As legal challenges to the travel ban continue in lower courts, the U.S. Supreme Court decided–on December 4, 2017–to allow the most recent (third) travel ban to be fully implemented until litigation is completed. The restrictions previously put in place by federal judges in Hawaii and Maryland, i.e., that the ban would not apply to travelers from Chad, Iran, Libya, Somalia, Syria, and Yemen who have a “bona fide” relationship with relatives or institutions in the United States, were lifted by the Court and the September 24, 2017 quietly went into full effect.
A brief, albeit tedious, background on the immigrant visa process (because, well, immigration law is tedious): In order to apply for an immigrant visa, the petitioner (a U.S. citizen or Lawful Permanent Resident) files a visa petition (Form I-130) for their relative beneficiary. If USCIS determines that the relationship between the petitioner and the beneficiary is genuine, the petition is approved and – in the case of an immediate relative (spouse, parent or child) of a U.S. citizen, the file is immediately transferred to the National Visa Center to begin processing the paperwork for the visa interview at a U.S. embassy or consulate outside of the United States. Once the NVC paperwork is completed, the embassy or consulate schedules an appointment for the beneficiary to appear for an in-person interview. Ideally, shortly after the interview, the beneficiary receives an immigrant visa which allows them to enter the U.S. as a Lawful Permanent Resident (and their green card is mailed to them once they are here). Seems simple enough, right? Not if the visa applicant is from Yemen, and not if the full travel ban is in effect.
One of my U.S. citizen clients filed a visa petition for his Yemeni spouse, which was approved rather quickly, and the file was forwarded to the National Visa Center to process her paperwork prior to forwarding the file abroad for an immigrant visa interview. Since the U.S. Embassy in Sana’a, Yemen, has been closed since February 10, 2015, however, Yemeni visa cases are adjudicated in Djibouti or Malaysia. At the NVC, we submitted the documents in a matter of weeks, and requested that the case be expedited for a specific reason – the petitioner’s son had just been diagnosed with a potentially life-threatening illness (leukemia) in the U.S. and his stepmother (the spouse of the U.S. citizen) wanted to be by his side while he underwent aggressive chemotherapy. The embassy in Djibouti agreed to expedite the case, and we were thrilled when the spouse received her visa interview at the end of October.
So that his wife would not have to travel alone by boat to Djibouti, nearly two months before the immigrant visa interview, the U.S. citizen spouse flew to Egypt, where he met his wife and, for the next few weeks, worked on obtaining their visas to Djibouti (from the Djibouti Embassy in Cairo, as the one in Sana’a had closed). Once their visas were finally granted, the couple flew to Djibouti, where we continued to prepare for her upcoming interview.
We were excited during this time because, although the third travel ban applied to her, the lower courts’ injunctions meant that she would qualify for an exemption as the spouse of a U.S. citizen. After the interview, I received a WhatsApp message from my clients letting me know that the interview went perfectly but they were given a piece of paper and told to keep checking online for a decision on the visa. My heart sank, as this meant that the case had been put into the black hole of “administrative processing,” common for Yemeni cases. Administrative processing is a period in which visa applicants undergo additional review. Although the U.S. Department of State indicates that most administrative processing is usually resolved within 60 days, in reality it can take many months.
Nearly two months later, the case remains in administrative processing. The Supreme Court’s December 4 order lifted the lower courts’ injunctions so that the travel ban is in full effect – meaning the beneficiary spouse no longer qualifies for the bona fide exemption. Theoretically, the ban includes a waiver for visa applicants who can prove that: issuance of their visa is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship. But what we have been seeing since December 4 is that the U.S. Embassy in Djibouti is categorically handing out denials to all pending Yemeni cases, a directive clearly coming from above. Since December 4th, I have not heard of even one waiver being granted in Djibouti.
My clients are still in Djibouti – a very expensive country – completely in limbo. We have prepared and filed a waiver for the immigrant spouse, which we know – based on what we are witnessing – has little chance of being approved. The U.S. citizen refuses to leave his wife alone while she awaits her inevitable denial, but he is separated from his child in the U.S. who is battling leukemia. Even with a resolution of the case (a denial), the wife will have to return to Yemen, where the war continues to escalate and the humanitarian disasters are insurmountable, indefinitely separated from her family.
Meanwhile, on December 22, 2017, the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that the third travel ban violates federal law, finding that “the [ban’s] indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas.” Unfortunately, this order has no immediate practical effect on the situation for Yemenis in Djibouti, and others like them, because the decision is on hold until litigation is completed in the Supreme Court.
This scenario is exactly what this administration wanted – as litigation moves slowly through the federal courts, individuals abroad are quietly being denied visas to join their families in the U.S. The token waiver included in the travel ban is a farce – the Secretary of State and Secretary of Homeland Security were charged with adopting guidance for the waivers; as far as I’ve seen, the only public guidance is a list of “Frequently Asked Questions” that sheds little light on the waiver process or requirements. Meanwhile, as my clients and countless others await their visa refusal letters in Djibouti (and other countries), U.S. airports are back to normal, the streets are quiet, and Congress sits idly by.
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.
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