When the Consular Officer Does Not Want to Forward a Favorable Non-Immigrant Waiver Recommendation to the Admissibility Review Office (ARO)

In order for a foreign national to be approved for a U.S. non-immigrant visa, the foreign national must not be inadmissible to the U.S. under INA §212.  For those foreign nationals that are inadmissible under INA §212, the Consular Officer may recommend that the foreign national be approved for a non-immigrant waiver of inadmissibility under INA §212(d)(3)(A)(i), which waives many of the enumerated grounds of inadmissibility.  A detailed explanation of this process is available here.

If the Consular Officer favorably recommends the foreign national’s waiver application – perfect! Now the foreign national can wait until the application is adjudicated by the Admissibility Review Office (ARO). 

However, what can a foreign national do when the Consular Officer is unwilling to recommend them for the non-immigrant waiver?   In that case, even though the Consular Officer does not believe that a waiver should not be granted, the foreign national can ask that the Consular Officer submit the case to the Visa Office (VO) for an Advisory Opinion.  The VO has independent authority to recommend such a waiver to the ARO and may choose to do so over a Consular Officer’s objection. 

Notably, the Consular Officer does not have the discretion to deny the foreign national’s request for an Advisory Opinion from the VO.  See 9 FAM 40.301 N6.2However, the Consular Officer may submit a recommendation to the VO with an explanation of the reasons that they are objecting to the favorable recommendation of the non-immigrant waiver.