the consulate abroad according to the normal procedures. Gather and bring documentation to prove that you meet the three conditions listed at the beginning of the previous section.
If there are any confusing or unusual aspects of your situation, you may want to write a letter for the officer to keep in your file explaining those aspects, in case the officer needs to hold your file for further review after the interview.
At the interview, you should thoroughly explain how you meet the three required conditions. Matching one of the ten examples listed above is not necessary, but it may help demonstrate your qualification. Even if you match one of the ten examples, that by itself is not sufficient—you still must prove how you meet the three primary conditions.
If the consulate grants the waiver and issues a visa to you, CBP officers might still ask similar questions at the border when you enter, so you should carry a copy of all evidence when you enter the United States.