Travel Ban Impact on Visa Issuances: Data Report on Pre- and Post-travel Ban Visa Issuances to Select Affected Countries
| Publication year | 2019 |
Mahsa Khanbabai*
Abstract: Presidential Proclamation 9645, also known as the Muslim Travel Ban, was upheld by the U.S. Supreme Court majority decision in Trump v. Hawaii in large part due to the ability to apply for a "waiver" of the travel restrictions. However, visa data from the State Department indicates that the waiver process is indeed "window dressing," as the dissent had opined. This article intends to equip attorneys with visa data points, and highlight areas where critical data is missing, to assist in advising clients and advocating for more transparent waiver processing.
Background
On September 24, 2017, President Trump signed Presidential Proclamation 9645, the administration's third attempt at imposing travel restrictions on Muslim-majority nations. This iteration of the travel ban imposed blanket restrictions on immigrant visas and varying types of nonimmigrant visas for nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, and Yemen, while also restricting B visas to certain Venezuelan government officials and their families.
As with the previous iterations, the ban was immediately contested by states and outside advocacy groups. On October 17, 2017, the U.S. District Court for the District of Hawaii temporarily blocked the order while litigation proceeded. The Trump administration appealed to the Supreme Court to allow the ban to take full effect while the case was litigated. On December 4, 2017, the Supreme Court granted the request, and the travel ban was fully implemented. The Supreme Court eventually upheld the ban's constitutionality in a 5-4 ruling on June 26, 2018, in Trump v. Hawaii, No. 17-965, 585 U.S. ___, 138 S. Ct. 2392 (2018). Before the ruling, the administration removed the travel restrictions on Chad on April 10, 2018; the restrictions on the rest of the countries remain unmodified.
Table 1, from the Department of State (DOS), breaks down the restrictions by country. Of the seven countries, only two face complete bans on visa issuance: North Korea and Syria. While the rest have visa classes that aren't technically subject to the ban (for example, F and J visas for Iranians), the proclamation specifies that applications for these allowed visa classes should still be subject to enhanced vetting procedures.
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Table 1
| Country | Nonimmigrant Visas | Immigration and |
| Iran | No nonimmigrant visas except F, M, and J visas | No immigrant or diversity visas |
| Libya | No B-1, B-2, and B-1/B-2 visas | No immigrant or diversity visas |
| North Korea | No nonimmigrant visas | No immigrant or diversity visas |
| Somalia | No immigrant or diversity visas | |
| Syria | No nonimmigrant visas | No immigrant or diversity visas |
| Venezuela | No B-1, B-2, or B-1/B-2 visas of any kind | |
| Yemen | No B-1, B-2, and B-1/B-2 visas | No immigrant or diversity visas |
Source: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html.
Overview
This report presents a collection of DOS visa issuance data for five of the seven countries subject to the ban: Iran, Libya, Somalia, Syria, and Yemen. North Korea is excluded because it already had a limited number of visas each year due to internal restrictions on travel, meaning the travel ban has had an indiscernible effect. Venezuela is excluded because the ban applies to only a very small and specific group of government officials and their families.
The data for this report comes from https://travel.state.gov/content/travel/en/legal/visa-lawO/visa-statistics.html. More specifically:
- Report of the Visa Office, 2008-2017 (above link):
• Table XVII: Nonimmigrant Visas Issued by Classification and Nationality (Including Border Crossing Cards)
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• Table XVIII: Nonimmigrant Visas Issued by Nationality (Including Border Crossing Cards)
- Monthly Immigrant Visa Issuance Statistics: IV Issuances by FSC or Place of Birth and Visa Class, March 2017-August 2018 (https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/immigrant-visa-statistics/monthly-immigrant-visa-issuances.html)
- Monthly Nonimmigrant Visa Issuance Statistics: NIV Issuances by Nationality and Visa Class, March 2017-August 2018 (https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics/monthly-nonimmigrant-visa-issuances.html)
This report provides aggregate data on all five countries before providing separate sections for each individual country's visa data. As Iran, Libya, and Yemen have restrictions on some nonimmigrant visa types but not others, their sections will go into more detail in order to display the different trends in the banned and non-banned visas. The visa reports do not contain information on travel ban waiver and exemption numbers, so the numbers for banned visa categories do not differentiate between the two and do not serve as effective data for either. Note that the U.S. Citizenship and Immigration Services' fiscal year runs from October 1 of the year before through September 30 of the label year; thus, FY 2018 ran from October 1, 2017, through September 30, 2018.
