Waivers: INA § ‍237(a)(1)(H)

The Board of Immigration Appeals (BIA) issued a decision (Matter of Forjoe, 29 I&N Dec. 463 (BIA 2026) today deciding that the waiver under INA § 237(a)(1)(H) cannot be used to waive fraud and misrepresentations occurring at "the time of adjustment of status."

In other words, "at the time of admission," according to the BIA, relates to "an alien's lawful entry into the United States after inspection and authorization by an immigration officer." The decision overrules Matter of Agour, 26 I&N Dec. 566 (BIA 2015) which reached the opposite conclusion.

Perhaps the most interesting aspect of the decision is the Board's use of Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 407 (2024) for the proposition that "reexamination of a precedent's reasoning may be warranted, notwithstanding the doctrine of stare decisis." Matter of Forjoe at 466.

The Board asserts that it "has a duty to ensure that its precedent follows current law, and limiting [the Board's] review of precedential decisions to cases in which an issue was directly on appeal could prevent erroneously decided issues from coming before [it]." Id.