Trump's Ban and the "Undue Hardship" Waiver
On December 4, 2017 the
Supreme Court ruled that Trump's
Executive Order banning individuals from Iran, Libya, Syria, Yemen, Somalia, Chad and
North Korea along with some people from Venezuela would go back into effect,
pending litigation in the
Ninth Circuit and
Fourth Districts. The
ruling by the Supreme Court, however, signals the ban is constitutional based
on the broad powers of the President to effectuate foreign policy and
protect national security.
If you are national of the countries effected by the ban, understand the
ban allows for a waiver determined on a case by case basis. Specifically,
the executive order allows for a waiver for individuals who face "undue
hardship." The exact text of the executive orders states:
(c) Waivers. Notwithstanding the suspensions of and limitations on entry
set forth in section 2 of this proclamation, a consular officer, or the
Commissioner, United States Customs and Border Protection (CBP), or the
Commissioner's designee, as appropriate, may, in their discretion,
grant waivers on a
case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended
or limited if such foreign nationals demonstrate that waivers would be
appropriate and consistent with subsections (i) through (iv) of this subsection.
The Secretary of State and the Secretary of Homeland Security shall coordinate
to adopt guidance addressing the circumstances in which waivers may be
appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.
(i) A waiver may be granted only if a foreign national demonstrates to
the consular officer's or CBP official's satisfaction that:
(A) denying entry would cause the foreign national undue hardship;
(B) entry would not pose a threat to the national security or public safety
of the United States; and
(C) entry would be in the national interest.
What is Undue Hardship?
There is little guidance on how consular posts will determine what constitutes
an "undue hardship" to the foreign national. However, the
Law Office of Ashkan Yekrangi has prepared successful waiver documentation for individuals of the effected
nations that highlights all possible hardships to the foreign national,
and if applicable, any hardship the foreign national's relatives or
employers will face. Some people have refferred to this hardship waiver
as a hardship letter or hardship packets, but it is an indepth anlysis
of each person's personal circumstances and the hardships they face.
Please contact our
Immigration law office if you are scheduled for an interview and need a waiver, or if you are
at the first stage of a
immigrant or nonimmigrant visa application.