visa for fiance w/ marijuana conviction

[Paigette 0]

About two weeks ago I filed a 129-F petition for my fiance, who lives in New Zealand. However, we are worried about our chances of success because he has a 2004 conviction for possession of marijuana (2-3 grams), AND possession of utensils for cannabis use (part of the same incident).

Does anyone have any ideas as to how likely we are to be denied? Also, it seems that the only grounds for the 601 waiver are 15+ years since conviction, and "extreme hardship" (which I think would be very hard to prove, other than the emotional turmoil of separation).

Any help/advice would be greatly appreciated!!!

[payxibka 10,045]

chances of refusal are more than likely... chances of refusal are guaranteed

waiver will be required... while not simple... is doable...

There are a few very qualified members who are very informed about waivers... be patient and they will probably happen by

[canadian_wife 1,819]

Yikes! Drug convictions are not good things for USCIS.

You will need a waiver more than likely. Emotional turmoil (on its own) is not enough to prove extreme hardship. Extreme hardship are listed here

http://www.visajourney.com/forums/index.php?showtopic=316

And remember, there is a reason why is it called EXTREME hardship.

[Minya's wife 24]

About two weeks ago I filed a 129-F petition for my fiance, who lives in New Zealand. However, we are worried about our chances of success because he has a 2004 conviction for possession of marijuana (2-3 grams), AND possession of utensils for cannabis use (part of the same incident).

Does anyone have any ideas as to how likely we are to be denied? Also, it seems that the only grounds for the 601 waiver are 15+ years since conviction, and "extreme hardship" (which I think would be very hard to prove, other than the emotional turmoil of separation).

Any help/advice would be greatly appreciated!!!

Drug convictions, especially as recent as the one your fiance has, can be termed as a visa ineligibility. Below is the paragraph from Section 212(a) of the Immigration and Nationality Act pertaining to controlled substances:

(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(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 having committed, 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 a 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.

At the visa interview, the consular officer will advise you if the law provides for some form of relief, such as a waiver of ineligibility. As payxibka noted, a waiver is do-able, but you must be able to demonstrate an EXTREME hardship for it to be approved. A good lawyer may be of assistance at that time.

-P

[spookyturtle 9,465]

Two good lawyers to consult with are Laurel Scott at http://visacentral.net/ and Heather Poole at http://www.humanrightsattorney.com/. I highly suggest that you get some good legal advice. Some drug convictions can be overcome with a waiver, depending upon the charges, length of time since offense occured, evidence of rehabilitation etc.

[Dakine 26]

About two weeks ago I filed a 129-F petition for my fiance, who lives in New Zealand. However, we are worried about our chances of success because he has a 2004 conviction for possession of marijuana (2-3 grams), AND possession of utensils for cannabis use (part of the same incident).

Does anyone have any ideas as to how likely we are to be denied? Also, it seems that the only grounds for the 601 waiver are 15+ years since conviction, and "extreme hardship" (which I think would be very hard to prove, other than the emotional turmoil of separation).

Any help/advice would be greatly appreciated!!!

I suggest you consider moving to NZ. GREAT country!

[Tilanna 0]

About two weeks ago I filed a 129-F petition for my fiance, who lives in New Zealand. However, we are worried about our chances of success because he has a 2004 conviction for possession of marijuana (2-3 grams), AND possession of utensils for cannabis use (part of the same incident).

Does anyone have any ideas as to how likely we are to be denied? Also, it seems that the only grounds for the 601 waiver are 15+ years since conviction, and "extreme hardship" (which I think would be very hard to prove, other than the emotional turmoil of separation).

Any help/advice would be greatly appreciated!!!

Hi I'm new here but don't mind if I jump right in. Been through the waiver proces and its no cakewalk.

There are several agencies that charge alot of $$$ but can't guarantee addmissability into the U.S.

A period of 5 yrs since conviction could be construed as a sufficient period of rehabilitation depending on the circumstances surrounding the incident and he'll have to explain his side of the story in a letter.

Providing it was'nt a felony(inditable offence in Canada) there may be a good chance. Since it's a drug charge he will have to provide a letter from a physician stating he doesn't have a drug problem and or, a lab document stating the results of a recent analysis.

The rest is money which is several hundred U.S dollars if he does it himself and a couple of thousand more if you use an attorney who will likely make your fiance do most of the leg work anyway.

The biggest issue is the time and that take several months from the time the application is in the hands of the border/immigration officials. Also it's only good for a year so that within six months of receiving the waiver(assuming it's granted) he'll have to start all over!

The second time they grant him one(assuming it was granted the first time) it may be valid for a longer period but again, there's no guarantee.

Sorry if it sounds negative but I was refused the time( was engaged to a U.S. citizen) I applied and have been looking into reapplying now that some time has elaspsed in order to satisfy the adjudicators concerning my rehabilitation.

