Sending Office: Carson (IN), Andre
Sent By:
Charlie.Arnowitz@mail.house.gov

Endorsed by: American Immigration Lawyers Association (AILA)

Dear Colleague,

Please join us in a bicameral letter to the Secretaries of State and Homeland Security requesting information on the administration’s implementation of the Travel Ban (Presidential Proclamation 9645,
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats).

Under the Travel Ban, individuals from affected countries who would otherwise be unable to enter the U.S. may be granted a waiver to do so. The Proclamation lays out specific criteria for individuals to be granted a waiver, and directs the Departments of
State and Homeland Security to adopt appropriate guidance for their consular officers.

Unfortunately, the Administration has not been forthcoming about the waiver process and other aspects of implementation of the Proclamation. Our oversight letter to Secretaries Pompeo and Nielsen asks the Administration key questions regarding implementation
of the Proclamation and the waiver process, and we encourage you to join us.

To join or with questions, please contact
Charlie Arnowitz
(Rep. Carson) at 6-7757 or
Peter Billerbeck
(Rep. Moulton) at  5-8020. Deadline is COB today, October 3.

Sincerely,

Chris Van Hollen                                André Carson                          Seth Moulton

United States Senator                         Member of Congress              Member of Congress

 

Dear Secretaries Pompeo and Nielsen:

We write to request further information on the administration’s implementation of Presidential Proclamation 9645 (PP 9645),
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.

Section 3(c) of PP 9645 authorizes waivers for foreign nationals for whom entry to the United States is limited or suspended. Waivers are to be granted if the foreign national meets criteria, including: (1) when a waiver is “in the national interest,” (2)
when “denying entry would cause undue hardship,” and (3) when entry does “not pose a threat to the national security or public safety of the United States.” The Secretaries of State and Homeland Security are directed to “adopt guidance addressing the circumstances
in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.”

Despite repeated requests from the Congress, the Administration has not been forthcoming with Members of Congress or the American people about the implementation of PP9645. Specifically, the Administration has not clarified the process by which the State
Department determines whether or not an applicant is eligible to be considered for a waiver.

Furthermore, the Administration has not made clear how many visas it has issued to individuals granted waivers. In a letter to Senators Van Hollen, Murphy, and Blumenthal on June 22, the State Department stated it had cleared 768 applicants for waivers as
of May 31, but the Department has declined to provide information on how many “cleared” applicants have actually received visas and extensive public reporting indicates that the number is very low. Likewise, a State Department official told
Public Radio International in August that “as of July 31, 2018, 1,246 applicants from the banned countries were cleared for waivers,” but “would not provide a total number of people who had applied for a visa from the banned countries during that period,
or the number of applicants who were granted a waiver and a visa, as opposed to those who were cleared for them.”

Additionally, a report from Slate on June 15 quoted the sworn affidavit of a consular officer who resigned in March. In the affidavit, the officer stated:

“They gave us a list of things and we would go down the list one by one until we were able to determine at all possible cost that the person was not eligible to even apply for the waiver. My understanding was no one is to be
eligible to apply. … If for some reason an applicant made it through the list and we had no choice but to determine we could find an applicant eligible to apply, regardless of the [Presidential Proclamation] instructions that we had ‘discretion to grant the
waiver,’ we were not allowed to exercise that discretion. We were mandated to send to Washington that we found this applicant eligible to apply and Washington would then make the decision to grant or deny the waiver.”

Given this, we have serious concerns that the waiver process continues to be implemented unevenly and with little guidance—and that waivers granted through the process are not leading to the issuance of visas for cleared individuals. As a result, we request
the following additional information that we hope will shed light on the Administration’s progress in implementing the waiver process by (two weeks from sending):

  1. The number of visa applications received and processed from countries affected by PP 9645 as of October XX, 2018, including:
    1. The total number of applications for nonimmigrant and immigrant visas for each of the identified countries
    2. The number of applicants refused for reasons unrelated to the proclamation for each of the identified countries, disaggregated by basis for refusal
    3. The number of applicants qualifying for an exception for each of the identified countries, disaggregated by basis for the exception
    4. The number of applicants who failed to meet the criteria for a waiver for each of the identified countries, disaggregated by basis for denial
    5. The number of applicants refused under the proclamation with waiver consideration for each of the identified countries, disaggregated by basis for refusal
    6. The number of waivers approved for each of the identified countries, disaggregated by basis for approval
    7. The number of visas issued to individuals granted waivers for each of the identified countries, disaggregated by basis for approval
  2. The number of waivers granted to diversity visa winners from each of the identified countries and the number of visas issued to those individuals.
  3. Any guidance provided to consulates and embassies regarding waiver criteria, including 17 STATE 97682 and 17 STATE 56801.
  4. Did the Secretary of Homeland Security perform the required 180-day review of the listed countries in consultation with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies?
    • If so, what findings or conclusions were reported to the President? 
    • What was communicated to the governments of the affected countries regarding their information sharing and/or security deficiencies as a result of the review and reporting process?
  5. What steps are being taken to publicize information regarding the waiver application process?
    • Have embassies and consulates been instructed to post information regarding application and appeal procedures for waivers on their public websites?
    • Have embassy and consular staff conduct outreach to visa applicants from countries listed under Section 2 of PP 9645 regarding the application and appeal process for waivers?
  6. After a denial, is an applicant’s file held at the embassy or consulate or returned to the National Visa Center?
  7. How does the Department of State adjudicate the “undue hardship” standard without accepting evidence? What is the basis in law for the “undue hardship” standard?

Sincerely,

Chris Van Hollen                                André Carson                          Seth Moulton

United States Senator                         Member of Congress              Member of Congress

 

Hauslohner, Abigail, “Coveted exemptions from Trump’s travel ban remain elusive for citizens of Muslim-majority countries.” The Washington Post, May 22, 2018. https://www.washingtonpost.com/national/coveted-waivers-for-trumps-travel-ban-remain-elusive-for-citizens-of-muslim-majority-countries/2018/05/22/d48cc8d8-48b6-11e8-827e-190efaf1f1ee_story.html?utm_term=.7f2111378236

Jaafari, Shirin, “‘There is real suffering’: How the travel ban is tearing some families apart.” PRI, August 17, 2018. https://www.pri.org/stories/2018-08-17/there-real-suffering-how-travel-ban-tearing-some-families-apart

Related Legislative Issues

Selected legislative information: Foreign Affairs, Homeland Security, Immigration

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