David was 17 years old when he entered the United States on a student visa. In 2000, he was convicted of misdemeanor marijuana possession for having on his person 5 grams of marijuana within the vicinity of his school. After his conviction, and completion of his sentence, David’s parents compelled David to return to the Philippines instead of facing removal proceedings before an immigration judge.
David’s father filed an immigrant petition on his behalf, and in October 2015 his priority date became current. He is now ready to apply for his immigrant visa “green card” application with the US Embassy in Manila. Despite the fact that David’s conviction occurred fifteen years ago, David will need to disclose the conviction in his immigrant visa application.
David is afraid that his past criminal conduct will prevent the issuance of his immigrant visa. What must he do to enable the consular officer to approve his visa? Will he be barred from receiving a U.S. visa because of his prior conviction?
Conviction of Controlled Substance
A person who is convicted of any offense related to controlled substances as defined under the federal law are deportable, or inadmissible and are barred from receiving future visas. There are certain offenses related to illegal drugs or controlled substances however that does not fall within inadmissibility category for immigration purposes. It is important to determine the type of illegal drug or controlled substance involved and whether it has an adverse immigration consequence. Marijuana is defined as a controlled substance for inadmissibility grounds. Fortunately, there is an exception under the law. Although an applicant may be found inadmissible, the applicant may not suffer any immigration consequences if the case falls under the “personal use” exception. This means that an applicant for visa who has a single conviction of simple possession of 30 grams or less of marijuana may still be approved for the immigrant visa provided a waiver is filed and granted.
Discretionary Waiver
Under the “personal use” exception, David may apply for a waiver under INA Section 212(h) with the U.S. Citizenship and Immigration Services after the consular officer finds him ineligible to apply for the visa because of his criminal conviction for possession of marijuana. In his waiver application, David will need to show that he has a U.S. citizen or permanent resident spouse, parent, son or daughter and that the denial of his admission would result in “extreme hardship” to that relative. Proving extreme hardship is complicated but once it is established, the waiver will be granted. Once the waiver is granted, the immigrant visa may be issued despite the existence of a prior drug conviction.
It is important to note that there are cases where the immigrant visa applicant may not have a criminal conviction for marijuana possession or usage but still be denied a visa. This happens if there is a finding that an individual is found to be a drug abuser or a drug addict, or has admitted to drug usage in the past, after a medical examination by the accredited physician. In this case, the discretionary waiver does not apply.
(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, facebook.com/tancincolaw, tancinco.weareph.com/old or (02)721-1963)
