ARO's Recent Interpretation of Non-Immigrant Waivers Requiring Specific Non-Immigrant Status

The Admissibility Review Office (ARO) is the office within U.S. Customs & Border Protection (CBP) responsible for adjudicating non-immigrant waivers of inadmissibility under INA §212(d)(3) from all over the world,  whether the waiver request be from a Canadian citizen filing Form I-192 or from a foreign national who has received a favorable recommendation for a non-immigrant waiver from their Consulate in conjunction with their non-immigrant visa application.

In recent months, the ARO has started taking the position that even if you have a valid unexpired non-immigrant waiver, you may not be able admissible to the United States unless your waiver specifically allows for admission in the status you are seeking to enter.  For example, let’s say a foreign national is in possession of a valid non-immigrant waiver for the general purpose of for “business visits (B-1) or pleasure (B-2)”.  Now let’s assume that the foreign national has an exciting employment opportunity in the U.S. and wishes to enter the U.S. in H-1B, TN or L-1 status.  Well, given the ARO’s current stance, that foreign national will now need to apply for a new waiver, specifically allowing them to enter in the applicable non-immigrant status they are seeking, whether it is H-1B, TN or L-1, etc.

This is a deviation from previous practice which held that if you were approved for a waiver and had therefore demonstrated your eligibilities under the factors in Matter of Hranka, it didn’t really matter what the foreign national’s reason for coming into the United States was because that’s not what the law requires.  Once the foreign national had the waiver, it was up to the inspecting CBP officer to determine whether the foreign national was indeed eligible to enter the United States in the non-immigrant status which they were seeking.  However, not all CBP Ports-of-Entry are going along with this current interpretation. 

Notably, this recent interpretation will mostly adversely affect Canadian citizens, who are generally visa-exempt and can therefore circumvent the consular process.  For all other foreign nationals, since entry into the U.S. requires a specific non-immigrant visa, and their non-immigrant waiver approvals are annotated on their non-immigrant visa itself (i.e. B-1/B-2, H-1B, etc.), this change in interpretation is unlikely to disrupt their travels to the United States. 

Therefore, based on the ever changing policy interpretations, it is important for foreign nationals to consult with an experienced immigration attorney to discuss their waiver objectives (i.e. short-term and long-term goals for the United States) before submitting a non-immigrant waiver application.