As one of his first official acts, Donald Trump delivered on a campaign promise to ban citizens of certain countries from gaining entry to the U.S. by his Presidential Proclamation 9645, titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats.” This Executive Order which eventually got to be known as the “travel ban” went through several incarnations until SCOTUS gave its blessing to its final version back in 2018.
Currently, nationals of seven countries; Iran, Syria, Libya, North Korea, Somalia, Venezuela, and Yemen are subject to the ban. In most cases, visa applicants from these countries have to also apply for a waiver of the ban which may take months if not years to be approved if at all.
There are no forms for this waiver. Applicants will have to meet a three prong test. First, they will have to prove that not getting a waiver will cause hardship to self, a U.S. citizen family member, or otherwise a U.S. entity. Second, the applicant will need to show that a grant of waiver is in the interest of the U.S. Third, and perhaps most importantly, before issuing the visa, the consular officer will have to have approval from Washington that a grant of waiver will not threaten the national security of the U.S.
The process for obtaining a waiver has been turbulent. Cases are still treated differently at various consulates. The rate of denial, even now, is north of 70%. The difficulty in seeing family and loved ones, parents, grand parents, children, and even spouses, has resulted in much heartache and missed birthdays, weddings, and funerals.
Consular officers have always been equipped with laws and almost absolute discretion on how and when to issue visas. The doctrine of consular visa non-reviewability refers to the fact that decisions made by visa officers are for the most part final. An arbitrary ban based on one's nationality is not only fundamentally unfair, but also counterproductive. Having applicants prove arbitrary measures such as hardship and benefit to the U.S. is insulting to human intelligence. Furthermore, the national security prong of the waiver has always been a factor in visa application adjudications and is therefore unnecessary. America does not ban people and its time for the travel ban to be tossed in the dustbin of history.