DOS Eliminates Deference Policy on Nonimmigrant Visa Waivers

On 26.Feb.2025, the U.S. Department of State (DOS) issued updated guidance in the Foreign Affairs Manual (FAM) removing the policy that a consular officer’s recommendation for approval of a foreign national’s nonimmigrant visa (NIV) waiver request be consistent with a prior adjudication of the individual’s same waiver. For the benefit of MurthyDotCom readers, we are providing an explanation of the new policy and its implications.

Overview of Nonimmigrant Visa Waivers

Foreign nationals may be deemed ineligible for admission (i.e. inadmissible) to the United States for a variety of reasons, such as medical grounds, criminal grounds, or immigration violations (including fraud or material misrepresentation in connection with an immigration benefit). In most situations, a finding of inadmissibility means that a person cannot enter the U.S. unless that individual obtains a NIV waiver. More details on when a nonimmigrant waiver is needed, and the general process of applying, are available in the MurthyDotCom InfoArticle, Nonimmigrant Visa Waivers – Process and Criteria (05.Jun.2022).

Nonimmigrant Waiver Requests Require New and Independent Consideration

The prior DOS guidance instructed a consular officer to be consistent in NIV waiver recommendations and grant a waiver request if another consular officer previously did so for an individual, unless there was new derogatory information or certain material changes to an individual’s circumstances. The new guidance, however, instructs a consular officer to review each waiver application anew and independently before recommending that a waiver be approved, and an officer cannot give undue deference or rely solely on a previous officer’s decision to recommend a waiver for approval.

Conclusion

The new DOS guidance will create additional uncertainty regarding the adjudication of NIV waivers. Considering the number of factors an officer may take into consideration when reviewing an NIV waiver, it is important to prepare a strong waiver application prior to arriving at the consular post. Visa applicants who require assistance with this process are encouraged to schedule a consultation with a Murthy Law Firm attorney.

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