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Trump's Ban and the "Undue Hardship" Waiver


Trump's Ban and the "Undue Hardship" Waiver

UPDATE: On June 26, 2018 the Supreme Court ruled in favor of the "Trump Ban" (Trump v. Hawaii). This now allows the ban on travel from five predominantly Muslim countries to stand. As a result, millions of people in the foreseeable future cannot enter the United States unless they are granted an individual waiver. The waiver is reserved for those who can illustrate they would suffer “undue hardship” if denied entry; their entry is not a threat to the security of the US; and that their entry is in the national interest. Please contact our office immediately if you, friend, or family member is interested in applying for this 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 Yekrangi & Associates 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.

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