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.

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My wife and I accumulated several years of unlawful presence, what options are available to us to visit the U.S. now?

Dear SRW Border Lawyes,

Question: My wife and I are both Pakistani citizens. We first met in the U.S several years after we entered on our B1/B2 visas (at different times).  We ultimately overstayed our visas due to the widespread instability in Pakistan at the time. After we met, we got married, had three children, and lived in the U.S. for 10 more years.

In 2006, after several attempts to gain legal status in the U.S., my wife and I landed in Canada. We have remained in Canada ever since. I have tried several times to apply for a B1/B2 visa to visit the U.S. for business and pleasure, but I have been denied both times.

What options are available to my wife and me to enter the U.S?

Answer: Thank you for your question. Based on the information you provided, it appears that you and your wife entered the U.S. and overstayed your B1/B2 visas. As you may know, once you and your wife overstayed your visas, you both began to accumulate what is referred to as unlawful presence. I cannot say for certain if your unlawful presence was the sole reason for your recent B1/B2 visa denials, but it was most likely a factor. You will have to address your unlawful presence issue if you desire to enter the U.S. anytime soon.

INA § 212(d)(3)(A)(i) Waiver

Moving forward, if you would like to enter the U.S., you will need to apply for a 212(d)(3)(A)(i) waiver to overcome your unlawful presence. Based on the amount of time you were unlawfully present in the U.S., you and your wife are subject to the 10-year bar pursuant to INA § 212(a)(9)(B)(i)(II). The (10) ten-year bar is applied to individuals who have been unlawfully present in the U.S. for a period of one year or more and who seeks admission within 10 years of his or her departure.


If you have an urgent reason to enter the U.S., however, a 212(d)(3)(A)(i) waiver may not be the best option for you. Currently, the processing time for waivers by the Admissibility Review Office (ARO) has been delayed due to understaffing. Therefore, foreign nationals with waivers currently pending beyond normal processing times, and who have an urgent need to enter the U.S., apply for what is referred to as parole. Parole is a legal fiction that allows for the physical entry of an individual into the United States without actually "admitting" him or her into the country. Parole is commonly used to allow otherwise inadmissible individuals to enter the country for specific reasons, for a limited period of time and usually involves a degree of urgency.

Form I-192 Nonimmigrant Waiver - Canadians

You indicated in your question that you and your wife are currently landed permanent residents of Canada. Another possible option is to become Canadian citizens. After becoming Canadian citizens, you and your wife may apply for I-192 waivers pursuant to INA § 212(d)(3)(A)(ii) to overcome your unlawful presence. While the discretionary factors remain the same in determining eligiblilty for the Form I-192 waiver, one benefit is that the I-192 waiver application is submitted directly to Customs and Border Patrol (CBP) for adjudication and does not require initial recommendation by a consulate. 

To better understand what option may be best for you and your wife, please call our office and make an appointment to speak with the SRW Border Lawyer Team.