Two groups of immigrants are involved in lawsuits challenging the application of President Trump’s travel ban. A group of Yemenis and Iranians who won the U.S. diversity lottery but were nevertheless barred from entering the country are suing in Washington, D.C. Here in San Francisco, a group of 36 plaintiffs argues that the waiver process in the travel ban is a sham.

As we discussed in June, the U.S. Supreme Court upheld the third version of President Trump’s travel ban. The ban prohibits most nationals of Iran, Yemen, Syria, Somalia and Libya, along with certain officials from Venezuela and North Korea, from traveling to the U.S.

However, otherwise-eligible people were supposed to be able to apply for a travel ban waiver from consular officials. These were allegedly available to those who pose no national security threat when a denial would cause “undue hardship” and their entry would “be in the national interest.”

In the San Francisco case, the 36 plaintiffs contended that being denied waivers has resulted in significant hardships, such as:

  • Kept sick and dying people from visiting their children in the U.S.
  • Prevented people from attending their children’s weddings and births of grandchildren
  • Blocked scientists from working at U.S. universities
  • Denied EB-5 investor visas to people who had invested $500,000 or more in U.S. businesses

The plaintiffs argue that the travel ban waiver process is a sham. As of Jan. 18, 2018, the State Department had only granted two waivers out of 6,500 applications. The agency later claimed to have granted 100 waivers, but that still equates to a denial rate of over 98 percent.

The plaintiffs claim that the U.S. has set up a waiver policy to give the illusion of fairness but provides cover for consular officials to reject almost every waiver application. Without a fair and usable waiver process, however, the constitutionality of the travel ban could be called into question.

Diversity lottery winners may still be banned

In an appeal before the D.C. Circuit Court of Appeals, four winners of the 2017 diversity lottery who were kept out by the travel ban have asked the courts to order the State Department to issue the visas they won. Winners of the diversity lottery are heavily vetted and must meet all requirements for a visa.

The Justice Department argues that the courts have no authority to overrule individual immigration decisions and that the State Department has denied the visas. The judges seemed skeptical that they could intervene for the plaintiffs and implied that an appeal to the Supreme Court might be necessary.

If you have been affected by the travel ban, contact Yew Immigration Law Group for more information about your options.