Washington, DC – Pending for almost two years, an employment visa petition filed by the University of Nebraska – Lincoln (“UNL”) on behalf of Dr. Waskar Ari, a Bolivian historian whom the university seeks to hire as an Assistant Professor of History and Ethnic Studies, was finally approved by the Department of Homeland Security (“DHS”) after a lawsuit to compel action was filed in federal district court. Dr. Ari now must apply for a visa at the U.S. Consulate in La Paz, Bolivia where visa issuance is by no means assured.

The suit, a complaint for writ of mandamus, sought to compel the DHS to act on UNL’s H-1B employment visa petition. DHS finally acted, thus avoiding a federal judge to order it to do so. Approval of the H-1B visa petition, however, is merely the first step in securing Dr. Ari’s admission into the United States. Dr. Ari now must apply for and prove his eligibility for the actual visa when he appears before the U.S. Consulate in La Paz, Bolivia, and it is during this step in the visa issuance process that extensive security checks could delay his entry indefinitely.

At the heart of this suit filed on March 2, 2007 are issues that implicate the First Amendment, academic freedom, and an unlawful approach to background checks for foreign academics. The suit asserted that the DHS lacked authority to withhold or delay action on UNL’s petition for Professor Ari. It also alleged that background checks being conducted by the DHS are not authorized by law, and that the only issue in this particular H-1B petition is whether UNL, the petitioner, had satisfied the requirements to classify Professor Ari as an eligible recipient of H-1B status. In any event, 22 months is more than sufficient time to conclude background checks on a Bolivian academic who seeks merely to teach in the United States.

Professor Ari, a member of the Aymara indigenous group of Bolivia, is an expert on the history of indigenous peoples, particularly in his native Bolivia, where populist indigenous President Evo Morales is viewed with suspicion by the Bush Administration. Professor Ari’s appointment was to commence in August 2005; UNL’s H-1B petition was filed under a DHS procedure that guarantees a decision within 15 business days. However, the University’s visa petition for Professor Ari had been pending for unspecified “security checks” – seemingly delayed indefinitely – since June 2005 when the suit was filed.

During the course of this case, many national and international organizations urged the U.S. Government to issue the visa, expressing concerns over the chill imposed on academic freedom by the DHS’s conduct. In fact, Professor Ari is one of a growing number of foreign scholars whose visas have been revoked or whose applications have been denied or delayed, thus barring their entry into the U.S. based on their ideology or political views. The highest profile case is that of Tariq Ramadan, a prominent Swiss Islamic scholar whose visa to teach at the University of Notre Dame was revoked by the government in 2004. When Ramadan applied for a visa that would have allowed him to enter the U.S. for speaking engagements and the government failed to act on it, the American Civil Liberties Union (ACLU), along with other organizations, filed a lawsuit challenging the government’s inaction. Ultimately, a federal judge ordered the government to act on his visa request.
The ACLU is tracking many cases, including Professor Ari’s, in which it believes foreign nationals have been banned from entering the United States owing to their beliefs. Although the government rarely gives a reason for these exclusions, the ACLU reports that many exclusions appear ideologically-motivated and that academics increasingly are being interrogated about their political beliefs when they apply for visas. In this instance, Professor Ari may be wrongly linked to the indigenous movement led by Bolivian President Evo Morales. A supporter of Venezuelan President Hugo Chavez and the first Indian President of Bolivia, Morales also is an outspoken critic of the Bush Administration’s policies in the region.

The case, University of Nebraska v. Chertoff, et al., Case No. 1:07-cv-421, was filed in the United States District Court for the District of Columbia. UNL was represented in this action by attorneys Michael Maggio and Thomas Ragland of Maggio & Kattar in Washington, D.C. Copies of the complaint and exhibits are available from Maggio & Kattar.