They also stated that my reason for wishing to enter the U.S. was'nt sufficient to overcome the negative factors even though I had enough supporting letters up my yin yang to claim hardship.

Good luck.

Til

Edited April 2, 2009 by Tilanna

[Paigette 0]

Thanks to everyone for all the responses! (And yes, I actually DO very definitely want to move to New Zealand eventually, but have to complete veterinary school and pay off my gargantuan student loans first!) I found this bit, which seems very slightly promising, through the U.S. Department of State website, in the "waiver of ineligibility" document:

212(h) The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-

(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-

(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii) of such subsection or the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien's application for a visa, admission, or adjustment of status, or

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated;

This seems to imply that an alternative to the hardship or 15-year waiver would be a "non-threat" and rehabilitation waiver. His conviction was definitely for less than 30 grams of marijuana, and the only punishment was a fine.

My main remaining question is how to find a good / reasonably priced immigration lawyer??? There are so many out there, so many websites, etc., that I don't even know where to start - and most seem to want a consultation fee before they'll even talk to me.

[payxibka 10,045]

My main remaining question is how to find a good / reasonably priced immigration lawyer??? There are so many out there, so many websites, etc., that I don't even know where to start - and most seem to want a consultation fee before they'll even talk to me.

I think we call that an oxymoron

[Tilanna 0]

This seems to imply that an alternative to the hardship or 15-year waiver would be a "non-threat" and rehabilitation waiver. His conviction was definitely for less than 30 grams of marijuana, and the only punishment was a fine.

I hate to burst your bubble but....based upont the date of his conviction(2004) It seems to indicate he has to wait another 10 years to apply in order to be considered under that that condition otherwise he has the same chances as anyone else. Its not a 15 year waiver, it's a 15 year waiting period.....

Til

[Paigette 0]

Yeah, I was just using the term "15-year waiver" as shorthand for "15-years-past-conviction waiver."

Anyway, if we read the waiver law carefully, the word "OR" after clause (i) seems to imply that an alternative to having a 15-year-old conviction is being a non-threat AND being rehabilitated.

[spookyturtle 9,465]

Check out the lawyers in my earlier post. Also, check out http://immigrate2us.net/forum/index.php It is a forum for waiver information. You need to get some good legal advice.

[Old Dominion 26]

While it is true that the Justice Department can override certain provisions of the immigration laws, the Department of State would need to request such overriding. Given the current problems in the US with marijuana and other narcotics trafficking, there is virtually NO chance the DOS would take a second look at that conviction before denying the visa so soon after it occurred.

[blueblue 0]

Paige,

This section of the law (212(h)) could be applicable in your case. I believe the official reading is with the "or", however I have also seen it on government websites with "and" between point 2 and 3. The FAM on DOS site actually reads "and" http://www.state.gov/documents/organization/86945.pdf A 212(h) waiver provides for a waiver for an immigrant visa for anyone convicted of a CIMT or simple possession if those 2/3 provisions are met. No qualifying relative or hardship standard is required. However, your fiance would also be eligible for a 212(i) waiver because you are a qualifying relative and with this waiver you will need to prove extreme hardship.

However, in order to be able to file the waiver only ONE drug conviction is allowed. If there are 2, it is game over. When your approved fiance petition reaches the consulate, they will require your fiance to provide copies of the court records of the conviction. He will definitely be denied the visa, whether or not they will say he can file the waiver is TBD. You should review this with an attorney before hand to be sure that the second conviction, even though it is for paraphernalia and was part of the same incident, you want to make sure it is another going to be considered a second drug related conviction. Read this case for info on conviction of paraphernalia - on the face of it, it appears he has 2 drug related convictions.

http://caselaw.findlaw.com/data2/circs/7th/072502p.pdf

No. 07-2502

ARTURO ESCOBAR BARRAZA,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

____________

ARGUED FEBRUARY 27, 2008—DECIDED MARCH 13, 2008

You will want to confer with the attorney on this because if there are 2 drug convictions - one for possession of the drug and another for possession of paraphernalia, that will leave you in the worst position of having your fiance never eligible for a waiver and therefore neither for an immigrant visa under current law. You may also want to talk with a criminal attorney to see if there is a way to vacate or otherwise eliminate these convictions. An expungement won't do it unless they were incurred in the 9th Circuit.

To clarify another point, Tilanna's reference to a waiver (212(d)(3)) she had via Canada above is for a non-immigrant visa. That doesn't apply in your case because unless you were both living in NZ and had proof of strong ties there, they wouldn't give him a non-immigrant visa because of your relationship. They would assume he was an intending immigrant.

Here are a list of attorneys that are familiar with and recommended for waiver cases. http://immigrate2us.net/forum/showthread.php?t=889

All the best!!

[broma25 2]

I would certainly not grasp at any straws or read too much into wording....USCIS treat drug crimes very seriously. I would not be suprised at all if you get a denial.

Sorry, but I wish you well.... and lots of luck cos you'll need it.