Data Limitations
The visa issuance data posted by DOS allows for analysis of the impact of the travel ban on broad visa issuance trends. Unfortunately, the data is not specific enough to enable a complete analysis of the ban's effects on immigration from the targeted countries. The visa issuance data does not include, for example, the number of visa applications from the affected countries, the number of visas issued in the banned categories because the applicant qualified for an exemption, the number of visas issued to banned categories because the applicant was granted a waiver, etc.
As an example of why these shortcomings are significant: DOS data shows that 753 nonimmigrant visas (NIVs) were issued to Iranians in August 2018 compared to 1,776 in August 2017. It cannot be determined from these numbers alone if this decrease is solely due to the travel ban or if there are other additional explanatory factors, such as fewer applications received.
DOS has made only nominal efforts to address these shortcomings and provide specific data to legislators and the public regarding visa applications and issuances affected by the travel ban. The data disclosed by DOS to legislators generally includes the following categories:
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1. Number of NIV and immigrant visa (IV) applications from affected nationalities who applied for visas in the Presidential Proclamation 9645 (P.P. 9645) covered categories.
2. Number of applicants found ineligible for reasons other than those covered in P.P. 9645, so a review for eligibility was not required.
3. Number of applicants who received a visa under an exception from P.P. 9645.
4. Number of applicants "cleared for waivers."
5. Number of applicants interviewed but still awaiting a determination on a waiver.
While these numbers provide some useful information, they leave a great deal of ambiguity about the effect of the travel ban and its procedural application. For example, DOS disclosed that as of December 31, 2018, it had cleared 2,535 applicants for a waiver, but it does not define the phrase "cleared for a waiver." Additionally, "number of applicants cleared for waivers" is not the same as "number of applicants granted waivers," and does not tell us how many of those applicants have actually received their visas. Most importantly, we do not know how many applications are still pending or how many were denied for failure to meet the waiver criteria.
Further, the numbers provided are aggregated from December 8, 2017, through the end of the most recent month, meaning they are not in parallel time units (months, fiscal years) to other visa issuance data and can therefore not be compared. If DOS released the travel ban data by month, it would be possible to compare "number of applicants cleared for waivers" in a given month and "number of applicants who received a visa under an exemption" for that month to the already published visa issuances that month, giving a clearer idea of how many applicants subject to the ban receive visas.
The lack of transparency from DOS regarding travel ban waivers has made it difficult for immigration attorneys to offer precise and effective guidance to clients from targeted countries. As it stands, it is difficult to answer even some of the most basic questions regarding the process, such as "how long will it take?" and "what are my chances of success?" The confusion is part of the administration's broader strategy to not only deny more cases from the targeted countries, but to discourage individuals from even applying. Thus, it becomes difficult to establish and manage client expectations, even when attorneys are reasonably confident that they can successfully pursue a travel ban waiver.
Conclusion
For the purposes of increased transparency and more robust data, we recommend that DOS make the following improvements to their P.P. 9645 visa data releases:
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1. Provide monthly numbers; break down the current aggregated numbers by month, and release future data in a monthly format parallel to DOS's other visa issuance reports....
2. Provide country-specific numbers; break down the current numbers by country, and continue doing so for future releases parallel to DOS's other visa issuance reports.
3. Provide visa-category-specific numbers; break down the
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