"Of the 8,406 applications
for nonimmigrant and
immigrant visas, only two
waivers were granted as of
Feb. 15, 2018."
Lastly, the Senators also requested detailed statistics,
which include the total number of applicants (as of April
18, 2018) for nonimmigrant and immigrant visas, the
number of applicants “refused under the proclamation
with waiver consideration” and the total number of waivers
approved. Of importance is that the senators in their
April 19, 2018 letter point out inconsistencies with State
Department’s reporting of actual approved waivers; as
stated above, the State Department reported only two
approved waivers as of February 15, 2018 by their letter
dated February 22, 2018 to Senators Van Hollen and Flake.
However, in a later interview less than two weeks later with
Reuters, State Department asserted that they had issued
“around 100 waivers.” Therefore, the senators have asked for
more comprehensive, complete and accurate statistics from
the State Department by April 30, 2018.
As the legal community anxiously awaits updated statistics
from the State Department, we should bear in mind that even
if there were 450 waiver approvals as of April 19, 2018, if we
consider the rate of applicants to be similar to those from
2016, for a period of 4-5 months, we project the total number
of applicants to be well over 20,000 individuals from the
affected countries.
Therefore the rate of individuals entering United States from
the affected countries appear to hover around 1-3 percent. On
April 10, 2018, Chad was taken off of the list of countries under
Travel Ban 3.0 as it has “improved its identity-management
and information sharing practices” according to White House
press secretary Sarah Huckabee Sanders. However, it is widely
believed that the travel ban is discriminatory in nature, fueled
by animus from Trump’s administration. Said animus has
resulted in marginalization of a group of minorities, a majority
of whom are Muslims.
The arguments used by opponents of the travel ban at the
appellate and Supreme Court levels allege violations of the
Establishment Clause, Equal Protection Clause, Due Process
Clause and Administrative Procedure Act. In contrast to the
long-standing U.S. visa program rules and regulations in place
through INA and FAM, there is no requirement that applicants
who are denied Section 3(c) waivers be advised of the reason
for the denial. And unlike the visa program, there are no
supervisory reviews or procedures to seek reconsideration.
Furthermore, immigration practitioners are discovering
that the intending immigrants are often not advised of the
possibility that a waiver may be available to them. In fact,
different visa applicants under identical circumstances are
often treated differently at U.S. consular posts, in that some
are advised that a waiver process is “available” to them,
while others receive the 212(f) rejection where the first box is
checked, indicating they are denied and no waiver is available.
Therefore, the waiver process appears to be vague, ad hoc
and subjective in nature.
Oftentimes, the lawyers of represented applicants are given
little or no feedback, other than parroting the language of the
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