Dear Atty. Lou,
I am a Canadian citizen, with an American husband, who admitted past drug use (marijuana, which although technically illegal in Canada, use of which is very rarely prosecuted) on my medical interview, thinking that my use of it was so insignificant it would not be considered a threat (up until my interview, January 21st 2009 I used it maybe 2-3 times a year, and by ‘use’ I mean took a puff of a joint passed at a party). I’m sure you know what happened next.
I was denied and told I have to show three years of sobriety before I can apply again. The worst part of this so far (other than the fact that they made me wait four months and pay $300 to find out I’m inadmissible instead of telling me up front at the medical) is that NO ONE will tell me what I have to do next, only that I have until January 21st, 2010 to do it. The deadline is approaching now, and I still haven’t a clue how I’m supposed to prove to them I’m sober. Can you give me any information on the rest of this process? I’ve sent three emails to the consulate but have only received form letters from them stating basically that “it’s not personal”, without giving any of the information I’ve requested.
Confused User
Dear Confused User:
Section 212(a)(1)(A)(iv) of the Immigration and Nationality Act clearly bars a person who is determined to be a drug abuser or addict from receiving an immigrant or non-immigrant visa. The implementing regulations define “drug abuse” as the non-medical use of a substance listed in section 202 of the Controlled Substances Act.
One may be found to be an abuser based on the medical findings of the recognized physicians. Most of the time without the admission, the physician would not know whether the applicant had taken controlled substance in the past. Believing that honesty has its rewards, applicants admits to past use of drugs not knowing that their admission may mean the end of their dream to come to the US. This is the harsh reality on how this ground for inadmissibility is being applied to future immigrants in the US.
There is just one minor exception based on relevant regulation. A person is not inadmissible as a drug addict or drug abuser if he has not used a psychoactive substance within the last three years. (9 FAM 40.11 N.9.5)
In your case, you mentioned that you have not been prosecuted or convicted for a drug offense, hence, the ground for your inadmissibility is based on “health related ground” instead of a criminal ground of conviction for controlled substance or marijuana.
For health related grounds, you must be informed that there is no waiver for drug abusers or drug addicts. What you need to show is that you have not used the “psychoactive substance” abuse for the last three years as per regulations of the Department of State. To be able to prove that you are sober, you may want to get a medical certificate from a recognized physician of the US Embassy consular section to attest to the fact that you have not taken any more marijuana. The physician will issue such favorable findings after your interview or undergoing another medical examination.
Based on your letter, you stated that you had used marijuana two or three times a year prior to your interview on January 21, 2009. It is not indicated whether you admitted this fact to the interviewing officer. If you did admit to use of marijuana three times a year, this means that you were not sober yet for the last three years. You may want to wait until you have proven that you are sober for at least three years before having your immigrant visa filed again by your US citizen spouse. The one year deadline is a period of time given to you by the consular officer to provide evidence of sobriety. If you are not able to provide evidence within that time, your US citizen spouse may re-file a petition for immigrant visa again at the appropriate time when you are able to prove that you are no longer considered a “user”. I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
