The Visa Examiners have quoted section 212(a)(2)(A)(i)(II) to render many Filipinos ineligible for visas on grounds of "criminal" inadmissibility. Many Filipino clients applying for either family-based immigrant visas or nonimmigrant K-1 Fiance(e) or K-3 Spousal Visas can be denied visas at a scheduled interview at any US Consulate for admitting certain facts to medical examiners.

INA §212(a)(2)(A) states the following:

(2) Criminal and related grounds. -

   (A) Conviction of certain crimes. -

        (i) In general. - Except as provided in clause (ii), any alien convicted of, or who admits committing acts which constitute the essential elements of -

             (I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

             (II) a violation of (or conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances act (21 U.S.C. 802)), is inadmissible.

Notice the Act does not require a conviction. Simply an admission of controlled substance usage will render a prospective immigrant inadmissible. The FAM or Foreign Affairs Manual is the manual visa examiners refer to as a guide to understanding the application of the Immigration and Nationality Act (INA).

Volume 9, Section 40.21(b) of the FAM states the following regarding a waiver of inadmissibility:

9 FAM 40.21(b) N5 INA 212(h) Waiver

N5.1 Principal Alien - An immigrant alien who is ineligible under INA 212(a)(2)(A)(i)(II) insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana is eligible to apply for a waiver of ineligibility under INA 212(h) if it is established to the satisfaction of the Attorney General that:

(1) The activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for visa;

(2) The alien's admission to the United States would not be contrary to the national welfare, safety, or security, and

(3) The alien has been rehabilitated.

N5.2 Certain Relatives of U.S. Citizens or LPRs - An alien immigrant who is the spouse, parent, son or daughter of a U.S. citizen or an alien lawfully admitted for permanent residence in the United States may apply for a waiver under INA 212(h) if:

(1) The principal alien was found ineligible under INA 212(a)(2)(A)(i)(II) insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana;

(2) It is established to the Attorney General's satisfaction that the exclusion of such alien would result in extreme hardship to the U.S. citizen or lawfully resident spouse, parent, son, or daughter, and

(3) The Attorney General has consented to the alien's applying or reapplying for a visa to the United States.

Recent trends in cases filed and processed through the U.S. Embassy in Manila have indicated that many Filipino people are being denied visas on admissions of marijuana usage during rebellious high school or college years.

Please be aware that candidates for immigrant visas can be denied visas and adjudicated as criminally inadmissible without a conviction as evidenced by INA §212(a)(2)(A).

ADVICE: When asked by a medical examiner whether you have ever tried "pot" or marijuana even once, ALWAYS be truthful and honest with your answer. If you have tried marijuana, consider when you last used it. If it is more than 15 years before the date of your application for a visa, you may qualify for a 212(h) waiver of inadmissibility. If, however, you have tried it within the last 15 years, you will not qualify for a waiver unless you are either a spouse, parent, son, or daughter of a U.S. citizen or permanent resident. The usage cannot be more than one single offense and you must establish that the qualifying U.S. citizen or permanent resident will suffer extreme hardship if the Attorney General does not consent to your reapplication for a visa to the US.

If you have experienced the above or have any questions, please feel free to email me directly at dcann@cannlaw.com.

---Posted by Denise S. Cann